Nagendra Pathak @ A.N.N. Pathak vs State of Bihar

Chandra Mohan Prasad, J.—The revision is against the order dated 16th March, 2004 of the Special Judge, C.B.I. (A.H.D.), Patna passed in Special Case No. 64 of 1996 (R.C. 63/A/96) whereby the learned Judge has ordered for issuance of process of attachment u/s 83 of the Code of Criminal Procedure (hereinafter, in short, referred to as ''the Code'') against the petitioner. Learned Counsel for the petitioner assails the order on the ground that before issuance of the process, the learned Special Judge, did not consider the provisions under proviso A & B to Section 83 of the Code, which provides that the court can issue a proclamation simultaneously, with the process u/s 82 of the Code, if it is satisfied by an affidavit or otherwise that the person in relation to whom the proclamation is to be issued, is about to dispose of the whole or part of his property or is about to remove the whole or part of his property from the local jurisdiction of the court. Learned Counsel submits that while passing the impugned order of attachment, the learned Special Judge did not consider the mandatory provisions of law. The learned Standing Counsel for the C.B.I. referred to the provisions under subsection (1) of Section 83 of the Code which provides that the court issuing a proclamation u/s 82 of the Code, may for the reasons to be recorded in writing at any time, after the issue of proclamation, order the attachment of property, movable or immovable or both, belonging to the proclaimed person and it is argued that the court issuing a process u/s 82 of the Code has got all authority u/s 83(1) of the Code to issue a proclamation under this provision of law, i.e. 83(1) of the Code, any time, after issuance of proclamation u/s 82 of the Code on grounds to be mentioned in writing. A perusal of the impugned order shows that the C.B.I. had filed a petition before the learned Special Judge praying for issuance of process u/s 83 of the Code and it was shown that the proclamation u/s 82 of the Code was published, on 10th February 2004 and 13th February, 2004 and such publication was filed in Court on 26th February, 2004.

Considering these facts, the learned Special Judge, mentioning the reasons that the proclaimed person having not surrendered in Court, issuance of process u/s 83 of the Code was ordered. Thus, the reason mentioned by the Special Judge is that despite issuance of proclamation, the petitioner did not surrender, hence, issuance of attachment process u/s 83(1) of the Code was ordered.

Considering the provisions u/s 83(1) of the Code, I find that the learned Special Judge has got authority to issue a process u/s 83 of the Code, when he mentions reasons for issuance of such process. In the instant case, the learned Special Judge has mentioned the reasons that despite publication of proclamation on 10th February, 2004 and 13th February, 2004, the accused did not surrender and these reasons, in my opinion, are sufficient for passing the impugned order.

So far the question raised by the Learned Counsel for the petitioner that the learned Special Judge was required to mention the specific reasons before issuance of attachment process that the accused was likely to dispose of his property beyond the jurisdiction of the court concerned, I find that compliance of these provision is required only in a case when the court concerned issues a proclamation under proviso A & B of Section 83 of the Code simultaneously with the process u/s 82 of the Code. That is not the case here. In the instant case, the proclamation of attachment has been issued u/s 83(1) of the Code.

Learned Counsel for the petitioner tried to argue some other matters, including that the petition of the petitioner for being approver is also pending before the learned Special Judge, but those points are not relevant to the issues in this case, which therefore, need not be discussed. Under the circumstances, I find no merit in this revision petition. It is accordingly, dismissed.