Urmila Devi vs State of Bihar and Others

Samarendra Pratap Singh, J.—In the instant writ petition the petitioner prays for quashing the order dated 20.2.2008 passed by the learned F.T.C. 5, Patna in S.T. No. 419 of 1995, whereby and whereunder the learned court below rejected the prayer of the petitioner to recall the order dated 13.4.2007 by which fresh process under sections 82 and 83 Cr.P.C. was directed to be issued. The petitioner assailed the orders on two grounds. The first ground being that property sought to be attached did not belong to accused, rather it belong to the petitioner. Secondly, no(s/c) attachment order can be issued u/s 83 Cr.P.C. only after 30 days of issuance of proclamation u/s 82 Cr.P.C. One Nandeshwar Singh, the husband of the petitioner is an accused in Digha P.S. Case No. 141 of 1994 u/s 302 of the Penal Code and section 27 of the Arms Act which is pending for trial. It appears that the husband of the petitioner was granted provisional bail for two weeks by this court by order dated 8.5.1996 passed in Cr. Misc. No. 6525 of 1996 with a direction to surrender on 25.5.1996 but he did not surrender on the aforesaid date. In fact he has not surrendered till today. In the meantime the petitioner lodged a case being Pirbahore P.S. Case No. 156 of 1996 stating that her husband was kidnapped by some miscreants. However, in course of investigation the police found the case of kidnapping to be false.

It would be relevant to state here that the process under sections 82 and 83 Cr.P.C. were issued by the learned Magistrate in the year 1996 and the property of accused was attached, but still the petitioner''s husband did not surrender and regained at large. In course of time the case was committed to the court of sessions and the trial court by order dated 8.1.2008 passed a composite order under sections 82 and 83 Cr.P.C.

Learned counsel for the petitioner submits that the process under sections 82 and 83 Cr.P.C. cannot be issued simultaneously. He submits that section 82 Cr.P.C. deals with the proclamation for person absconding evading arrest, despite issuance of warrant. Section 83 Cr.P.C. deals with attachment of property of person absconding. He further submits that the order of attachment of property, moveable or immovable u/s 83 Cr.P.C. can only be issued when the proclamation for person absconding u/s 82 Cr.P.C. has remained in publication for minimum period of thirty days. In support of his contention, he relied upon a decision of this court in the case of Deo Narayan Singh vs. State of Bihar, 1981 Cr.L.J. 1672.

The moot question is that once earlier process under sections 82 and 83 Cr.P.C. has been issued in accordance with the provisions under the Act, whether a subsequent order attaching the non-attached properties of the absconder accused u/s 83 Cr.P.C. will be issued only after 30 days of issuance of proclamation u/s 82 Cr.P.C. In other words, if case lingers for a long time then every time the court passes order u/s 83 Cr.P.C. does it necessarily have to pass order u/s 82 Cr.P.C.

Section 82 (1) of Cr.P.C. reads as follows:-

"If Any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation.

The law provides that if after issuance of proclamation u/s 82 Cr.P.C. the absconding accused does not appear even after thirty days of its publication, necessary order of attachment can be passed u/s 83 Cr.P.C. Now if after attachment of the property, the absconding accused still does not appear, the court is not helpless to again pass order of attachment in respect of his unattached properties to compel his appearance. In such situation the Magistrate'' can again resort to process under sections 82 and 83 Cr.P.C. or he can straight away take recourse to section 83 Cr.P.C. as recourse to section 82 Cr.P.C. has already been taken in the past.

Thus, in such situation, every time a Magistrate take recourse to section 83 Cr.P.C. it is not incumbent upon him to wait for the mandatory period of thirty days as provided u/s 82 Cr.P.C. if recourse to that section has already once been taken earlier in the past.

This court, however, reiterates that when the process u/s 82 and 83 Cr.P.C. is issued for the first time, then before taking recourse to section 83 Cr.P.C. the court has to wait till at least for thirty days, from the date of publication of proclamation u/s 82'' Cr.P.C.

Learned counsel for the State informs that the process u/s 83 Cr.P.C. has already been executed and he rightly submits the relief prayed for by the petitioner on this score has also become infructuous. This court observes that if the petitioner believes that she has interest in property attached, she can always make claim and objection u/s 84 of the Cr.P.C.

Learned counsel for the petitioner submits that the petitioner is not an accused, rather her husband is an accused in the instant case and therefore she should not be harassed merely because the person alleged to be absconding is her husband.

It would appear from the materials on record that it is the petitioner''s husband who is an accused in the instant case and under the law of land no person who is not an accused, cannot be subjected to harassment or torture in lieu of absconding accused. In view of discussions made above, I do not find any reason to interfere with the impugned order dated 20.2.2008 passed by the F.T.C. V. Patna.

With the aforesaid observations, this writ petition stands dismissed.