SUDHENDU ALIAS CHUNNU SRIVASTAVA v. STATE OF U P — 1990 DIGILAW 1255 (ALL)

S. I. JAFRI, J. Sudhendu alias Chunnu Srivastava has filed this application under Article 226 of the Constitution of India praying that the order dated 3. 2. 90 passed by the Chief Judicial Magistrate, Gorakhpur under Section 82, Cr. PC. against the petitioner in Crime No. 149 of 1989, under Section 395 and 397,i. P. C. be quashed. 2. This order was passed on the application dated 3. 2. 90 of the Station Officer of Police Station Cantt. Gorakhpur praying for the issue of proclamation and attachment under Sections 82 and 83 Cr. P. C. 3. This case relates to an occurrence which is said to have taken place at the house of complainant Paritosh Kumar Bagar, resident of Judges Compound, Gorakhpur at whose house a dacoity was committed by 8 or 9 unknown dacqits at 11. 30 a. m. on 13. 5. 89 in which the dacoits made good their escape after taking away clothes, ornaments and cash. A report of the said occurrence was lodged by Paritosh Kumar Bagar at Police Station Cantt. Gorakhpur at 12. 30 p. m. the same day alleging that his property consisting of ornaments, clothes and cash were looted by unknown dacoits in his house in his presence as well as in the presence of other inmates of his house including the wife, children and servants. A case under Sections 395 and 397, I. P. C. was, consequently, registered at the police station on the aforesaid report of complainant Paritosh Kumar Bagar and investigation followed. 4. In paragraph No. 5 of the counter-affidavit given by Sub-Inspector Sri R. B. Yadav of Police Station Cantt. Gorakhpur, it has been stated that on 22. 10. 89 Rakesh Pandey and Vinai Kumar accused were taken into custody by the Police of PS. Cantonment in connec tion with the aforesaid dacoity case and on interrogation they had disclosed the name of the applicant as one of the dacoits. 5. Learned counsel for the applicant contended that the conduct of the police in obtaining the order dated 3. 2. 90 u/s 82, Cr. P. C. from the Chief Judicial Magistrate, Gorakhpur is mala fide. It was contended that from Annexure 2. The copy of the first information report, the address of the complainant Paritosh Kumar Bagar is mentioned as resident of Civil Lines, Judges Compound, Police Station Cantt. Gorakhpur. 2. 90 u/s 82, Cr. P. C. from the Chief Judicial Magistrate, Gorakhpur is mala fide. It was contended that from Annexure 2. The copy of the first information report, the address of the complainant Paritosh Kumar Bagar is mentioned as resident of Civil Lines, Judges Compound, Police Station Cantt. Gorakhpur. Learned counsel further submitted that the applicant is also resident of Judges Compound, Civil Lines, police Station Cantt. , Gorakhpur and he has been very well known to the com plainant and his family members for the lase 10 years. In paragraph No. 7 of the affidavit filed in support of the aforesaid application, it is specifically mentioned that the house of the complainant is just behind the house of the applicant and each and every member of the family of the complainant knows the applicant for the last more than 10 years. In paragraph No. 8 of the counter-affidavit filed by R. B. Yadav, Sub-Inspector of Police Station Cantt. Gorakhpur. It is only mentioned that the distance between the house of the complainant and the applicant is about four furlongs and it is not just behind as stated in the paragraph under reply. However, it was not specifically denied by the Sub-Inspector that the applicant is not known to the complainant and his family members and no affidavit was filed by the complainant in denial. It was further added by the learned counsel that in the application filed by the Sub-Inspector before the Chief Judicial Magistrate u/s 82, Cr. P. C. praying for issue of proclamation the Sub-Inspector had given the address of the applicant as the of Judges, Compound, Civil Lines, Police Station Cantt. 6. Under the circumstance, in view of the non-specific denial by the Sub-Inspector to the effect that the applicant was not known to the complainant and his family members from before the occurrence and also in the absence of any affidavit in denial by the complainant. It will be difficult to believe that the applicant was unknown to the com plainant and his family members from before the occurrence. Learned counsel further pointed out that neither the complainant had named the applicant in the first information report nor there is any mention about the name of the applicant in the statements of the witnesses recorded by the Investigating Officer under Section 161, Cr. Learned counsel further pointed out that neither the complainant had named the applicant in the first information report nor there is any mention about the name of the applicant in the statements of the witnesses recorded by the Investigating Officer under Section 161, Cr. P. C. and this fact mentioned in the affidavit filed in support of the application has not been controverted in the counter-affidavit filed by the sub-Inspector. 7. Learned counsel submitted that from the above circumstance, it is abundantly clear that an attempt has been made by the Investigating Officer to falsely implicate the applicant in this case for some ulterior motive and as such the implication of the applicant in the case is mala fide. Learned counsel has drawn my attention to the allegations contained in paragraph No. 5 of the affidavit wherein it is said that the applicants father is a leading Criminal Lawyer of District Court, Gorakhpur and it was in the year 1985 that one Narendra Rai, upon whom police had announced reward for his arrest, had success fully surrendered in the Court of Gorakhpur with the help of father of the applicant and since then the police had become annoyed with his father. Consequently the police had falsely implicated the applicant in a theft case in which he was granted bail by the Chief Judicial Magistrate, Gorakhpur. My attention was drawn to paragraph No. 6 of the counter-affidavit filed by sub-Inspector R. B. Yadav, wherein the contents of paragraph No. 5 of the application of the aforesaid filed in support of the application of the applicant were accepted as correct. Answer to paragraph No. 5 as given in the paragraph No. 6 of the counter-affidavit is quoted below. "that the contents of paragraph No. 5 of the affidavit are correct and the Police Station Cantt. has no concern with the case mentioned in the paragraph under reply. " 8. I have given my utmost anxious consideration to the facts and circumstances of the case as discussed above and I am fully satisfied that the implication of applicant in Crime No. 159 of 1989, under Sections 395 and 397, I. P. C. by the Investigating Officer of P. S. Cantt. Gorakhpur is mala fide in violation of Article 21 of the Constitution and therefore, the order dated 3. 2. 1990 passed under Section 82, Cr. Gorakhpur is mala fide in violation of Article 21 of the Constitution and therefore, the order dated 3. 2. 1990 passed under Section 82, Cr. P. C. by the Chief Judicial Magistrate, Gorakhpur is set aside and police of Police Station Cantt. Gorakhpur is restrained from arresting the accused in connection with Crime No 149 of 1989, under Section 395 and 397, I. P. C. of Police Station Cantt. Gorakhpur. I further hold that the-conduct of the Investigating Officer is not above board and the investigation against the accused is malicious mischievous and tainted. 9. Instances are not uncommon when there had been clear abuse of the provisions of Sections 82 and 83, Cr. P. C. by the police during investigation of a case leading to harass ment to the parents of the absconding accused belonging to a joint family. The provisions of Sections 82 and 83 of the Criminal Procedure Code, 1973, correspond to Sections 87 and 88 of the Criminal Procedure Code 1898. These provisions contained in Sections 87 and 88 Cr. P. C. were adopted by our Legislatures in the new Code as Sections 82 and 83 Cr. P. C. It would be worthwhile to mention that the provisions of Sections 87 and 88 of the old Code smack of colonial oppression inasmuch as that the then Rulers had no regard at heart for the human dignity of the people of this country. This disregard for human dignity is also eloquent from the fact that no norms or guide lines were provided for attachment of property of absconding accused under Section 88 of the old Code. The purpose behind this oppressive legislation by the then Rulers was to afford a free hand to the Investigation Officers to secure the object by all means while attaching the property of the absconding accused. Armed with the nuisance in Section 88 of the old Code the Investigating Officers used to attach all the household effects of the joint family bringing in its trail the untold harassment, miseries and substantial loss to the members of the entire family irrespective of the factum that they had no role to play in the absconding of the accused etc. It now amounts to showing a disrespective to the provisions of our Constitution that in the wake of adoption of the provisions of Section 87 of the old Code in our new Code as Section 83, Cr. P. C. Such ignorable practice of harassment is still operating and it would not be too much to say that the puissance of this provision i. e. Section 83 of the New Code sometimes result in the misuse by the Investigating Officers. It is not an uncommon sight that if a member of a joint family is involved in some offence and is found to be absconding, the Investigating Officer after obtaining the order under Section 83 Cr. P. C. by the Magistrate, attaches all the movable properties owned and pdssessed by the entire joint family. The Properties sought to be attached sometimes consist of the clothes, the ornaments, the food stuffs, the cattle and more so even doors and windows not belonging to the person who has absconded. If it is not an oppressive provision resulting in harassment, miseries and even loss to the other members of the joint family, then what else it is. Besides, this old practice which is opperassive in nature, is quite inconsistent with the democratic norms of this largest democracy of the world. After winning freedom, a new complexion was given to the role of the law protecting agencies and human dignity has been recognized as sacrosant as one inter-twined with our democratic norms. In our democratic polity police has been perceived as one behaving consistent with the provisions of our Constitution and it cannot be allowed to act in a manner smacking of colonial rule. To elucidate my point further, the object behind attachment of the property of an absconding accused is not to punish him and his family members but it is a means to compel the appearance of the absconding accused before the courts of law at the earliest. I am fortified in my view by the Constitu tion of India inasmuch as that after adoption of the Constitution, the citizens of India have been made entitled to protection under Article 21 asmuch as under Article 300-A of the Constitution of India. Article 300-A of the constitution runs as under "300-A - Persons not to be deprived of property, save by authority of law. Article 300-A of the constitution runs as under "300-A - Persons not to be deprived of property, save by authority of law. " Under the circumstances, it is just and proper that the Investigating Officers while attaching the property, must restrict their hands to the personal movable property of the absconding accused only. The Investigating Officers must apply their mind while attaching the property of the absconding accused. Likewise, a duty is also cast on the Magistrate while passing an order under Section 83, Cr. P. C. to direct the Investigation Officer to restrict the attach ment to the personal properties of the absconding accused only. However if it strickles to the notice of the courts that the Investigating Officers have over-stepped the bounds in attaching the property of an absconding accused person by taking away with him the personal properties of other inmates of the house or the joint property of the family, for instance, the clothes, ornaments and other valuables of the parents of the accused or of brothern or sist&s of the accused including cattle and other house-hold effects, such investigating officers shall be held responsible for violation of the mandatory provisions contained under Article 300-A of the Constitution of India. 10. After hearing the submissions made by the learned counsel for the parties, the writ petition is allowed and the order dated 3. 2. 90 passed by the Chief Judicial Magistrate, Gorakhpur under Section 82, Cr. P. C. is set aside and further investigation in the case Crime No. 149 of 1989 under Sections 395 and 397, I. P. C. , PS. Cantt. Gorakhpur is quashed against the applicant only. 11. Before parting with the judgment, I would like to observe that Investigating Officers while conducting the investigation should act in a manner consistent with the rorms and guidelines laid down in the body of the judgment in order to assure fairness in the investigation of the case. 12. Office is directed to send copies of this order and judgment to the Director General of Police, (Prosecution) U. P. , Lucknow and also to all District Judges and Chief Judicial Magistrate of the State for their guidance. Petition allowed. .