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2002 DIGILAW 630 (JHR)

Kuldeep Kaur v. State Of Jharkhand

2002-06-10

VINOD KUMAR GUPTA

body2002
ORDER V.K. Gupta, C.J. 1. The petitioners case is that pursuant to the purported order of attachment passed under Section 83 of the Code of Criminal Procedure in a pending criminal case against one Bir Inder Singh Randhawa filed by respondent No, 8, Amar-jeet Singh Randhawa, the petitioners property has been attached. Petitioners contention is that the aforesaid criminal case was filed by Amarjeet Singh, respondent No. 8 and in that criminal case proclamation in terms of Section 82 of the Code of Criminal Procedure (Code, for short) was issued by the learned Magistrate and that after the issuance of proclamation under Section 82 of the Code, on an application filed by the police in terms of Section 83 of the Code, an order of attachment of property was passed. The petitioners contention is that the property sought to be attached in compliance with the aforesaid attachment order actually belongs to the petitioner and that it does not belong to the accused Bir Inder Singh. For the reasons that I assign hereafter, I need not go into the question whether the property attached belongs to the petitioner or not, or whether it at all belongs to the accused Bir Inder Singh. 2. The complaint case was filed by respondent No. 8 against Bir Inder Singh with respect to some dispute relating to the realisation of rental income originating from some immovable property. Respondent No. 8 and Bir Inder Singh are brothers. The petitioner is the mother of these two brothers. The petitioners husband and the father of these two brothers died some time back and before his death he had executed a Will which is the subject matter of probate proceedings pending in a competent civil Court. In the meanwhile, respondent No. 8 appears to have filed the aforesaid complaint case against Bir Inder Singh. Bir Inder Singh filed a petition under Section 482 of the Code in this Court praying for quashing of the proceedings in the aforesaid criminal complaint. The main reason and ground in the aforesaid 482 petition was that the subject matter of the complaint was of a civil nature as the dispute, if at all, related to the realisation of rental income from an immovable property. The aforesaid 482 petition has been admitted and this Court has passed an order staying further proceedings in the aforesaid trial. The aforesaid 482 petition has been admitted and this Court has passed an order staying further proceedings in the aforesaid trial. As noticed at the outset, purportedly because accused Bir Inder Singh in the aforesaid complaint was allegedly evading arrest, an order under Section 82 of the Code was passed by the learned Court below. That was on 13th February, 2002. On 16th March, 2002, the learned Court below on the application of the police passed an order purportedly under Section 83 of the Code. Both the orders are quoted verbatim herein below for ready reference : "13.2.2002 : The I/O return W/A and Prayer to issue under Section 82/83 Cr PC against the accused Birendra Singh Randhawa as he is evading his arrest. Seen, prayer is partly allowed issue only process under Section 82 Cr PC against the said accused." "16.3.2002 : The I/O return un-ex-ecuted process under Section 82 Cr PC and prayer to issue process under Section 83 Cr PC against the accused Birendra Singh Randhawa as he is evading his arrest. Seen, prayer is allowed. Issue under Section 83 Cr PC against the said accused." 3. Sub-section (1) of Section 83 of the Code, which relates to the Jurisdiction and power of a Court ordering the attachment of a property, reads thus : "83. Attachment of property of person absconding--(1) The Court issuing a proclamation under Section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person : Provided that whether at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued : (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local jurisdiction of the Court, it may order the attachment simultaneously with the issue of the proclamation." 4. A bare reading of the order dated 16th March, 2002 clearly suggests that it was passed without jurisdiction and without observing the basic requirements emanating from Sub-section (1) of Section 83 of the Code. A bare reading of the order dated 16th March, 2002 clearly suggests that it was passed without jurisdiction and without observing the basic requirements emanating from Sub-section (1) of Section 83 of the Code. In fact, a reading of this order suggests that it also appears to have been passed without any application of mind as far as the learned Court below is concerned. The order actually opens with the recital that the process issued under Section 82 of the Code has been returned unexecuted. I fail to understand the purport and meaning of this expression, because any process issued under Section 82 of the Code does not require any execution in the sense, in which its mention has been made in the order dated 16th March, 2002. Section 82 of the Code deals with the issuance of a proclamation by a Court if it has reasons to believe that any person against whom a warrant has been issued has either absconded or is concealing himself so that such warrant can not be executed. On being satisfied, any such Court may publish a proclamation requiring such an accused to appear at a specific place and at a specified time. Subsection (2) of Section 82 deals with the subject of publication of such a proclamation and Sub-section (3) thereof is suggestive of the presumption of the validity of the proclamation because it says that the statement in writing by the Court issuing proclamation should be treated as a conclusive evidence that the requirement of this section has been duly complied with. In the aforesaid backdrop, therefore, it is not open to any one to suggest that a proclamation under Section 82 can be returned unexecuted. The expression "executed" in its abstract sense does not apply to a proclamation issued under Section 82 of the Code because the proclamation, after the same is issued, is required to be published in the manner prescribed in Sub-section (2) of Section 82 of the Code. A publication per se cannot be equated with "execution". 5. Again, a bare look at the order dated 16th March, 2002 also suggests that the learned Court below did not record any reasons as to why it was issuing an attachment order in terms of Section 83 of the Code. A publication per se cannot be equated with "execution". 5. Again, a bare look at the order dated 16th March, 2002 also suggests that the learned Court below did not record any reasons as to why it was issuing an attachment order in terms of Section 83 of the Code. This despite the mandatory requirement of reasons to be recorded in writing being incorporated before any such order is issued by the Court. 6. Whenever a Court issues a proclamation under Section 83 of the Code, of course, for reasons to be recorded in writing, it must mention in the order itself the details of property which are required to be attached. The expression "order the attachment of any property, movable and immovable, or both" as occurring in subsection (1) of Section 83 leaves no room for any doubt that the details of the property sought to be attached must be incorporated in the order to be passed by a Court in terms of Section 83 of the Code. The order dated 16th March, 2002 is totally devoid of any details or particulars of the property sought to be attached. 7. Looked at from any angle and examined from any point of view, the order dated 16th March, 2002 suffers from patent illegality apparent on the face of the order and the same has been passed without jurisdiction and in total disregard to the mandatory requirements of law. For the reasons stated above, the order also appears to have been passed without any application of mind and in a mechanical exercise of jurisdiction. 8. As mentioned at the outset, because the order dated 16th March, 2002 is held to be patently bad in law, there is no need for me to go into the question whether the property attached actually belonged to the petitioner or not. 9. For the foregoing reasons, this petition is allowed. The order dated 16th March, 2002 is quashed and set aside. It is ordered and directed that the property attached pursuant to this order shall stand released immediately and be restored within one week from today. Respondent Nos. 5 and 6 held responsible to implement and comply with this direction in letter and spirit.