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2005 DIGILAW 757 (PAT)

Krishna Murari Yadav v. State Of Bihar

2005-08-24

MRIDULA MISHRA

body2005
Judgment 1. Heard learned counsel for the petitioner, the State and the counsel appearing for the informant. 2. Petitioner Krishna Murari Yadav, Mayor of Patna Municipal Corporation, named accused in Kotwali P.S. Case No. 292 of 2005, has filed this application for quashing the order dated 28.7.2005 and 4.8.2005, passed by the C.J.M., Patna in Kotwali P.S. Case No. 292 of 2005. By order dated 28.7.2005 the C.J.M. Patna has issued warrant of arrest under Section 73 of the Cr.P.C. against the petitioner and other accused persons, on an application filed by the Investigating Officer of the case. By order dated 4.8.2005 an order of proclamation has been passed under Section 82 of the Criminal Procedure Code (hereinafter to be referred to as the Cr. P.C.). The petitioner has challenged both these orders on the ground that the orders have been passed in violation of the settled law as well as against Rule 236 of the Civil Court Rules, Rules 118, 288 and 289 of the Bihar Police Manual, and mandatory provisions under the Criminal Procedure Code. 3. Facts of the case are that one Naresh Kumar Yadav gave his Fardbeyan before the police on 25.7.2005 on the same day at about 3 P.M. he got a telephonic message regarding an attack made by unknown criminals in the office of the Bihar State Water Board. The criminals exploded bomb in which his brother Ashok Kumar Yadav, the Chairman of the Bihar State Water Board and others have sustained injuries. Receiving this information he rushed to the place of occurrence and found that his brother has already succumbed to the bomb injury. He came to know from the information collected at the spot that while meeting of the Board was going on, four unknown miscreants youth aged about 20-30 years came on a motorcycle near the office of the Board. Two persons entered into the Chairmans office and directly hurled bomb on Ashok Kumar Yadav who succumbed to the injury. Other persons also sustained injuries. Thereafter miscreants fled away. Informant suspected the hands of Krishna Murari Yadav, the Mayor of Patna Municipal Corporation, Ravindra Kumar, Chief Engineer, Water Board, Sanjay Kumar, the Chairman of the District Board, Patna and the Chief Executive Officer of the Patna Municipal Corporation namely Upendra Sharma. Other persons also sustained injuries. Thereafter miscreants fled away. Informant suspected the hands of Krishna Murari Yadav, the Mayor of Patna Municipal Corporation, Ravindra Kumar, Chief Engineer, Water Board, Sanjay Kumar, the Chairman of the District Board, Patna and the Chief Executive Officer of the Patna Municipal Corporation namely Upendra Sharma. The suspicion has been raised as Ashok Kumar Yadav (deceased) had filed a Public Interest Litigation regarding embezzlement of 14 crores rupees and on the direction of the High Court it was being investigated by the Vigilance Department. In the P.I.L. Ashok Kumar Yadav has made allegations against the Mayor, Krishna Murari Yadav. The deceased was also managing the councilors for removal of the Mayor. Ashok Kumar Yadav had disclosed his apprehension before the informant, his brother regarding the threat enhanced by the accused persons. On the basis of this fardbeyan Kotwali P.S. Case No. 292 of 2005 was instituted on 25.7.2005 for offence under sections 302, 307, 324, 120B/ 34 of the Indian Penal Code and 3/4 of the Explosive Substance Act and the investigation of the case started. 4. Counsel for the petitioner has submitted that the petitioner when came to know about his implication in this case, filed an application for anticipatory bail under Sectior, 438 Cr.P.C. being A.B.P. No. 2344 of 2005 before the Sessions Judge, Patna in which the Sessions has been pleased to call for the case diary and the same is pending. Counsel for the petitioner has submitted that the police case was registered on 25.7.2005 and just after three days on 28.7.2005 the Investigating Officer of the case has filed a petition before the Chief Judicial Magistrate, Patna for issuance of warrant of arrest against all the three accused persons including the petitioner. The C.J.M. passed an order for issuance of warrant of arrest in the margin of the petition itself which shows his total non-application of mind and thereafter another petition was filed by the Investigating Officer of the case on 3.8.2005 requesting therein to issue the proclamation and attachment order under Sections 82 and 83 of the Cr.P.C. The Chief Judicial Magistrate again passed a non-speaking order for proclamation under Section 82 Cr.P.C. in the margin of the application itself on 4.8.2005. This order was also passed without giving any cogent reason for passing the order which is mandatory under the Cr.P.C. Those orders passed by the C.J.M. are without jurisdiction, against the civil court rules, as well as against the provision under Bihar Police Manual, as such fit to be quashed. 5. A counter affidavit his been filed by the State wherein it has been stated that the petitioner is a named accused in ths F.I.R. for a cognizable offence. After the institution of Kotwali PS. Case No. 292 of 2005 the case was taken up for investigation. During the investigation of the case, the place of occurrence was inspected by the Investigating Officer, inquest report of the deceased was prepared, autopsy of the dead body was held by the doctor. According to the post-mortem report the cause of death was shock and haemorrhage on account of injuries caused by bomb. From the aforesaid facts it is evident that the F.I.R. version was given full support from the post mortem report. Several witnesses were examined by the Investigating Officer in course of investigation and the case has also been supervised by the supervising authority. The material collected during the investigation prima-facie indicated petitioners involvement in the crime in question. Since the case has been instituted for the offence which are cognizable as such under section ll(i)(a) Cr.P.C. the police officer is very much authorised to make arrest of the accused even without warrant. Chapter VI of the Cr.P.C. 1973 deals with the process to compell appearance of the accused. Considering the fact that the petitioner being the accused of the aforesaid case was absconding, a prayer was made on behalf of the Investigating Officer for issuance of warrant of arrest under Section 73 of the Cr.P.C. against the accused persons as well as the prayer for issuance of proclamation and attachment as provided under sections 82 and 83 Cr.P.C. Petition for the issuance of warrant of arrest was filed as for issuance of proclamation order and attachment order, issuance of warrant of arrest is necessary. A petition for issuance of proclamation as well as attachment under sections 82 and 83 Cr.P.C. was filed by the I.O. as even after issuance of warrant of arrest the petitioner could not be arrested. A petition for issuance of proclamation as well as attachment under sections 82 and 83 Cr.P.C. was filed by the I.O. as even after issuance of warrant of arrest the petitioner could not be arrested. In paragraph 19 of the counter affidavit it has been stated that the court issuing 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 where at the time of 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. 6. The learned court below after being satisfied with the affidavit filed by the Investigating Officer of the case has been pleased to issue attachment order which is evident from the order dated 9.8.2005 passed by the court. On consideration of the affidavit filed by the Investigating Officer and after hearing the petitioners lawyer and the State this petition is fit to be dismissed. 7. The informant has also entered appearance in this case through his counsel. No counter affidavit has been filed on behalf of the informant. Counsel appearing for the informant has only stated that he adopts the arguments advanced by the counsel for the State. 8. The question for consideration is: (i) Whether the order of warrant of arrest can be issued by the C.J.M. solely for production of the accused before the police in aid of investigation, (ii) Whether the order dated 29.7.2005 and 4.8.2005 passed by the C.J.M., Patna indicate his satisfaction which is mandatory for issuance of any order under Section 73, 82 and 83 Cr.P.C. 9. Counsel for the petitioner has challen ged the impugned orders raising some legal points which are as follows: (i) Whether these orders have been passed considering the provisions for issuance of warrant of arrest and order of attachment under Rule 118, 288 and 289 of the Police Manual. Counsel for the petitioner has challen ged the impugned orders raising some legal points which are as follows: (i) Whether these orders have been passed considering the provisions for issuance of warrant of arrest and order of attachment under Rule 118, 288 and 289 of the Police Manual. (ii) Whether the Magistrate has passed the order dated 29.7.2005 and 4.8.2005 in violation of civil court Rule 238. 10. Section 2(c) of the Cr.P.C. defines cognizable offence as an offence for which, an "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being inforce may arrest without warrant. Under Section 41 of the Cr.P.C. nine category of cases have been enumerated in which a police officer may without an order from the Magistrate and without a warrant, arrest any person. The power of the police to arrest a person without any warrant under Section 41(i)(a) of the Cr.P.C. are confined to such persons who are accused in any cognizable offence, or against whom a reasonable com- plaint has been made, or credible information has been received, or a reasonable suspicion exists of his having been so concerned. 11. Section 73 Cr.P.C. empowers the Chief Judicial Magistrate or a Magistrate of 1st Class to direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non- bailable offence and is evading arrest. 12. This question whether the Magistrate can issue a warrant of arrest solely for the production of the accused before the police in aid of investigation was raised before the Apex Court in the case of State vs. Daud Imbrahim (1997 AIR. S.C. 2494). The Apex Court in paragraph 23 of the judgment has held as follows: "Section 73 of the Code is of general application and that in course of the investigation a Court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of a non-bailable offence and, is evading arrest, the related question as to whether such issuance of warrant can be for his production before the police in aid of investigation. It cannot be gainsaid that a Magistrate plays, not infrequently, a role during investigation, in that on the prayer of the Investigating Agency he holds a test identification parade, records the confession of an accused or the statement of a witness, or takes or witnesses the taking of specimen handwritings etc. However, in performing such or similar functions the Magistrate does not exercise judicial discretion like while dealing with an accused of a non-bailable offence who is produced before him pursuant to a warrant of arrest issued under Section 73. On such production, the Court may either release him on bail under Section 439 or authorize his detention in custody (either police or Judicial) under Section 167 of the Code. Whether the Magistrate, on being moved by the Investigating Agency, will entertain its prayer for police custody will be at his sole discretion which has to be judicially exercised in accordance with Section 167(3) of the Code. Since warrant is and can be issued for appearance before the Court only and not before the police and since authorisation for detention in police custody is neither to be given as a matter of course nor on the mere asking of the police, but only after exercise of judicial discretion based on materials placed before him, it cannot be said that warrant of arrest could be issued by the Courts solely for the production of the accused before the police in aid of investigation. 13. Counsel for the petitioner while assailing the impugned order has stated that the orders of issuance of warrant of arrest by the Magistrate in exercise of jurisdiction under Section 73 Cr.P.C. is in violation of the finding recorded by the Supreme Court in A.I.R. 1997 S.C. 2494. In the present matter, police case was instituted on 25.7.2005 just after three days on 28.7.2005 a vague application was filed before the C.J.M. by the Investigating Officer. This application was in clear violation of Rules 286 and 118 of the Bihar Police Manual. Bihar Police Manual Rule 286 reads as follows: "286:In charge-sheet and final report from cases, when accused against whom criminal charges appear substantiated have absconded, application shall always be made without delay for a warrant." Rule 118(a) deals with the persons who may be declared absconder. Bihar Police Manual Rule 286 reads as follows: "286:In charge-sheet and final report from cases, when accused against whom criminal charges appear substantiated have absconded, application shall always be made without delay for a warrant." Rule 118(a) deals with the persons who may be declared absconder. According to Rule 118(a) the following persons shall be considered to be absconded offenders: (i) Persons charged with cognizable offences against whom there is evidence sufficient to warrant their trial, and who are at large when a charge-sheet or final report is submitted on completion of the police investigation. (ii) Persons who have escaped from police custody or from a jail or lock up; and (iii) Accused persons tor whom, proclamation has been issued under Section 82 Cr.P.C. 14. From the facts, revealed, it is indicated that the Investigating Officer has filed an application for issuance of warrant, in haste just three days after the institution of the police case, at the stage when the petitioner cannot be considered as absconder offender as neither there was sufficient evidence to warrant his trial, nor the chargesheet or final form has been submitted on completion of police investigation. Since the petitioner cannot be treated as an absconder as such filing of an application for issuance of warrant of arrest as provided under Rule 286 of the Police Manual was also uncalled for. On filing of such an application the C.J.M. without judicially considering the material before him has passed an order for issuing non-bailable warrant of arrest against the petitioner and other accused persons. In the margin of the petition, filed by the Investigating Officer, the Chief Judicial Magistrate passed the order, directing issuance of warrant in clear violation of Rule 238 of the Civil Court Rules. According to Rule 238 of the Civil Court Rules, the order-sheet shall be written in English and shall contain all orders passed by the Court. Orders shall not be written on petitions, reports and other similar documents. The serial number and the date of the order passed on any petition shall be noted on such petition. 15. According to Rule 238 of the Civil Court Rules, the order-sheet shall be written in English and shall contain all orders passed by the Court. Orders shall not be written on petitions, reports and other similar documents. The serial number and the date of the order passed on any petition shall be noted on such petition. 15. Counsel for the petitioner submits that the warrant of arrest was issued by the C.J.M. in violation of the provisions under Section 73 Cr.P.C, the Magistrate should not have issued any warrant of arrest against the petitioner and other accused persons just in order to compel the petitioner to appear before the police for adding investigation. Under Section 73 Cr. P.C the Magistrate has got jurisdiction to issue warrant of arrest for appearance of the case before the Court, but not before the police. 16. Counsel appearing for the State has submitted that the facts of the case in A.I.R. 1997 S.C. 2494 and the facts of the present case are totally different. That was the ease in which after submission of the chargesheet and the order of cognizance, the warrant of arrest was issued for some of the accused who were absconding and against whom investigation was going on. In the present case nothing like that has happened, therefore, the submission by the petitioners counsel regarding the application of 1997 A.I.R. S.C. 2494 in the present case has no relevance. 17. Considering the submissions made by the counsel I find that the argument advanced by the petitioners counsel is convincing. The order passed by the C.J.M., Patna for issuance of warrant of arrest in exercise of jurisdiction under Section 73 Cr.P.C. is in violation of Rules 118 and 286 of the Bihar Police Manual as well as Rule 238 of the Civil Court Rules and also against the judicial pronouncement of the Apex Court. 18. Another order which has been challenged by the petitioner is the order dated 4.8.2005 passed by the C.J.M., Patna on a petition filed by the Investigating Officer on 3.8.2005. In this petition composite prayer has been made by the Investigating Officer for issuance of the order of proclamation under Section 82 Cr.P.C. as well as the order of attachment under Section 83 Cr.P.C. This unaffidavited petition has been brought on the record of the case as Annexure-3. In this petition composite prayer has been made by the Investigating Officer for issuance of the order of proclamation under Section 82 Cr.P.C. as well as the order of attachment under Section 83 Cr.P.C. This unaffidavited petition has been brought on the record of the case as Annexure-3. In this petition it has been stated that the accused persons are absconding and there is an apprehension that after disposing of their movable and immovable property, they may abscond. The C.J.M., has passed order under Section 82 Cr.P.C. for proclamation, in the margin of the petition itself. Counsel for the petitioner has brought on record the complete order-sheet of the case as Annexure-4. The proclamation order under Section 82 Cr. P.C. has been passed by the Chief Judicial Magistrate do not indicate that the court had any reason to believe that the person against whom such prayer has been made are either absconding or concealing themselves even after issuance of warrant of arrest. Section 82(1) 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 specified place and at a specified time not less than thirty days from the date of publishing such proclamation." 19. The expression "Reason to believe" occurring in this section suggests that the Magistrate must be substantively satisfied that the person has absconded or has concealed themselves on the materials before him. Under Section 82 Cr.P.C. the Magistrate issuing proclamation must record his satisfaction that the accused has absconded or concealed himself, the Magistrate can grant permission for proclamation only on being fully satisfied and it should never been allowed in a routine manner. The order which has been passed by the Magistrate neither shows his satisfaction nor indicates that he had any reason to believe for passing such order. The order passed by the Magistrate is illegal also because on an unaffidavited petition filed by the I.O. such order has been passed. 20. The order which has been passed by the Magistrate neither shows his satisfaction nor indicates that he had any reason to believe for passing such order. The order passed by the Magistrate is illegal also because on an unaffidavited petition filed by the I.O. such order has been passed. 20. In the counter affidavit which has been filed by the State, it has been mentioned that the court below after being satisfied that the affidavit filed by the Investigating Officer of the aforesaid case has been pleased to issue the attachment order. This statement has been made in paragraph 22 of the counter affidavit which is nothing but misleading. The affidavit filed by the Investigating Officer has been annexed as Annexure-A to the counter affidavit. The affidavit has been sworn by the Investigating Officer on 9.8.2005. The order was passed by the C.J.M. On 4.8.2005. The affidavit was filed by the Investigating Officer subsequently when one Tarkeshwar Prasad son of Gayaddin Prasad (brother of Krishna Murari Yadav) filed an objection petition for recalling the order of proclamation dated 4.8.2005 stating that the order has been passed in violation of Sections 82 and 83 Cr.RC. A composite order has been passed under Sections 82 and 83 Cr.RC. when it is mandatory that only after 30 days of the proclamation order under Section 82 Cr.RC. an order of attachment can be passed under section 83 Cr.RC. It has also been stated that the order has been passed in violation of Rule 118(b) of the Police Manual. The details of the property which are going to be attached that have not been mentioned in the petition filed by the Investigating Officer, which is mandatory as provided under the Bihar Police Manual considering the fact that he has separated from his brother, his apprehension is that property allotted in his share may also be attached, on the basis of the order passed on 4.8.2005. It was also mentioned by the applicant that the unaffidavited petition for attachment has been filed by the Investigating Officer which is also in violation of Section 82 Cr.RC. This application was filed by Tarkeshwar Prasad Yadav on 9.8.2005 only thereafter affidavit was filed by the Investigating Officer on the same day. It was also mentioned by the applicant that the unaffidavited petition for attachment has been filed by the Investigating Officer which is also in violation of Section 82 Cr.RC. This application was filed by Tarkeshwar Prasad Yadav on 9.8.2005 only thereafter affidavit was filed by the Investigating Officer on the same day. The affidavit which has been filed on 9.8.2005 in relation to a petition which was filed on 3.8.2005 and on which order has already been passed on 4.8.2005 has got no relevance. Such an affidavit cannot come for rescue of an order, which has been passed, in violation of mandatory provisions under Sections 82, 83 Cr.P.C. 21. Considering the submissions made by the parties and the material which is on the record I am of this view that the C.J.M., Patna has committed jurisdictional error while passing the order dated 28.7.2005 under Section 73 Cr.P.C. in Kotwali RS. Case No. 292 of 2005. He has further committed the same error by passing an order dated 4.8.2005, for the reasons aforementioned, both the impugned orders are hereby quashed and this application is accordingly allowed.