Criminal Writ No.417 of 2001 Against the order dated 17.3.2001 passed by Special Judge, Vigilance, (South Bihar) in connection with Vigilance P.S. Case No.37(4) 78/ leading to Spl. Case No. 158/83. ------------- 1. Dhananjay Kumar Pandey 2. Dr. Bijay Kumar Pandey 3. Dr. Ajay Kumar Pandy 4. Sanjay Kumar Pandey 5. Binay Kumar Pandey 6. Mritunjay Kumar Pandey, All sons of Sri Haridwar Pandey resident of Laxmi Bhawan, South Patliputra Colony, At + P.O.- Patliputra, Patna-800013 . ... .... Petitioner/s Versus State Of Bihar Through Vigilance Commissioner, 12, Baily Road, Patna. .... .... Respondent/s Appearance : For the Petitioner/s : Mr. Binay Kumar Pandey, Adv. For the Respondent/s : Mr.B.P. Pandey, Spl.P.P.(Vigilance) ================================================== P R E S E N T HON’RABLE MR. JUSTICE ADITYA KUMAR TRIVEDI Aditya KumarTrivedi, J. Petitioners have prayed for quashing of order dated 17.03.2001 passed by Special Judge, Vigilance, (South Bihar) in connection with Vigilance P.S. Case No.37(4) 78/ leading to Spl. Case No. 158/83 whereby and whereunder the prayer of the petitioners have been refused so far release of articles was concerned. 2. The factual matrix of the case happens to be the father of the petitioners namely, Haridwar Panday stood as an accused in Vilgilance 2 Case No. 37(4)78 on the basis of which Special Case No. 158/83 arose wherein so many writs were filed on behalf of father of the petitioners on different score and lastly vide order dated 12.5.1998 the Hon’ble Apex Court has directed to conclude the trial on or before 31.12.1998 and in the aforesaid background speedy trial was being conducted. On account of illness, as pleaded is the accused, Haridwar Panday became physically absent and was represented before the court under Section 317 of the Cr.P.C. and continuing with the aforesaid status, the prosecution evidence was closed on 29.8.1998 and the case automatically came at the stage of recording of statement as provided under Section 313 of the Cr.P.C. As Haridwar Panday failed to give his physical presence for getting his statement recorded under Section 313 of the Cr.P.C, therefore his representation was rejected followed with cancellation of bail bond vide order dated 31.8.1998. Subsequently thereof, as the warrant of arrest non- bailable could not be executed therefore, proclamation under Section 82 of the Cr.P.C. was issued and then after covering the stipulated period under the garb of service report, the attachment as prescribed under Section 83 of the Cr.P.C. was issued in pursuance of which there has been attachment of properties for release of which, the instant litigation appears to be in its third round. 3. Without adverting to the submissions raised on behalf of the petitioners, as well as learned counsel for the Vigilance, I would like to 3 refer the order of the Apex Court passed in Cr. Appeal No. 169/2000 arising out of S.L.P. (Cri) 3832/1999 and in my view, the aforesaid order is capable to remove the mist whatever is appearing over the issue and for that I would like to incorporate the relevant passage which goes like this:- “ From several proceedings pending in this Court we have also been informed by the accused Haridwar Panday that he is ill and is getting treatment in AIIMS. In this view of the matter the Magistrate was not justified in rejecting the application for release of the property on the sole ground that accused Haridwar Panday is absconding. The High Court also failed to exercise its jurisdiction vested in law in not correcting the said error and dismissing the writ petition filed. In the aforesaid premises we quash the order of the High Court dated 10.05.1999 as well as that of the Magistrate dated 17.02.1999 and We direct the Magistrate concerned to consider the application filed by the appellants for release of property on merits”. 4. When the status of accused Haridwar Panday as posed by learned lower court to be “absconder” has been derecognized by the Hon’ble Apex Court in the background of the fact whatever been enumerated in the order itself, then in that situation, the application of Section 82 or 83 does not arise. In likewise manner, the attachment made in pursuance thereto happens to be contrary to the direction of the Hon’ble 4 Apex Court. Therefore, the second round of litigation as well as the third one on having the prayer rejected by the learned lower court vide order dated 17.3.2001 cannot be held to be legally recognizable as, on account of the above referred order passed by the Hon’ble Apex Court, no other scope, was left open to the learned lower court whereunder prayer for release has been rejected. 5. Consequent thereupon, the order impugned is set aside. Petition is allowed. 6. Learned lower court is directed to release the articles in accordance with the seizure list. Patna High Court The 24th Of November 2011 Md. Perwez Alam/AFR ( Aditya Kumar Trivedi, J.)