IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.449 of 2009 DR. VIJAYA LAKSHMI SINGH Versus STATE OF BIHAR & ORS. ----------- 3. 16.02.2010 Heard learned senior counsel for the petitioner and learned counsel for the State. The approach of the learned Railway Judicial Magistrate, Arrah in his order dated 28.05.2009 appears to be strange. The order which he passed on that date, was on the direction of this Court passed in its order dated 06.04.2009 in Cr.W.J.C.No.352 of 2008. This Court, in its said order, noticed that, in view of fact that the accused was absconding, police had submitted an application for proclamation under Section 82 of the Code of Criminal Procedure, which was granted by the learned Magistrate by order dated 20.03.2008. The same was pasted on the residential house of petitioner at Anandpuri Road Patna on 27.03.2008. The moment petitioner came to know about the order of proclamation, she filed objection petition before the learned Railway Magistrate, Arrah on 27.03.2008 itself. The said objection was fixed for hearing by the learned Railway Magistrate on 8.5.2008. In the - 2 - objection, petitioner had claimed that the property was her self-acquired property and the absconding accused, who was a major, had nothing to do with the same and he was a practicing Advocate of the Supreme Court and had independent living. Although the Magistrate had fixed the case for hearing on the objection petition on 8.5.2008, police filed a petition on 11.4.2008 for issuance of order of attachment under Section 83 of the Cr.P.C. This Court, in the said order, also noticed that without waiting for hearing the matter on the date fixed, learned Railway Magistrate had passed order of attachment on 28.04.2008 itself i.e. almost ten days prior to the date fixed in the case by him for hearing on the objection petition of the petitioner. This Court, while passing the said order dated 6.4.2009, considered the stand of the informant that the objection petition of the petitioner was premature as any objection under Section 84 of the Cr. P.C. could be filed only after attachment under Section 83 of the Cr.P.C. was made. Thereafter, this Court noticed the provisions of Sections 83 and 84 of the Cr.P.C. - 3 - and has observed the conduct of the learned Magistrate in the following manner:- “It is not in dispute that though the Magistrate has fixed 8.5.2008 as a date for hearing on the objection petition, still he issued process under section 83 Cr.P.C. on 28.4.2008. Learned Magistrate ought not have passed an order for issuance of process under section 83 Cr.P.C. on 24.8.2008, when he himself fixed 8.5.2008 as a date of hearing of the objection.” (emphasis supplied) The above observation of this Court in its earlier order clearly shows that the conduct of the Magistrate was not proper in issuing the order of attachment under Section 83 of the Cr.P.C. on 28.04.2008 itself when he had fixed the case for hearing on the objection petition on 8.5.2008. The submission of the learned counsel for the informant did not find favour with the Court that the objection of the petitioner was premature. In the circumstances, as the Railway Magistrate had not passed final order on the objection petition of the petitioner till then, this Court, while disposing of the writ application by the said order dated 6.4.2009, directed the Railway - 4 - Magistrate to dispose of the same. It cannot be accepted in law that if in respect of an accused who is absconding, police submits an application for proclamation under Section 82 Cr.P.C. and pastes the same on the house of a stranger, bona fide or otherwise, and applies for attachment of the same, still the stranger has to wait for the attachment to be effected and wait for his property to be damaged and carried away to a police station for exercise of right to file petition under section 84 of the Cr.P.C. Section 84 is meant for the persons who have joint interest on some interest in the property, prima facie belonging to the absconding accused. If the property does not belong to the accused at all, then real owner of the property does not have to wait for the completion of the attachment process for filing objection under Section 84 of the Cr.P.C. Any application for attachment under Section 83 of the Cr.P.C. of a property not belonging to the absconding accused will apparently be a glaringly illegal and highhanded act of the police in dealing with the matter. Therefore, any objection, if it is filed immediately after - 5 - proclamation, on the ground that the property does not belong to the absconding accused in any manner, the concerned court, exercising judicial powers has to go into the question and satisfy itself prima facie that the police has filed application for proclamation and for attachment of a property which prima facie belongs to the absconding accused and not to a stranger. It is unfortunate to find that the learned Magistrate has again misdirected himself in his approach in passing the order dated 28.05.2009 in compliance of the orders of this Court by holding that the said objection petition is premature. When this Court had directed him to consider the said objection petition he was duty bound to comply with the orders of this Court in letter and spirit and consider the said objection petition on merits and pass appropriate orders in accordance with law. This, the learned Magistrate has failed to do, in spite of the specific orders of this Court. However, leaving it open for the petitioner, as prayed for on her behalf, to seek her remedy in accordance with law, for the - 6 - mental and physical harassment and damages caused to her in the process, this Court restrains itself from making any further observations in the case in view of the fact that the absconding accused has appeared before the learned Railway Magistrate in terms of the orders of this Court and he has been allowed bail by his order dated 22.01.2010 and he has also withdrawn the order of non-bailable warrant of arrest issued against him in view of the bail granted. From the impugned order it appears that, while rejecting the objection petition of the petitioner by order dated 28.5.2009, the learned Railway Magistrate has also directed the Officer Incharge to issue process under Section 83 Cr.P.C. against the accused. Petitioner filed this writ on 01.06.2009 and a Bench of this Court by order dated 17.6.2009 restrained the respondents from taking any further steps for attachment of the property in question. Now that by order dated 22.01.2010, the learned Railway Magistrate has granted bail to the absconding accused and has withdrawn the order of non-bailable warrant of arrest against - 7 - him, the order of proclamation dated 20.3.2008 and attachment orders dated 28.04.2008 and 28.05.2009 loses their force. Hence, the said orders are quashed in exercise of powers under Article 227 of the Constitution of India. This Court further directs that in case any movable property, which the police may have attached and seized from the house of the petitioner after the issue of proclamation order, must be returned to the petitioner and the learned Railway Magistrate shall immediately pass orders in this respect upon receipt/production of this order. With the aforesaid observations and directions, the writ application is disposed of. B.T (J. N. Singh, J.)