IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.917 of 2008 SHURTILA KUMARI Versus STATE OF BIHAR & ORS ----------- 4 29.10.2010 The petitioner prays for setting aside the order dated 8.8.2008 passed by the Subdivisional Judicial Magistrate, Pupri at Sitamarhi in Nanpur P.S. Case No.94 of 2006 under sections 384/34 of the Penal Code, whereby her property has been attached merely because his son is an accused in the aforesaid case. The petitioner submits that only her son Alok Kumar Sharma is an accused in the instant case and she does not figure as an accused at all. However, on the requisition of police, the learned Magistrate attached her property under section 83 Cr.P.C. by order dated 8.8.2008. The petitioner further submits that she is in government service and the property in question is her own property having acquired from her own income. The petitioner filed an objection to the attachment under section 84 Cr.P.C. As per section 84(1) Cr.P.C. any person who is not an accused can make an objection within six months from the date of attachment of his property. The petitioner is aggrieved by the order dated 26.8.2008 wherbey the S.D.J.M., Pupri held that his objection application is not maintainable as investigation was still continuing. Counsel for the State files a counter affidavit wherein it has been stated that one Laxmeshwar Sharma, husband of the petitioner, has filed a false case of abduction of his son Alok Kumar Sharma, being Dumra P.S. Case No.80 of 2008 but the police in course of 2 investigation has found the case to be false. It has been further stated that the son of the petitioner has criminal history. It appears that the learned Magistrate has held the objection petition filed by the petitioner under section 84 Cr.P.C. to be premature as investigation is still going on. In my view the reasons assigned by the learned Magistrate for not deciding the objection petition and holding it to be pre-mature is not sustainable in law. Whenever an objection is filed under section 84 Cr.P.C. protesting attachment on the ground that the person concerned is not an accused and the property belongs to him/her and not to the accused, the learned Magistrate should first see whether prima facie materials has come against the person concerned in the investigation till then. In case no prima facie materials appears against the person concerned making protest, then the Magistrate concerned would make an enquiry whether the property in question belongs to the person making objection or to the accused person. In case the property does not belong to the accused, but belongs to person making objection under section 84 Cr.P.C., the same shall be released forthwith from attachment and restore it to the persons concerned. In the instant case, the learned Magistrate has not decided the issue, whether petitioner herself is an accused. He has held the petition under section 84(1) Cr.P.C. not maintainable, as investigation is pending. The view taken by learned Magistrate is erroneous. He should have decided on the existing material available on the date of filing requisition, whether any material has come against the petitioner. 3 KHAN If the petitioner does not figure as an accused till then, her property is to be released from attachment forthwith, if after enquiry same is found to belong to her and not to her son, who is an accused. The learned Magistrate overlooked the aforesaid intent of section 84(1) Cr.P.C. As the Magistrate has not followed aforesaid principle of law, the impugned order dated 26.8.2008 is set aside and the matter is remanded to the learned Magistrate to dispose of the objection petition afresh in accordance with law. With the aforesaid observations and directions, this writ petition stands disposed of. (S.P.Singh,J)