IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.29095 of 2009 1. RAM PUNIT RAI, SON OF LATE KAILU RAI 2. SAROJINI KUMARI, WIFE OF RAM PUNIT RAI 3. RINA KUMARI, DAUGHTER OF RAM PUNIT RAI ALL RESIDENT OF VILLAGE RAGHUNANDANPUR, P.S. BHAGWANPUR, DISTRICT BEGUSARAI.----- PETITIONERS Versus THE STATE OF BIHAR ----- OPPOSITE PARTY ----------- 2 16.9.2009 The petitioners have challenged the orders dated 13.7.2009 and 24.7.2009 passed by the Chief Judicial Magistrate, Begusarai in Bhagwanpur P.S. Case No. 90 of 2009 by which notices have been issued under Sections 82 and 83 of the Code of Criminal Procedure against the petitioners. The facts of the case are that the petitioners are accused in a case under Section 498(A)/34 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act. Complaint was instituted on 29.5.2009. The petitioners had filed anticipatory bail application on 10.7.2009 before the Sessions Judge, Begusarai. On 13.7.2009 notices were issued to the informant. The matter was again listed on 27.7.2009 and on that day the Sessions Judge called for the case diary and the case was listed on 13.8.2009. On 13.8.2009 the diary was not received and thereafter the case was posted on 22.8.2009 on which date the diary was received in the Court and the informant also appeared. Petitioner Reena Kumari was allowed anticipatory bail, whereas the prayer for anticipatory bail of other petitioners was rejected. In the mean time, the Officer Incharge filed an application under Section 82 of the Code of Criminal Procedure 2 declaring the petitioner as an absconder. Ten days thereafter an application was filed under Section 83 of the Code of Criminal Procedure for attachment of the property of the petitioner. On 24.7.2009 the impugned order was passed allowing the application under Section 83 of the Code of Criminal Procedure. It may be noted that it was during the pendency of the bail application wherein the petitioners were pursuing the legal remedy and that the District & Sessions Judge, Begusarai was in seisin of the matter and issued notice to the informant to appear in the case for the purpose of re- conciliation/conciliation proceedings, the order under Sections 82/83 Cr.P.C. was issued. This Court in the case of Usha Mishra Vs. The State of Bihar reported in 2006(3)BCCR 253 has held that in a case where the petitioners are pursuing the remedies and where there is no apprehension, held that part warrant of arrest under Section 83 Cr.P.C. cannot be issued solely for production of an accused and such applications filed by the Investigating Officer under Sections 82/83 would in fact be illegal exercise of jurisdiction. It is apparent that the anticipatory bail application was pending before the District & Sessions Judge at the time when such an application was filed and the case diary was called for on 27.7.2009 which was to the knowledge of the Investigating Officer. In fact case diary was not produced on 13.8.2009, the date fixed for hearing of the bail application and it could only be received after more than a month in the Court of the District & Sessions Judge. The action of the 3 Investigating Officer was therefore, clearly malicious. I therefore, find that the order dated 24.7.2009by the Court below for attachment of the property of the petitioner is wholly without jurisdiction and as such the order dated 24.7.2009 is quashed. I may make it clear that this order is qualified by the fact that it would not mean that in all cases where bail application are pending, warrant and processes cannot be issued against accused persons and this order is a blanket order protecting the accused from the procedure given under Sections 82 or 83. The Officer Incharge may take steps under Sections 82 and 83 of the Cr.P.C when the accusd is not surrendering or is avoiding the process of Court and the law. It is only in context with the facts of this case that the Court finds that the order dated 24.7.2009 was unwarranted. This application is thus allowed. Sanjay (Sheema Ali Khan, J.)