IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.621 of 2010 1.VIJAY KUMAR SINGH @ MUNNA THAKUR SON OF SHRI SHEOJI SINGH 2.SANTOSH KUMAR SINGH @ LALLU THAKUR, SON OF SHRI SHEOJI SINGH BOTH RESIDENT OF VILLAGE-NETHUA, P.S. MARHAURA, DISTRICT SARAN AT CHAPRA …….PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE DIRECTOR GENERAL OF POLICE, BIHAR, PATNA 3. THE INSPECTOR GENERAL OF POLICE, TIRHUT RANGE, MUZAFFARPUR 4. THE DEPUTY INSPECTOR GENERAL OF POLICE, SARAN RANGE, CHAPRA 5. THE SUPERINTENDENT OF POLICE, SARAN AT CHAPRA DISTRICT SARAN AT CHAPRA 6. THE DEPUTY SUPERINTENDENT OF POLICE, MARHAURA, DISTRICT SARAN AT CHAPRA. 7. THE STATION HEAD OFFICER, MARHAURA POLICE STATION, DISTRICT SARAN AT CHAPRA 8. SHARWAN KUMAR JAISWAL @ PAPPU JAISWAL, SON OF TERAS JAISWAL, RESIDENT OF VILLAGE- MIRZAPUR TALPURAINA, P.S. MARHAURA, DISTRICT SARAN AT CHAPRA. RESPONDENTS. For the Petitioners : Mr. S.B.K.Manglam, Advocate For the State : Mr.Shailendra Kumar Jha, AC to SC 9 For the informant : Mr.Bindhyachal Singh, Advocate O r d e r 8 19.8.2010 The petitioners seek quashing of the order dated 29.5.2010 passed by the Chief Judicial Magistrate, Saran at Chapra in Marhaura P.S. Case No.120 of 2005 registered for the offences under sections 302/34 of the Penal Code and section 27 of the Arms Act, whereby he has issued attachment order against the petitioners under section 83 of Code of Criminal Procedure. The informant Sharwan Kumar Jaiswal alleges that on 15.7.2005 at 10.00 A.M., while he along with his brother Manoj Kumar Jaiswal, since deceased, was purchasing mango in Mirzapur Bazar, 7-8 criminals on three motor cycles came and began to fire at them. The informant’s brother tried to hid himself in the Life 2 Medical Shop of Md.Aalim. The petitioner no.1 Vijay Kumar Singh @ Munna Thakur shot at his brother Manoj Kumar Jaiswal as a result of which he fell. Thereafter other accused including petitioner no.2 fired at him causing his instant death. It is alleged that the offence took place on account of liquor dispute. The petitioners submit that the police right from beginning has been acting in a partisan manner and in fact are trying to implicate the innocent people at the influence of a local politician. The F.I.R. was lodged on 15.7.2005 and just the next day, on 16.7.2005, the police filed a requisition for issuance of non- bailable warrant of arrest against them and other named accused in the F.I.R. The learned Chief Judicial Magistrate, Saran at Chapra accepted the requisition and issued non-bailable warrant of arrest against them. On 19.7.2005, the police prayed for issuance of proclamation against the accused persons named in the F.I.R. under section 82 of Cr.P.C. and only two days thereafter i.e. on 22.7.2005, the police filed another requisition for attachment of the property under section 83 Cr.P.C, contained in Annexure-2, which were too accepted and allowed by the Magistrate. The petitioners submits that the requisitions for issuance of non-bailable warrant of arrest just after one day of the occurrence and those seeking proclamation and attachment within five days thereof is contrary to the provisions of sections 73, 82 and 83 Cr.P.C. The learned Magistrate without appreciating the scope and ambit of these provisions issued both non-bailable warrant on 16.7.2005, proclamation on 19th July, 2005 and attachment order on 3 22.7.2005. Before I deal with the issue, it may be relevant to notice the facts in some details. The wife of petitioner no.1 Sobha Devi moved this court in Cr.W.J.C.No.509 of 2005 for issuance of a direction to the respondent authorities not to execute the process taken up against her husband. She also sought for an impartial investigation as her husband and others were being falsely implicated in the case. This court noticing that non-bailable warrant of arrest was issued the very next day of the institution of the case, quashed the same vide order dated 31.1.2007, as well as consequential order issuing proclamation under section 82 Cr.P.C. and attachment under section 83 Cr.P.C. which too were issued within a week thereof. Further more, as regard the grievance that the investigation is not being carried out properly, this court observed that the petitioner may make a representation to the I.G. Police, Tirhut Range, Muzaffarpur, who would consider the matter in a manner which my inspire public confidence. A copy of order dated 31.1.2007 passed in Cr.W.J.C.No.509/05 is appended as Annexure-5 to the writ applcaiton. The petitioners submit that as per direction of this court, the wife of petitioner no.1 filed a detailed representation before the I.G. Tirhut Range, Muzaffarpur who himself supervised the matter. He found that the witnesses have supported the prosecution case. However, he opined that the statement of Md. Aalim in whose medical shop the occurrence took place be recorded by the Superintendent of Police, Muzaffarpur along with the statement of 4 the woman of village Piyarpurwa, who too was injured in the occurrence. A copy of supervision of I.G. Tirhut Zone dated 6.9.2008 who was holding the rank of Addl. D.G.P. has been annexed as Annexure-9. Pursuant to the order of the I.G. Tirhut Range, Muzaffarpur, the Superintendent of Police directed the Investigating Officer, respondent no.7, to produce Md. Aalim as well as injured lady. The petitioners submit that in paragraph 489 of the case diary the police states that despite attempt being made to locate the injured lady, she is not being traced. The petitioners drew my attention to paragraph 508 and 509 of the case diary, which has been annexed as Annexure-12 which at the most could have been quoted in the petition, instead of being annexed in casual manner to say the least. Paragraph 508 of the case diary shows that Md. Aalim was produced before the Superintendent of Police for recording of his statement. It appears from paragraph 509 of the case diary that the statement of Md.Aalim was recorded in presence of Superintendent of Police, the petitioner asserts that the statement of Md.Aalim is not on the record. He submits that the police has deliberately not brought on record the statement of Md.Aalim. On this basis, the petitioners submit that the investigation has not proceeded impartially and the investigating agency is trying to hide some vital information from being brought on record. The petitioners moved this court for grant of anticipatory bail in Cr.Misc. No.35585 of 2009 and a bench of this court by 5 order dated 27.11.2009 sought for a report from the I.G. Police, Tirhut Range, Muzaffarpur whether any enquiry is pending before him or not within a period of three weeks. This court further directed that no coercive steps would be taken against these petitioners pending final hearing of the bail application. The interim order was extended for further three weeks by order dated 22.12.2009. A counter affidavit has been filed on behalf of the State wherein in paragraph 6 it has been stated that the case was reviewed by the I.G. Muzaffarpur Zone, Muzaffarpur vide his enquiry report bearing letter no.1351/C.R., dated 06.09.2008 and found the case true against all the four named F.I.R. accused persons, as would be evident from Annexure-A. Further, in paragraph 7 it has been stated that steps were taken to arrest the F.I.R. named accused persons but they are evading arrest. Furthermore the petitioners and other accused are in habit of filing writ petitions one after other before this court with a motive to delay the proceeding. Eventually, the Anticipatory Bail Application, bearing Cr.Misc.No.35585 of 2009 filed by the petitioners was also disposed of by order dated 2.4.2010 by a bench of this Court with a direction that the petitioners must surrender in the court below within a period of four weeks from that date. The concluding portion of order of this court contained in Annexure-C of counter affidavit of State is quoted herein below: “In the aforesaid facts and circumstances, it is apparent that petitioners are accused in a murder case punishable under section 302 of the Indian Penal Code and there is direct allegation of firing against the petitioners causing 6 instantaneous death of the deceased. Petitioners have been absconding for almost five years and have succeeded in delaying the progress of the trial in the court below. In the aforesaid background this court is of the considered opinion that petitioner do not deserve the privilege of anticipatory bail in the present case. The application for anticipatory bail is accordingly rejected. The petitioners must surrender in the court below within a period of four weeks from today and seek regular bail, if so advised. If such a petition is filed in the court below for grant of bail, then, that may be considered on its own merit without being prejudiced by this order. It is made clear that the above observations made in the present order shall not be any way prejudice the case of either party in future proceedings/trial. Application stands dismissed”. Learned State counsel submits that the order of attachment dated 29.5.2010 has been passed, as the petitioners who have been named as assailants are evading arrest in a murder case for five years. It has been stated in paragraph 29 of the counter affidavit that in spite of best efforts the injured lady of village Pyarpurwa was not located. The aforesaid fact has also been mentioned in paragraphs 474, 475, 478, 486, 498, 505, 510 and 528 of the case diary. In paragraph 8 of the counter affidavit it has been stated that the statement of Md.Aalim was already recorded in paragraph 15 of the case diary. However, in compliance of letter of I.G. Muzaffarpur Zone, Muzaffarpur bearing no.1351/Cr.S. dated 6.9.2008, notice was issued to Md.Aalim, as directed by the Superintendent of 7 Police, Saran for recording his statement but he did not turn up. The informant and other witnesses have supported the prosecution case and it would appear from the report of the I.G. Muzaffarpur Zone, that petitioner no.1 is also involved in four other cases, the reference of which has been mentioned therein. Thus, he submits that the petitioners are evading arrest though they are named as main assailants in the F.I.R. The police has submitted charge sheet no.50/10 dated 21.3.2010 under sections 302, 307/34 of the Penal Code and section 27 of the Arms Act. Counsel for the informant placed two orders passed by a bench of this court. The first order is dated 7.7.2010, passed in Cr.Misc.No.21218 of 2010 by which their prayer for anticipatory bail was again rejected by a bench of this court with a direction that they must surrender in the court below without any further delay in the instant case. The second order on which he has placed reliance is order dated 16.1.2008 passed by a bench of this court in Cr.W.J.C.No.566 of 2007 filed by informant Sharwan Kumar Jaiswal, whereby this court disposed of the writ application in the following terms: “Having heard counsel for the parties, I dispose of this writ application with direction to the State respondents, including the Superintendent of Police, Saran at Chapra to proceed against the F.I.R. named accused in accordance with law as was directed under orders dated 31.1.2007, passed in Cr.W.J.C. No.509 of 2005 and not only apprehend them in connection with Marhowrah P.S. Case 8 No.120 of 2005 but also conclude the investigation at the earliest”. Two main contentions have been advanced on behalf of the petitioners; firstly the impugned order dated 29.5.2010 is bad in law as no attachment could be ordered without there being an earlier order under section 82 Cr.P.C. Secondly, the investigation has not been fair, as in paragraph 509 of the case diary, it has been stated that the statement of Md.Aalim has been recorded in presence of the Superintendent of Police, Saran but the same is not on the record and the injured lady has not been traced out as yet. I would take up these contentions one by one. So far as provisions of law that no order of attachment under section 83 Cr.P.C. can be issued before issuance of proclamation under section 82 Cr.P.C., I am in full agreement with the learned counsel for the petitioners. Now it is to be seen from the materials on record whether an order of proclamation under section 82 Cr.P.C. has been issued earlier or not. Section 83 Cr.P.C. relates to attachment of property of persons absconding. It states that the court issuing a 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, moveable or immovable, or both, belonging to the proclaimed offender. It further states 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 is about to dispose of the whole or any part of his property or about 9 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. Thus, the law either does not bar issuing the order of proclamation and attachment simultaneously, if the conditions mentioned in section 83 are satisfied. Here, the contention of the petitioners is that the order of attachment under section 83 Cr.P.C. has been issued without issuing proclamation under section 82 Cr.P.C. As reiterated earlier, now the relevant issue is whether the order of attachment has been issued without taking recourse to section 82 Cr.P.C. The petitioner has annexed a copy of the report contained in memo no.7587, dated 24.12.2009 of the Superintendent of Police, Saran, Chapra (Annexure-16), from perusal of which it would appear that on 4.4.2008 issuance of proclamation was received from the office of the Chief Judicial Magistrate, Chapra under section 82 Cr.P.C. The relevant portion of the aforesaid report is reproduce herein below: “8………DINAK 4.4.08 KO MUKHYA NAYAYIK DANDADHIKARI CHAPRA KE NAYAYALAY SE SABHI NAMIT ABHIYUKTO KE BIRUDH DHARA 82 D.PR.SA. KE ANTRAGAT ISTEHAR PRAPT HUA HAI. JO KAND DAINIKI SA. 40 KE KANDIKA 301 PAR ANKIT HAI…….”. It would further appear from paragraph 7 of the aforesaid report that earlier non-bailable warrant of arrest has been issued. 10 Thereafter, the order of proclamation issued by the Chief Judicial Magistrate, Chapra against petitioners was received on 4.4.2008. In such circumstances, it is difficult to agree with the submission of petitioners that the order of attachment issued by the Chief Judicial Magistrate on 29.5.2010 was made without there being an earlier order under section 82 Cr.P.C. Further more, this court by order dated 2.4.2010 passed in Cr.Misc.No.35585 of 2009 rejected the prayer for anticipatory bail of the petitioners with a direction to surrender in the court below within a period of four weeks from the date of that order and seek regular bail. I have already noticed that this court by order dated 16.1.2008 passed in Cr.W.J.C.566 of 2007 had disposed of the writ petition with direction to the State respondents, including the Superintendent of Police, Saran at Chapra to proceed against the F.I.R. named accused in accordance with law, as was directed under orders dated 31.1.2007, passed in Cr.W.J.C. No.509 of 2005. This court further observed that not only the police would apprehend them in connection with Marhowrah P.S. Case No.120 of 2005, but also conclude the investigation at the earliest. In the backdrop of aforesaid facts, I do not find any illegality in the order of the learned Chief Judicial Magistrate issuing order of attachment dated 29.5.2010. Now I would take up the other plea raised by the petitioners regarding non-availability of the statement of Md.Aalim on the record. It has been stated in paragraph 508 of the case diary that 11 KHAN AFR Md. Aalim was produced for recording his statement. Paragraph 509 of the case diary shows that the statement of Md. Aalim was recorded in presence of Superintendent of Police, Saran. However, the petitioners assert that the statement of Md. Aalim is not on the record. In case, the statement of Md. Aalim is not on the record, as stated in paragraph 509 of the case diary, an adverse inference can be drawn against the prosecution side to that extent and persons responsible for alleged omissions can be brought to task. On this score alone the total investigation cannot be brushed aside. It is relevant to recapitulate that State in counter affidavit has stated that the Investigating Officer has already recorded statement of Md. Aalim in paragraph 15 of the case diary. At the same time this court cannot shut eyes to the fact that the brother of the deceased and other witnesses have named these petitioners as co-assailants and charge sheet has already been submitted. With the aforesaid observations, this writ petition stands dismissed. (Samarendra Pratap Singh,J)