Jharkhand High Court
Safayatullaha Khan And Ors. Etc. vs State Of Bihar (Now Jharkhand) And Ors. ... on 9 April, 2003
Equivalent citations: [2003(3)JCR813(JHR)]
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan, Lakshman Uraon
JUDGMENT Vishnudeo Narayan, J.
1. Both the writ petitions have been heard together and are being disposed of by this judgment.
2. The petitioners in both the writ petitions have prayed for a declaration that the processes issued under Sections 82 and 83 Cr PC is bad, illegal, arbitrary and without jurisdiction and also claimed compensation regarding the damages caused to their residential premises by the respondents in execution of the process aforesaid.
3. Original petitioner No. 1, Enayatul-lah Khan (since dead) in CrWJC No. 264/ 94 (R) (hereinafter referred as petitioner No. 1) claimed himself to be the absolute owner in possession of holding No. 144, holding No. 315, and holding No. 164 on plot Nos. 524, 628 and 534 respectively situate at Naya Basti and Gouri Shanker Road, P.S. Jugsalai, District East Singhbhum and holding No. 144 has been acquired by virtue of the sale deed dated 24.5.1961 executed by Basi Ban Bibi in favour of his wife Shirin Khatoon, who has died on 7.2.1982 and petitioner No. 1 has acquired the other two holdings by virtue of sale-deed dated 20.9.1971 and 28.12.1965 executed by Smt. Jaswant Kaur and Smt. Gitali Kahali respectively. Holding No. 144 is a three-story building worth Rs. fifteen lakhs. Petitioner No. 2, Md. Kalim claims himself to be the owner of a firm M/s Md. Din Sher Afzal Khan which he has acquired by purchase under and agreement dated 8.6.1989 executed by petitioner No. 1 before the Notary Public and petitioner No. 2 is running the said firm which is a fruit shop. Jugsalai P.S. Case No. 89/94 (GR Case No. 807/94) was registered against Md. Hidayatullah Khan and Md. Jumman Khan, the sons of petitioner No. 1 aforesaid 15.5.1994 under Sections 387/506/34 of the IPC on the basis of a written report of A.K. Srivastava, O/C Jugsalai P.S, and warrant of arrest was issued by respondent No. 3 against the accused persons aforesaid on 16.5.1994 as per the prayer of the I.O. for their arrest. On 18.5.1994 the I.O. filed an application before respondent No. 3 stating therein that the accused persons are evading arrest and they are trying to dispose of their property and looking for the purchasers for the said purpose and prayed for the issuance of the process under Sections 82 and 83 CrPC and respondent No. 3 issued under Section 82 and 83 CrPC on 18.5.1994. It is alleged that the application dated 18.5.1994 aforesaid of the I.O. does not stand supported by any affidavit nor it contains the compliance of the provision of Section 83, Cr PC and respondent No. 5 under the directions of respondent No, 2 in pursuance of the process under Sections 82 and 83, Cr PC issued by respondent No. 3 attached the entire movables from the fruit shop styled as M/s Mohammad Din Sher Afzal Khan belonging to petitioner No. 2 and without any delay got the fruits auctioned on 22.5.1994 for the meager amount of Rs. 15,760/- whereas the actual price of the fruit was more than Rs. 60,000/-. It is stated that the petitioner No. 2 has neither nexus with the accused persons aforesaid nor they have any right, title and interest in the said fruit shop and respondent No. 5 ignoring the protest made by petitioner No. 2 having the knowledge of the aforesaid fact had damaged the fruit shop and taken away the entire movable therefrom.
4. The case of petitioner No. 1 is that the triple storied residential house standing on plot No. 524 exclusively belongs to petitioner No. 1 and both the accused persons aforesaid have no right, title and interest therein and respondent No. 4 with the help of other police officials and their subordinates in spite of the protest of petitioner No. 1 demolished the said building in the execution of process under Sections 82 and 83, Cr PC issued against the accused persons whereas the provisions under Section 82 and 83, Cr PC does not at all provide demolition of the house in execution of the process. Petitioner No. 1 filed a petition before respondent No. 3 to restrain the police from damaging and attaching the house of petitioner No. 1 on 24.5.1994 and similar prayer vide Annexure-10/1 was also made by the petitioner No. 2 on that very day under Section 84(3) Cr PC before respondent No. 3. It is alleged that Section 82, CrPC provides proclamation for person absconding when the Court has reasons to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, the Court may by written proclamation direct him to appear at a specified place and time not less than 30 days from the date of publishing such proclamation and in the instant case the prayer for warrant of arrest was made on 16.5.1994 but in fact no warrant of arrest was issued and only on 18.5.1994 on the basis of the alleged prayer, respondent No. 3 without complying with the mandatory provision of Section 82(1) Cr PC issued the process, simultaneously under Sections 82 and 83 Cr PC without stating the grounds of his satisfaction in issuing the said process and the entire order issuing process under Sections 82 and 83 Cr PC is vitiated in law and the action on the part of respondent No. 3 and follow up action by respondents Nos. 4 and 5 at the instance of respondent No. 2 in attaching the movables belonging to petitioner No. 2 and in demolishing the portion of the residential house of petitioner No. 1 in execution of process under Sections 82 and 83 Cr PC by virtue of the order dated 18.5.1994 of respondent No. 3 in GR No. 807 of 1994 (Jugsalai P.S. Case No. 89 of 1994 against Md. Hidayatullah Khan and Jumman Khan) are bad, illegal, arbitrary and without jurisdiction and respondent Nos. 2, 4 and 5 were not vested with the power to attach the property belonging to petitioner No. 1 and the residential house belonging to petitioner No. 1 cannot be demolished in the garb of execution of the process under Sections 82 and 83, Cr PC in the absence of any service report of warrant purportedly issued against the accused persons by respondent No. 3 in violation of the mandatory provisions Cr PC. The case law reported in 1981 BLJR 461 and 1974 BLJR 281 have been referred to in support of their contention.
5. In the supplementary affidavit filed on 5.10.1994 it has been stated that respondent Nos. 2, 4 and 5 have damaged and demolished three residential houses of petitioner No. 1 i.e., holding No. 144 holding No. 315 and holding No. 164 and also the fruit shop of petitioner No. 2 and have also attached movables kept therein and the petitioner got the evaluation done regarding the extent and nature of damage caused by the aforesaid respondents and their subordinates while demolishing and attaching the movables and the immovables of each of the residential houses separately by Sri Arun Kumar Karfa, Chartered Engineer, and Surveyor which is Rs. 2,89,556.00, Rs. 7,02,981.00 and Rs. 18,326.00 in respect of holding Nos. 144, 315 and 164 respectively and besides that they had taken away furniture, fixtures, ornaments, electrical goods and utensils and other articles from the houses aforesaid and their tentative cost has been assessed which comes to Rs. 17,52.220.00. It is also alleged that cost of stocks and articles kept in the fruit shop has been assessed to the tune of Rs. 65,200.00. It is also alleged that under no circumstances the respondents are authorised to demolish the residential houses belonging to petitioner No. 1 and fruit shop of petitioner No. 2, who are neither accused nor has any connection with the said Jug-salai P.S. Case No. 89 of 1994 and accused Md. Hidyatullah Khan and Jumman Khan have no right, title and interest and any connection whatsoever with the aforesaid residential houses and fruit shop.
6. In the counter-affidavit filed on behalf of respondent Nos. 1, 2, 4 and 5 it has been stated that the writ application is misconceived, mala fide and not maintainable and has been filed to hamper the steps taken by the police machinery against accused Md. Hidyatullah Khan, son of petitioner No. 1, who is involved in as many as 22 cases under the various provisions of the IPC and the Arms Act and in some of the cases charge-sheet have been submitted and respondent Nos. 2 and 4 had only proceeded against accused Md. Hidyatullah Khan, son of petitioner No. 1 as he was absconding and processes were issued for his arrest by the Court of law and they have obtained an order of attachment of the movable properties belonging to the accused aforesaid. Respondent Nos. 2 and 4 had no hand in demolition of residential houses belonging to petitioner No. 1 and the raid at the residence of the accused person does not necessary mean that the accused must be owner of the said property and the police machinery never disputed the title over the actual owner of the said properties when raids and attachments were made to apprehend the accused as they were veteran criminals of the area. It is also alleged that the fruit shop belongs to the accused persons and respondent No. 5 has attached the said fruit shop in pursuance of the order passed by the competent Court and put the fruits on auction sale in view of the fact that the fruits were perishable in nature and subject to natural decay by lapse of time and it was auction sold to the highest bidder in accordance with the provision of law and the said fruit shop which was attached and the fruits of the said shop sold were not the properties of petitioner No. 2. The residential houses of plot No. 628 belongs to petitioner No. 1 and the accused persons are the sons of petitioner No. 1 and they are residing together in the same house and they are not separate and there is no partition in the house properties and as such no wrong was committed in executing the order of attachment of the properties of the accused persons when the father of the accused also happened to be the owner of the said property. It is also alleged that it is also incorrect to say that the house of petitioner No. 1 was demolished at the hands of the police authorities. The case of the respondents is specific that only the order of attachment was executed and movable and belonging of the accused persons were only seized and any damage caused to the building has been caused by the accused persons themselves only to defame and demoralize the police officers and the respondents have not demolished the house of petitioner and the order of attachment was legal and valid. It is also alleged that simultaneous process may be issued under Sections 82 and 83 and Cr PC in the circumstances of utmost urgency and there is no illegality in respect thereof and respondent No. 2 has only instructed the police machinery under his command to apprehend the accused persons within the four corners of law and no arbitrariness has been shown against the accused persons.
7. The case of petitioner in Cr WJC No. 260 of 1994(R) in brief is that her husband Syed Naushad had acquired the house standing on old Khata No. 160, old plot No. 4443 corresponding to new Khata No. 574 and new plot No. 3244 situate at Zakir Nagar. P.S. Mango from Md. Ismail, Md. Shafruddin, Md. Salim and Jahida Khatoon and it stands mutated in favour of her husband and on 17.3.1993 her husband had executed a registered deed of gift of the said house in favour of this petitioner along with her children, who from that day onwards had become the absolute owner of the said house. It is alleged that Syed Naushad aforesaid was implicated in Mango P.S. Case No. 101 of 1994 dated 9.5.1994 (GR No. 786 of 1994) under Sections 384, 385, 386, IPC and respondent No. 3 O/C of Mango Police Station made an application before respondent No. 4 praying therein to issue warrant of arrest and order of attachment of the property under Sections 82 and 83, Cr PC and respondent No. 3 again made a prayer vide application dated 14.5.1994 before respondent No. 4 for issuance of process of attachment under Sections 82 and 83, CrPC which was issued on that very day by respondent No. 4 without making any enquiry as to who is the rightful owner of the premises to be attached. The further case of the writ petitioner is that on the strength of that order the police unlawfully demolished and damaged the house of this petitioner and seized numerous articles of the petitioner. It is alleged that on 15.5.1994 without any notice whatsoever the police entered into the house of the petitioner and took away all the valuable articles from the house of petitioner and proceeded to demolish the house of the petitioner along with all the shops which stood in the said premises which caused loss to the petitioner amounting to more than Rs. Five lakhs. It is alleged that the I.O. in the said case had cunningly suppressed the material facts and had succeeded in obtaining a process under Section 83, Cr PC from the Court of respondent No. 4 for attachment of property which rightfully belongs to the petitioner. Lastly it has been alleged that simultaneous issue of the process under Sections 82 and 83, Cr PC is illegal on the basis of the facts aforesaid and it was therefore prayed to direct respondent Nos. 2 and 3 to return to this petitioner all the household goods and valuables seized during the said demolition and to compensate the petitioner for all the losses undergone by her amounting to more than Rs. five lakhs.
8. In the supplementary affidavit dated 19.9.1994 of the petitioner it has been stated that the petitioner got the extend and nature of damages caused by the respondents particularly respondent 2 and 3 and their sub-ordinates by demolishing and attaching the movable and immovable of her residential house evaluated by Sri Arun Kumar Karfa, Chartered Engineer, Surveyor, Loss Assessor, Valuer and the loss and damages assessed by him is Rs. 1,02,340.00 It is also alleged that on 15.5.1994 the police officer and his sub-or-dinate took away the ornaments, furniture, utensils and other articles of this petitioner from her house in-the garb of effecting the process under Sections 82 and 83 Cr PC without giving a copy of seizure list in spite of her protest and the value of the ornaments is Rs. 2,18,004.00 and value of other articles is 2,25,640.00 as per her assessment and under no circumstance respondent Nos. 2 and 3 are authorised to demolish the residential house of the petitioner, who is neither an accused in the said case nor has any connection whatsoever with the said case. It is also alleged that Mango P.S. Case No. 101 of 1994 registered against Md. Naushad, the husband of the petitioner, on 9.5.1994, the FIR of which was sent to the Court on the following day, and the order of issuance of warrant of arrest against him was passed on the same day and without executing the same proclamation processes under Sections 82 and 83, Cr PC were issued by respondent No. 4.
9. The case of respondent Nos. 2 and 3 in the counter-affidavit it that this writ application is not maintainable either in law or in fact and is fit to be dismissed in limine and Md. Naushad, of this petitioner, is a notorious criminal, who figured as an accused in more than dozen of cases and this writ petition has been filed with a view to putting pressure on the authorities and to intimidating them so that they may refrain from taking any lawful action against the said accused. It has been categorically stated that the house of the petitioner was not all demolished by respondent Nos. 2 and 3 or by their sub-ordinate and there was also no suppression of the material facts regarding the issuance of order of attachment under Sections 82 and 83, Cr PC by respondent No. 4 and the order of issuance of process under Sections 82 and 83, Cr PC is quite legal and valid and there is no illegality in issuing proclamation and attachment of the property of the accused simultaneously if the occasion so arises under Section 83(1), Cr PC. It is also stated that the petitioner did not inform the police or the Court verbally or in writing before the attachment that the premises did not belong to accused Md. Naushad and the said premises is the exclusive property of the petitioner and she has also not shown any paper to that effect. Further case of the respondents aforesaid is that the police has not at all demolished or damaged the said house and only attachment was made in presence of the witnesses and seizure list of attached property was prepared on which the witnesses have put their signature and it is false to say that respondents No. 2 and 3 have demolished the house of the petitioner causing loss amounting to Rs. Five lakhs. It is also alleged that in the process of recovering and attaching doors or grills fixed with the wall some damage might have been done without which the doors and grills could not have been removed and it is the petitioner and the accused or his relatives themselves might have damaged the said house after the attachment to defame and demoralize the police and the property attached belong to accused Md. Naushad and not to the petitioner. It is also alleged that it is not a fact that the police destroyed the shops and belongings of the tenants. It is further alleged that the premises in question has been shown to have been gifted to the petitioner by accused Md. Naushad only with a view to avoid any further action and attachment in future by the police because he is a man of bad criminal history and antecedents and is sure to commit crime also in future and as such, he is taking legal shelter by gifting his properties and notwithstanding the aforesaid facts the house and properties belong to accused who resides with his family including the petitioner in the said premises.
10. Vide order dated 16.12.1994 this Court directed Shri Pratap Singh, Additional District Judge, Jamshedpur to hold an enquiry regarding the allegations made in both the writ applications and submit a report to this Court in view of the fact that the writ petitioners have raised a fundamental issue regarding violation of fundamental rights and human rights and alleged police atrocities and the facts having been disputed in the counter affidavit. In pursuance of the order of this Court he held enquiry regarding the allegations as contained in both the writ petitions aforesaid and he had formulated the following points for determination in CrWJC No. 264 of 1994 :--
(A) Whether the residential houses or structures, if any, covered by An-nexures 1, 2 and 3 to the writ application which are photo copies of three different registered Deeds of Sale, have been demolished or damaged by respondent Nos. 2, 4, or 5 or any of them or under their command in the supposed execution of an order passed by respondent No. 3 under Section 83, Cr PC against accused Md. Hidyatullah Khan Md. Jumman Khan in Jugsalai P.S. Case No. 89/94 dt. 15.5.1994 ?
(B) Whether in supposed execution of the said order passed by respondent No. 3, respondent Nos. 2, 4 and 5 or any of them attached and took away or caused to be attached or taken away from the said houses' movables described in the supplementary affidavit of the petitioners and, if so, whether the two accused aforesaid had no interest in the said movables ?
(C) Whether the demolition of an damage to the aforesaid immovable properties and removal of the aforesaid movables therefrom caused by respondent Nos. 2, 4 and 5 or any of them either by themselves or through their agents, resulted in any loss to petitioner No. 1 and, if so, to what extent ?
(D) Whether the fruits shop from which movables and fruits were attached in the supposed execution of an attachment order passed by a Court of law against accused Hidyatullah Khan in connection with some case, out of which the fruits were auction-sold, belonged exclusively to petitioner No. 2 and the said accused had no interest in the same ?
(E) Whether the attachment of the movables and auction sale of the fruits belonging to the said shop has put petitioner No. 2 to any loss and, if so, to what extent ?
The E.O. has come to the finding of the fact so far point Nos. D and E are concerned that the fruits shop belongs to the family of petitioner No. 1 including Md. Hidyatullah Khan and petitioner No. 2 is either a stranger or an employee in the shop and, as such, he has neither suffered any loss nor has any right to claim for any compensation and there is no document produced before him to come to the conclusion that there was fruits worth Rs. 60,000,00 in the said fruits shop and that deliberately with any mala fide intention the fruits worth Rs. 60,000.00 were sold for a meager amount of Rs. 15,760.00 only. As regards the points A, B and C aforesaid, the E.O. has reported that single storied house bearing holding No. 315 plot No. 628 is situated on the main Gouri Shankar Road whereas the triple-storied houses bearing holding No. 144 plot No. 524 is situated in a bye lane from the said road. So far holding situated on plot No. 534 is concerned, it has been stated that the said property is an open land situated southwards of the said triple-storied house intervened by one double storied house in a bye lane and about 50 yards away from the main Gouri Shankar Road without any trace of house or structure having ever been on it. Exts. B, B1 and B2 are the three attachment reports dated 19.5.1994 and as per the admitted case of the parties the entire alleged episode of demolition and damage is said to have taken place on that very date. Ext. B has its co-relation with single storied house situated on the main Gouri Shankar Road and Ext. B1 has its co- relation with holding No. 144 situated at plot No. 534, i.e., the property covered under Annexure-3 and Ext. B2 is in respect of attachment regarding the triple-storied house covered by Annexure-1 to the writ application. It has also been held that the petitioner had failed to prove the removal of the valuable beyond the list contained in the attachment report and the demolition or damage, if any, at the instance of respondent Nos. 2, 4 and 5 to the said immovable properties . It has also been stated in para 33 of the report very specifically that "This shows that on 19.5.1994 very minor damages, if any, may have been caused to the concerned houses and the structure and, therefore, out of a feeling that the same might not make a good case" against the police, petitioner No. 1 waited before filing of the petition until the houses and the structure were substantially damaged or demolished on 21.5.1994 by himself or his sons or men. It appears also strange as to why petitioner No. 1 did not get the properties examined by P.(1). W. 5 immediately after the occurrence and why he kept waiting for the same for nearly 1 1/2 months. The only possible answer is that petitioner No. 1 and his sons aforesaid, after damaging or demolishing the houses and the structure on 21.5.1994 filed the petition on 24.5.1994 as a step towards the making out of a case and finally after getting prepared the reports of P.(1). W. 5 as an after-thought, took the matter to the Hon'ble High Court." In the concluding portion of the report it has been stated that some damages might indeed have been caused to the immovable properties concerned in the police action on 19.5.1994, the responsibility of which cannot be fastened on respondent No. 2 for want of any evidence involving him directly or indirectly also on respondent Nos. 4 and 5 for want of their identification as the police officers who made the damages or got the damages caused.
11. In pursuance of the order dated 16.12.1994 of this Court the following points were formulated in course of enquiry in CrWJC No. 260 of 1994 (R) :--
(A) Whether order attachment under Section 83, Cr PC was obtained by respondent No. 3 in Mango P.S. Case No. 101/94 (GR Case No. 786/94) against the petitioner's husband accused Saiyed Naushad from respondent No. 4 in a hasty manner with malajide intention and whether in the garb of execution of the said order respondents No. 2 and 3 either themselves or through their subordinates with the help of labourers demolished or cause to be demolished on 15.5.1994 the house and shop rooms standing on old plot No. 4443 under old Khata No. 160 (new plot No. 3244 under new Khata No. 574) in Ward No. 8 Pardih, Zakir Nagar, P.S. Mango and, if so, how much loss, if any, was thereby suffered by the owner of the said house and shop rooms ?
(B) Whether in the garb of execution of the said order of attachment respondent No. 3 and the Police at the instance of respondent No. 3 entered into the said house on 15.5.1994 and despite protest made by the petitioner and without giving her any copy of the seizure list took away therefrom ornaments worth Rs. 2,18,004/- and other article worth Rs. 2.25.640/- ?
(C) Whether on account of demolition or damage to the said house and shop rooms the petitioner is entitled to any compensation and, if so, to what extent and from which of the respondents ?
(D) Whether on account of the alleged removal or ornaments worth Rs. 2,18,004/- and other articles worth Rs. 2,25,640/-, the petitioner is entitled to any compensation and, if so, from which of the respondents ?
The Enquiring Officer has come to the finding so far point B and D are concerned that no movables in excess of those mentioned in the attachment report were taken away by the police on 15.5.1994 from the house in question and petitioner is not entitled to any compensation with respect to the alleged removal of ornaments and other articles from the said house. As regards point No. A it has been stated by the E.O. that it stands established that not only respondent No. 3 rather respondent Nos. 3 and 2 both acting together in a malajide and hastily manner obtained the order of attachment under Section 83, Cr PC against the petitioner's husband Syed Naushad in Mango P.S. Case No. 101/94 (GR Case No. 786/94) from respondent No. 4 and in the garb of the execution of the said order got the concerned house and shop rooms badly damaged causing a loss of approximately Rs. 1,00,000/- to the owner of the premises. So far point No. C is concerned, it has been stated in the report that the house and shop rooms do not belong to the petitioner and she is entitled to any compensation whatsoever. It has also been stated that in the absence of evidence of the petitioner's ownership there remains the admitted case of the parties regarding the ownership of the petitioner's husband Syed Naushad in respect of the house in question. It has also been stated that "therefore, in the background that neither the deed of gift has been proved nor any other documentary evidence showing the petitioner's ownership has been brought in evidence it has become the established position that the house belongs to Syed Naushad."
12. There is no denying the fact that Md. Hidyatullah Khan and Md. Jumman Khan are the sons of original petitioner No. 1, Enayatullah Khan, who has died during the pendency of Cr WJC No. 264 of 1994 (R), and they figured as accused in Jugsalai P.S. Case No. 89/94 (GR Case No. 807/94) under Sections 387/506/34. IPC which was instituted on 15.5.1994 on the basis of the written report of A.K. Srivastava, O/C-cum-S.I., Jugsalai P.S. and respondent No. 3. Sri B.N. Singh, S.I. Jugsalai P.S. was ordered to investigate this case. The FIR was received in the Court of respondent No. 4. Chief Judicial Magistrate, Jamshedpur on 16.5.1994 and on that very day aprayer was made in writing on behalf of respondent No. 3, the I.O., for issuance of warrant of arrest for the apprehension of both the accused person aforesaid which was allowed and warrant of arrest, as prayed, was issued. Thereafter, respondent No. 3 filed a petition on affidavit annexing the warrant of arrest before respondent No. 4 on 18.5.1994 stating therein that both the accused person aforesaid are evading arrest and they are also in look out of the vendees for the sale of their properties and a prayer was made for the issuance of process under Sections 82 and 83, Cr PC against them. The prayer of respondent No. 3 was allowed vide order dated 18.5.1994 and processes, as prayed, were issued. The certified copy of the order sheet of the said case, which is Annexure-6 in this case, corroborates the aforesaid fact. It further appears from Exts. B and B/1 annexed with the record of the enquiry conducted by Sri Pratap Singh, Addl. District Judge, Jamshedpur that the processes under Sections 82 and 83, CrPC issued against both the accused persons aforesaid were executed on 19.5.1994. It is relevant to mention here that petitioner No. 1 has not disclosed the date of execution of the process under Sections 82 and 83, Cr PC aforesaid in his writ petition for the reasons best known to him. It is equally relevant to mention here that on no other date any process under Sections 82 and 83, Cr PC issued in Jugsalai P.S. Case No. 89/ 94 dated 15.5,1994 (GR Case No. 807/94) was ever executed. It also appears from Ext. B that one old sofa set, one old tin almirah, one old wooden chaukhat, four pairs of wooden planks of door, all in broken condition, and one iron plank of door were seized from the pucca house of Md. Hidyatullah Khan situate north of the road on Gouri Shanker Road, Jugsalai. Ext. B/1 also shows seizure of one iron grill, one chair, four chaukhats and one wooden plank of door all in broken and two chaukhats with iron rod from the Baithaka of the house of accused Jumman Khan situate at Gouri Shanker Road. The execution reports aforesaid do not at all whisper regarding the removal of any other articles as averred in the supplementary affidavit of the petitioner. As per the enquiry report the single stoned house bearing plot No. 628 holding No. 315 is situated on the main Gouri Shanker Road whereas the triple storied house bearing holding No. 144 and plot No. 524 is situated in a bye lane from the said road and the third property, i.e., holding No. 164, plot No. 534 is situated south wards of the said triple storied house intervened by two other houses in a bye lane 50 yards away from Main Gouri Shanker Road without any trace of any house or structures having ever been on it and it is open land with boundary wall with a iron gate. It is also pertinent to mention here that process under Sections 82 and 83, Cr PC was also executed against accused Kudrutullah Khan in a different case i.e., Jugsalai P.S. Case No. 80/94 dated 10.5.1994 as per Ext. B2 annexed with the enquiry report and said Kudrutullah Khan is one of the sons of petitioner No. 1 Ext. B aforesaid shows the place from where the concerned attachment was made which is the pucca house of Md. Hidyatullah Khan situated north wards of Gouri Shanker Road. Ext. A/2 is a report of execution of the process under Sections 82 and 83, Cr PC in respect of the fruit shop styled as M/s Md. Din Sher Afzal Khan alleged to be belonging to petitioner No. 2 which is in respect of GR Case No. 413-A/87 under Sections 147 and 323, IPC and it was executed on 21.5.1994. It is, therefore, pertinent to mention here that the attachment and execution of the process under Sections 82 and 83, Cr PC of the said fruit shop of petitioner No. 2 has no co-relation at all with Jugsalai P.S. Case No. 89/94 dated 15.5.1994, The petitioners in the writ petition have wrongly made out a case regarding the execution of the process aforesaid in respect of the said fruit shop in Jugsalai P.S. Case No. 89/94. Therefore, there is material suppression of facts in this writ petition in respect of thereof and the execution of the process aforesaid in respect of the fruit shop of petitioner No, 2 which is in respect of GR Case No. 413-A/87 has no co-relation with Jugsalai P.S. Case No. 89/94 dated 15.5.1994. It also appears that there is mis-joinder of cause of action in this case in the absence of any pleading regarding the process issued under Sections 82 and 83. Cr PC in respect of GR Case No. 413A/87 so far fruit shop of petitioner No. 2 is concerned. On this score alone petitioner No. 2 is not entitled to have any relief as prayed in this case beside the finding of the Enquiring Officer regarding the said fruit shop belonging to accused Md. Hidyatullah Khan. It is also relevant to mention here that process issued under Sections 82 and 83, Cr PC against Kudrutullah Khan in Jugsalai P.S. Case No. 80/94 dated 10.5.1994 as per Exts. B/2 annexed with the enquiry report has its co-relation with triple storied house bearing holding No. 144 and plot No. 524 (Annexure-1 to the writ petition). There is no averment in the writ petition in respect of the execution of the process aforesaid issued against accused Kudrutullah Khan in Jugsalai P.S. Case No. 80/94 dated 10.5.1994 in respect of the said triple storied house and here again there is material suppression of fact in the writ petition in the absence of specific averment in respect thereof and as such the question of non-joinder of the cause of action equally arises in this case. Admittedly, the triple storied house was acquired by Shirin Khatoon, the wife of petitioner No. 1, Enayatullah Khan (since dead) by virtue of the sale deed dated 24.5.1961 executed by Basi Ban Bibi. Shirin Khatoon aforesaid had died on 7.2.1982 and the said triple storied house was inherited by her husband i.e., petitioner No. 1 besides her six sons including Kudrutullah Khan besides her two daughter as per the law of succession.
Therefore, the averment in para 3 in the supplementary affidavit filed on 25.9.1996 that upon the death of Shirin Khatoon, petitioner No. 1, Enyatullah Khan (since dead) became the absolute owner of the building purchased by her by registered sale-deed is not at all tenable and against the law of succession of Mahomedan. There are three classes of heirs of a deceased Mahomedan, namely, Sharers, Residuaries and Distant Kindered. Sharers are those who are entitled to a prescribed share of the inheritance. Residuaries are those who take no prescribed share but succeed to the residue after the claims of the sharers are satisfied. Distant kindred are those relations by blood who are neither sharers nor residuaries. In this case petitioner No. 1, Enyatullah Khan succeeds regarding triple storied house on the death of Shirin Khatoon to a prescribed share under the law and all six sons including Kudrutullah Khan and accused Md. Hidyatullah Khan and Jumman Khan and the two daughters succeed in the said triple storied house as residuaries. Therefore the share of petitioner No. 1 in the said house shall be 1/4th as Sharer and the remaining 3/4th share in the said house shall be inherited by the sons and daughters of Shirin Khatoon and the daughters take as a residuary with the sons, the son taking a double share. In view of the principle of inheritance, Kudrutullah Khan besides accused . Md. Hidyatullah Khan had their share in the said triple storied house, which they have succeeded as residuary heirs in respect thereof. Therefore, the case of petitioner No. 1 that he is absolute owner of triple storied house after the death of Shirin Khatoon is palpably false and incorrect and there is again material suppression in respect thereof. Since Kudrutullah Khan and also accused Md. Hidyatullah Khan have interest in the said property there is no illegality at all in issuance of process under Sections 82 and 83, Cr PC against Kudrutullah Khan in respect of the said triple storied house in Jugsalai P.S. Case No. 80/94 dated 10.5.1994. It is equally relevant to mention here that the execution of the process under Sections 82 and 83, Cr PC on 19.5.1994 issued against accused Hidyatullah Khan and Jumman Khan in Jugsalai P.S. Case No. 89/94 has no co-relation with the said triple storied house. Therefore the alleged claim of the petitioner No. 1 regarding the triple storied house is not at all legally tenable. Exts. B and B/1 are the execution reports of the process issued against accused Md. Hidyatullah Khan and Jumman Khan in Jugsalai P.S. Case No. 89/94 and Ext. B has its co-relation with the single storied house bearing plot No. 628 holding No. 315 situated on the Main Gouri Shanker Road and Ext. B/1 has its co-relation with the third property i.e., holding No. 164, plot No. 534 which are admittedly the property of writ petitioner No. 1 as per Annexures 2 and 3 of the writ petition. Some movables have been seized in execution of the process aforesaid from there. It appears from the enquiry report that the aforesaid two accused persons were in occupation of the said premises. It also appears from the enquiry report aforesaid that some damages might indeed have been caused to the property aforesaid in the police action on 19.5.1994. The damages, if any caused in the execution of the process as per Exts. B and B/1 is but natural as when the chaukhat, plank and grill fixed in the wall, if removed, will definitely cause some damages and for such a trifling damage in the execution of the process under Sections 82 and 83, no judicial notice is ordinarily taken of in respect thereof. The most important aspect of the matter is that there is no averment in the writ petition of petitioner regarding any damage cause to holding No. 315, plot No. 628 and holding No. 164 plot No. 534 in the execution of the process. Para 24 and 35 of the writ petition of petitioner No. 1 are relevant in respect thereof in which there is reference of damage cause to the triple storied house only in the execution of the process, which has no co-relation with Jugsalai P.S. Case No. 89/94. However, in the supplementary affidavit a case has been made out by the writ petitioner regarding the damage caused to other two holdings covered under Annexures 2 and 3 in the execution of the process which appears to be an afterthought as a result of deliberation with ulterior and mala fide motive. The E.O. has come to a specific finding that petitioner No. 1 has himself caused damage in this residential premises to malign respondent Nos. 2, 3 and 4 with a view to make out a case for damages. I therefore, see no illegality in the finding of the E.O. in view of the materials on the record in course of enquiry. The alleged removal of the immovble property from the premises aforesaid has also been found to be incorrect by the E.O. which are beyond Exts. B and B/1 and no case of damage is at all made out as claimed by the petitioners.
13. Let us now come to the question as to whether simultaneous issuance of the process under Sections 82 and 83, Cr PC is according to the law or not. It is pertinent to mention here that after the Institution of Jugsalai P.S. Case No. 89/94 warrant was issued against accused Md. Hidyatullah Khan and Jumman Khan for their arrest on 16.5.1994 and when they could not be apprehended in execution of the warrant, respondent No. 3 filed a petition on affidavit before respondent No. 4 on 18.5.1994 annexing the warrant of arrest with its execution report for the issuance of the process under Sections 82 and 83. Cr PC against them stating specifically in the said petition that they are evading arrest and they are also looking for the vendees for the sale of their properties and respondent No. 4 being satisfied has issued the process under Sections 82 and 83, Cr PC as prayed. Section 82, Cr PC mandates and empowers the Court to issue proclamation against a person when he has reason to believe when a warrant issued against him remain unexecuted for evasion, concealment or abscondance of such person. Section 83, Cr PC mandates and empowers the Court issuing a proclamation under Section 82 of the Code aforesaid for the reasons to be recorded in writing at any time after the issue of the proclamation order to attach any property movable or immovable or both, belonging to the proclaimed person. Proviso to Section 83 of the Code also provides that where at the time of the 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 the property or to remove the said property from the local jurisdiction of the Court it may order the attachment of the property simultaneously with the issue of the proclamation. It cannot be said that process under Section 83 cannot be issued unless process under Section 82 is issued first. It is also not necessary that process under Section 83 should be delayed till the time fixed in the process under section 82 has elapsed. The only aspect of the matter is that the process under Sections 82 and 83 cannot be issued unless it is established that a warrant has already been issued against the person wanted and that person is absconding. Therefore, respondent No. 4, the Chief Judicial Magistrate, was empowered to issue process under Sections 82 and 83, Cr PC simultaneously in the facts of this case for the reasons that the aforesaid accused persons are evading arrest by concealing themselves and they are absconders and there is, therefore, no illegality in simultaneously issue of process under Sections 82 and 83, Cr PC when the warrant of arrest earlier issued could not be executed. The ratio of the ease of Baleshwar Singh. 1974 BLJR 281, relied upon by the petitioner in this case is of no help to him in view of the fact that accused Md. Hidyatullah Khan had his share in the triple storied house and the process issued against him in Jugsalai P.S. Case No. 89/94 has never been executed against him in respect to the triple storied house aforesaid. The execution of the process as per Exts. B and B/1 has its co-relation with the single storied house bearing plot No. 628 holding No. 315 (Annexure-2) and plot No. 534 holding No. 164 (Annexure-3) which as per the materials on the record are the properties of petitioner No. 1 but in occupation of the accused Md. Hidyatullah Khan and Jumman Khan but there is also no averment in the writ petition regarding any damage caiised to the properties covered by Annexures-2 and 3 in execution of the process issued against them in the said Jugsalai P.S. Case No. 89/94 which has been dealt in detail as referred to above. The ratio of the case of Dip Narayan Singh and Others, 1981 (29) BLJR 461 is also of no help to the petitioner in view of the fact that the I.O. in his petition in this case has only averred that the accused were evading arrest, therefore, their property be attached. Since the mandatory requirements for issuing of simultaneous process under Sections 82 and 83, Cr PC were absent in the petition of the I.O. and as such it was held therein that the order issuing of the attachment is in violation of law. Here in the case before us the mandatory requirements stand fulfilled as per the averments contained in the petition of the I.O. for the issuance of simultaneous process under Sections 82 and 83, Cr PC against accused Md. Hidyatullah Khan and Jumman Khan. Therefore, there is no error apparent on the face of record in issuance of the simultaneous processes against accused Md. Hidyatullah Khan and Jumman Khan under Sections 82 and 83, Cr PC. In the facts of this case Section 84, Cr PC has also its relevancy and the petitioner had to take steps under Section 84, Cr PC by filing objection to the attachment in question putting his claims. Section 84, Cr PC provides a complete machinery by which, so far as the criminal Court is concerned, the right, title and interest of the claimant or objector to the attached properties have to be determined and in case the claim or objection being disallowed, the person has to institute as suit within one year from the date of such order. Petitioner No. 1 has filed a petition (Annexure-10/1) before the Court of CJM, Jamshedpur but in view of the relief claimed therein, it cannot be said to be a petition under Section 84, Cr PC. Therefore, the petitioners did not invoke Section 84, Cr PC in this case and have filed a writ petition. The petitioners ought to have exercised their right under Section 84, Cr PC and exhausted their remedies in respect thereof and thereafter they should have come to this Court under the writ jurisdiction to ventilate their grievance. Therefore, the writ petition of the petitioners suffers with inherent legal infirmities. Therefore, for the reasons stated above, the petitioners are not entitled to claim any relief in this case. Thus the writ petition (Cr WJC No. 264/94) suffers with suppression of facts besides not taking recourse of Section 84, Cr PC and as such they are not entitled for the relief as claimed by them. Cr WJC No. 260 of 1994
14. Mango P.S. Case No. 101/94 dated 9.9.1994 (GR No. 786/94) under Sections 384, 385, 386 and 387, IPC was instituted on the basis of self-statement of Martin Tirky, S.I.-cum-O/C, Mango P.S. in which Md. Naushad @ Ram Chandra S/o Samsuddin, resident of Baban Gora P.S. Ajad Nagar along with four others figures as accused. The written report and the formal FIR of the said case were received in the Court of Chief Judicial Magistrate on 11.5.1994. Annexure-10 is the certified copy of the order sheet of Mango P.S. Case No. 101/94 aforesaid. It appears from its perusal that respondent No. 3, the I.O., filed a petition (Annexure-5) before the Court of respondent No. 4 (CJM) on 12.5.1994 praying therein for the issuance of warrant of arrest and also the process under Sections 82 and 83, Cr PC but the learned CJM only ordered for the issuance of warrant of arrest against Naushad aforesaid and other co-accused of that case. Thereafter respondent No. 3 filed a petition (Annexure-6) on affidavit before the Court of CJM aforesaid on 14.5.1994 affixing the warrant of arrest with it along with its execution report praying therein for issuance of process under Sections 82 and 83, Cr PC stating specifically that all the accused of the said case including Naushad are removing their properties from the local jurisdiction of the Court and the learned CJM on being satisfied ordered for the issuance of the process under Sections 82 and 83, Cr PC simultaneously vide order dated 14.5.1994 against accused Naushad aforesaid along with other co-accused persons. The processes aforesaid were executed on 15.5.1994 in presence of the witnesses and the immovable properties were seized. Annexure-9 to the writ petition is the execution report of the process aforesaid which shows that one old broken ceiling fan, one old Ajanta Quartz clock, one old steel dekchi, one old steel glass, eight old broken wooden planks, four iron grill gate, four iron plank, one cane chair, two small chairs of sofa and one old broken central table were seized from the house in occupation of accused Naushad. There is no dispute in respect of the fact that accused Naushad was in occupation of the house in which he was residing with his wife Mrs. Shabnam, the writ petitioner along with his children. Admittedly, accused Naushad had acquired the said house standing on, old Khata No. 160, old plot No. 4443 corresponding to new Khata No. 574 and new plot No. 3244 situate at Zakir Nagar. P.S. Mango and it was mutated in respect thereof vide order dated 12.4.1990 passed in Mutation Case No. 657 of 1989-90. The writ petitioner Mr. Shabnam, the wife of accused Naushad, claims to have acquired the said house by virtue of registered deed of gift dated 17.3.1993 executed by her husband accused Naushad aforesaid in her favour along with her children. A typed copy of the said deed of gift is Annexure-3 to the writ petition and she claims herself to be absolute owner thereof and respondent No. 4 without making any enquiry as to who is the rightful owner of the said premises ordered process under Sections 82 and 83, Cr PC for its attachment and in course of the attachment in the execution of the process aforesaid the police unlawfully demolished and damage the said house and all the shops which stood in the said premises of this writ petitioner and seized numerous valuable articles from the said house which exclusively belongs to the petitioner which has caused her a loss of about Rs. Five lakhs. The details of the valuable articles including ornaments have been averred in the supplementary affidavit, the value of which amounts to Rs. 4,53,000/-. It is pertinent to mention at the very outset that the case of petitioner as averred in the supplementary affidavit that her valuable articles have been removed in the execution of the process aforesaid does not at all hold good in view of Annexure-9, the execution report in respect thereof, and as such, the facts averred regarding removal of the valuable articles in the supplementary affidavit are nothing but an embellishment as a result of afterthought and deliberation. It further appears from the materials on the record that no protest was ever made by the petitioner either prior to the execution of the process aforesaid or in course of its execution to the executing agencies regarding the fact that the premises aforesaid absolutely belongs to the writ petitioner. Respondent No. 3 in the counter-affidavit has specifically denied any damage or demolition of the house in question only admitting the fact in the process of attachment and removing the doors and grills fixed with the walls some damage might have been without which the doors and grills could not have been removed. The respondents have emphatically denied any other damage caused to the house in question and it has been stated therein that the accused and his relative themselves had damaged the said house after the attachment to defame and demoralize the police. The respondents have also denied to have destroyed and demolished the house and belonging to the tenants in the said house. The E.O. in the enquiry report has however found extensive damage to the said house on his surprise inspection of the premises made on 23.5.1995, i.e., roughly one year after the alleged date of the execution of the process.
There is no legal evidence at all on the record to come to the finding of the fact that the damage as found by the E.O. has been caused on 15.5.1994 i.e., on the date of the execution of the process aforesaid. It is also relevant to mention here that no step has been taken by the petitioner immediately soon after the alleged damage to her house before the competent authority in respect thereof for the reasons best known to her. Therefore, there is no legal evidence at all on the record to arrive at a finding of fact that damage, as found by the E.O. in the house in question, has been caused on 15.5.1994 when the processes were executed. Moreover, trifling damage is but natural in the premises from where door, planks and grills are attached and removed in the execution of the process as per An-nexure-9 and no judicial notice is ordinarily taken of for such a trifling damage. Therefore, the case of the petitioner regarding the claim of damage has no leg to stand. Any person having an interest in the property which is the subject matter of attachment has to prefer his claim or objection to the attachment under Section 84, Cr PC Section 84, Cr PC provides a complete machinery by which, so far as the criminal Court is concerned, the right and interest of claimants or objectors with regard to the attached properties have to be determined and in case the claim of objection being disallowed, such person has to institute a suit within one year from the date of such order. The writ petitioner did not invoke her rights in respect of the attachment in question regarding the said property under Section 84, Cr PC and have filed this writ application. The petitioner ought to have exercised her right under Section 84, Cr PC first and after exhausting her remedy in respect thereof ought to have come before this Court under writ jurisdiction to ventilate her grievance. The petition dated 21.5.1994 (Annexure-11) to the writ petition cannot be termed as a petition under Section 84, Cr PC. Therefore, the writ petition of the petitioner suffers with inherent legal infirmity in respect thereof. Simultaneous issuance of the process under Sections 82 and 83, Cr PC in the facts and circumstances of this case against accused Naushad does not at all suffer with any illegality. It is pertinent to mention here that warrant of arrest was firstly issued for the apprehension of accused Naushad, the husband of the writ petitioner on 12.5.1994 and when he could not be apprehended in execution of the warrant, respondent No. 3 filed a petition on affidavit with the execution report of the warrant of arrest for issuance of the process under Sections 82 and 83, Cr PC against the accused specifically stating therein that the accused is removing his properties out of the jurisdiction of this Court and the learned Court below being satisfied in respect thereof was within his right to issue process under Sections 82 and 83 Cr PC simultaneously. The proviso of Section 83, Cr PC provides and mandates the Court that where at the time of the issuance of the proclamation he is satisfied by affidavit or otherwise that the person in relation to whom the proclamation is to be issued is about to remove the whole or any part of his property from his local jurisdiction it may order the attachment simultaneously with the issue of the proclamation. The only precaution the Court has to take is that process under Sections 82 and 83, Cr PC cannot be unless it is established that a warrant has already been issued against the person wanted and that person is absconding. Here, in this case, there were ample material on the record to show that warrant of arrest could not be executed and there was an execution report of the warrant attached with the petition filed by respondent No. 3 for the issuance of the process under Sections 82 and 83, Cr PC. There is therefore no illegality in simultaneous issue of the process under Sections 82 and 83, Cr PC in this case when the warrant of arrest earlier issued could not be executed. Therefore, for the reasons stated above the writ petitioner is not at all entitled to claim any relief in this case.
15. Therefore, in the facts and circumstances, both the writ petitions i.e., Cr WJC No. 264/94 (c) and CrWJC No. 260/94 @ are hereby dismissed but without cost.
Lakshman Uraon, J.
I agree.