Patna High Court
Kishori Devi vs State Of Bihar And Anr. on 27 September, 1995
Equivalent citations: 1995(2)BLJR1431
JUDGMENT S.K. Chattopadhyaya, J.
1. Two important questions arise in this case; one of which is as to whether in pursuance of a proclamation order under Section 82 of the Code of Criminal Procedure, the property of any individual who is not the proclaimed person can be attached. The second point for consideration is as to whether the Police Officer is under an obligation to furnish the inventory of seized articles to the Magistrate forthwith as required under Section 25 of the Bihar Police Manual 1978.
2. In order to appreciate the contention raised by the parties, backdrop of the facts may be portrayed. The petitioner is admittedly mother of the absconder namely, Ashok Soni. This Ashok Soni was wanted by the Police and for his apprehension the properties were seized in execution of the process issued by the Court of Chief Judicial Magistrate Ranchi. The petitioner filed a petition for release of the seized articles purported to be under Section 84 of the Code of Criminal Procedure but by order dated 24.4.1995 the learned Chief Judicial Magistrate, Ranchi, rejected her prayer for release of the same. Being aggrieved the petitioner filed a revision against the said order and the learned Judicial Commissioner Ranchi, by his order dated 4.5.1995, after setting aside the order of the C.J.M. remitted the matter with a direction to hold an enquiry and to pass a fresh order. The aforesaid orders are Annexures-1 and 2 respectively. The C.J.M., directed an enquiry to be held by the Judicial Magistrate Ist Class and on 6.7.1995 the learned Judicial Magistrate, after holding an enquiry, came to the finding that the petitioner was the owner of the seized properties. He directed the opposite party No. 2 to release the seized articles in favour of the petitioner and a copy of the order was also sent to the S.S.P. Ranchi. However, it appears that after receiving the said enquiry report of the Judicial Magistrate the matter was re-considered by the learned Chief Judicial Magistrate and by impugned order dated 14.8.1995, he has refused to release the seized articles to the petitioner.
3. Mr. A. K. Sinha, learned Counsel appearing for the petitioner strongly contended that when the petitioner is admittedly not an offender, her property could not have been seized by the Police on the ground that one of her sons is an offender and wanted by the Police. Referring to the enquiry report of the Judicial Magistrate, Mr. Sinha submits that when during the enquiry the Police did not produce any evidence to rebut the assertion of the petitioner that she is the owner of the seized articles and the Judicial Magistrate having satisfied directed the officer in-charge to release the articles, the Chief Judicial Magistrate should not have refused the prayer of the petitioner without applying his mind. He further submits that the audacity of the Officer-in-charge of Argora Police Station is apparent from the faceof record that inspite of repeated directions he did not produce the inventory before the Court which he was bound to do under the law.
4. Mr. Jawahar Prasad, learned Counsel appearing for the opposite parties, On the other hand, has tried to justify the reasoning given by the Chief Judicial Magistrate by submitting that when the said Ashok Soni was living with the petitioner under the same roof it would be presumed that Ashok Soni was also the owner of the articles seized. His further contention is that if these type of steps are not taken by the Police then no criminal, like Ashok Soni, can be apprehended by the Police.
5. In order to appreciate the arguments of the learned Counsel for the parties, one has to examine the provisions as laid down in Sections 82 and 83 of the Code of Criminal Procedure. Section 82 of the Code has given power to the court to publish a written proclamation requiring an offender to appear at a specified place and at a specified time against whom a warrant has been issued by it. This power, the Court can exercise if he has reason to believe that the said person has absconded or is concealing himself in order to avoid arrest.
Section 83(1) reads as follows:-
Attachment of property of person absconding:- (1) 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, movable or immovable, or both, belonging to the proclaimed person;
Provided 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:-
(a) is about to dispose the whole or any part of his property.
OR
(b) is about 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.
6. The provisions of Section 83 of the Act, it appears, had been enacted for the express purpose of compelling an accused to appear in obedience of a summons or warrant issued by a criminal court and this is a penalty which is sought to be enforced against him to coerce to respondent to the orders of the Criminal Court and take his trial and not avoid the reach of justice. For this reason the property, which is attached is the property of the accused.
7. It appears that the learned Chief Judicial Magistrate initially passed an order on 24.4.1995 without holding any enquiry refusing to release the properties to the petitioner. The Revisional Court set aside the order and remitted the case to him with a direction to hold an enquiry. Inquiry was held by the Judicial Magistrate in compliance of the order of the Chief Judicial Magistrate, Ranchi. It appears from the order dated 6.7.1995 that before arriving at a conclusion the judicial Magistrate gave opportunity to the opposite parties to substantiate the claim that the seized articles belonged to Ashok Soni. Opposite Parties, however, failed to adduce any evidence. However, the petitioner adduced evidence in support of her claim and Magistrate gave a finding that the petitioner was the owner of the articles. The learned Chief Judicial Magistrate, on the other hand, has rejected the contentions of the petitioner only on the ground that the witnesses examined by the petitioner before the Magistrate were her tenants and husband. He also took into consideration that there is no denial of the fact that Ashok Soni was living in the house of the petitioner. In my opinion, the Chief Judicial Magistrate, has completely misdirected itself in appreciating the facts as well as the law on this point. Only because Ashok Soni was living with his parents in the same house, it cannot be said that Ashok Soni had any right, title and interest in that house or over the property seized without any specific finding to that regard. I have already noticed above that no attempt was made by opposite parties to satisfy the Judicial Magistrate that Ashok Soni, being a member of the undivided Hindu Joint Family, had any specific interest in the seized property. In the case of Bisi Bihari v. Emperor reported in A.I.R. 1917 Patna 505, it has been held that if one member of a joint undivided family absconds, the law does not authorise the Magistrate to attach the property of the Family.
8. The objection and claim against any attachment can be made under Section 84 of the code. If such claim is preferred, Sub-section (3) of Section 84 of the Code contemplates enquiry by the Court in which claim or objection is preferred. However, if the claim is preferred before the C.J.M. he may direct the Magistrate to make enquiry, sub-ordinate to him. In the case of Panchu Gopal Mullic and Anr. v. The State and Anr. , while interpreting Sub-section (6A) to (6E) of Section 88 of the old Code (which is now Section 83 of the New Code) inter alia it has been held that "It cannot be urged, in an enquiry under Section 88, Sub-section (6A) to (6E), that the Magistrate is not concerned with the question of determination of 'interest' in the property and that he is concerned with the question of "possession" only. The word 'interest' in Sub-section(6A) is a word of wider import and cannot be limited to mere claim of possession.
9. Section 83 as noticed above, contemplates that both movable or immovable properties can be attached, which belongs to be a 'proclaimed person'. The word 'belonging to the proclaimed person', in my opinion cannot be given wider sense by including the property of the family members also. The meaning of word 'belonging' has been given by the Supreme Court as lawful dominion. However, this word was interpreted by the Apex Court while deciding a case of Wealth Tax reported in Nowal Sumir Osman Ali Khan v. CWT .
10. After careful consideration of different provisions, I am of the opinion that for the fault of Ashok Soni, the property of the petitioner could not have been seized. This was done by the opposite party No. 2 in utter violation of the mandate of the Code and the learned Chief Judicial Magistrate erred in law in not appreciating this aspect of the matter. My aforesaid view finds support from the case of Baleshwar Singh v. The State of Bihar reported in 1974 PLJR, 26. In that case it has been observed that for fault of a son the property of his father cannot be attached because there is no evidence to show that the property attached belongs to his son.
11. I have indicated above that there is specific averment in paragraph 14 of the petition that the petitioner migrated to India from Rangoon in the year 1965 and is doing her own business and looking after a shop and earning money. The house was purchased by the petitioner in year 1981, the articles in the house were purchased by herself and she is the owner of the house as well as the property therein. These assertions have not been controverted by opposite party No. 2 in his counter-affidavit. The main emphasis in the counter-affidavit is that Ashok Soni, the son of the petitioner, is a hardened criminal and is wanted in several cases. A number of cases have also been given. But this, in my view, cannot make the petitioner responsible. If there would have been any evidence to show that Ashok Soni, being a member of the Hindu Joint family, had any specific interest in the seized articles the matter would have been different. By this not so.
12. Under these circumstances, the impugned order dated 14.8.1995 passed by the Chief Judicial Magistrate, cannot be sustained in law and must be set aside.
13. The next question, which falls for consideration is as to whether the opposite party No. 2 was legally bound to send the inventory to the Court below. The seizure was made in the months of March 1995. Order dated 6.7.1995 of the Judicial Magistrate reveals that Officer-in-charge Argora Police Station was directed to produce the seizure list before the Court but was not produced. Even the order of the C.J.M. dated 19.5.1995 directing the Officer Incharge to send the said report was not complied with. Moreover, in this regard learned A.P.P. in the Trial Court sent a letter of request and it was received in the Police Station, but even then the inventory was not sent to the court. It is really surprising as to how this aspect of the matter was lost sight by the Chief Judicial Magistrate. When his direction was not complied with by the Officer Incharge, it was his duty to take appropriate action against the concerned officer incharge. The impugned order does not reveal that he has taken any step with regard to the observation of the Judicial Magistrate, about deliberate negligence on the part of a Police Officer.
14. Recently in the case of Umesh Prasad v. State of Bihar and Ors. reported in 1995 (2) All. PLR 575 this Court, under similar circumstances, has directed the concerned officer-in-charge to pay compensation from his own pocket. His Lordship, while interpreting Section 25 of the Police Manual 1978, has held that it is obligatory on the part of Police officials to furnish an inventory of seized articles to the Magistrate of the district without any delay.
15. It appears from the counter-affidavit of the opposite party No. 2, the present officer incharge of Argora P.S., that one Sri M.K. Srivastava was posted as Officer Incharge of the said Police Station at the relevant time. The present Officer-in-charge has joined there on 25.8.1995. Under this circumstances, it is clear that the said Sri Srivastava failed to comply with, not only the mandatory provisions as laid down in the Police Manual but also directions of the Chief Judicial Magistrate, as well as the Judicial Magistrate and this cannot be appreciated by this Court. No explanation, whatsoever, has been given as to why the inventory was not sent to the court and why no witness was produced on behalf of the opposite parties to substantiate the claim that Ashok Soni was the owner of the seized property. In the counter-affidavit also there is no averment that seized properties belonged to Ashok Soni. The only stress on the fact that he was a hardened criminal, wanted by the police and he resides with the petitioner under the same roof. This is high time this type of atrocity by the police against the innocent citizen must be stopped. This Court cannot be a silent spectator..
16. Considering the facts and circumstances of the case, in my view, the impugned order cannot be allowed to stand. In the result this application is allowed, the impugned order of the Chief Judicial Magistrate, dated 14.8.1995 is set aside. The present Officer in-charge of Argora Police Station, opposite party No. 2, is directed to release the seized articles to the petitioner as mentioned in Annexure-A to the counter-affidavit, within one week from the date of receipt of a copy of this order.
17. Mr. Jawahar Prasad, learned A.P.P., who is present in Court, is directed to communicate the same to opposite party No. 2. Let a copy of this order be handed over to him immediately.
18. Before parting with this judgment, I must express my regret to the manner in which earstwhile Officer-incharge of Argora Police Station, Srivastava has dealt with an innocent citizen of this country. A protector of law cannot be allowed to be a destroyer of law. The facts and circumstances of the case compels me to award a compensation to the petitioner. I assess compensation of Rs. 10,000/- and hold that Sri Srivastava, the then" Officer-incharge of Argora Police Station is personally liable to pay the amount of compensation to the petitioner within three months from today. He is personally liable as because for his illegal and arbitrary action without any authority of law. Public exchequer need not be subjected to suffer. The Secretary cum-Home Commissioner, Government of Bihar as well as the Director General of Police, Bihar shall ensure that the aforesaid amount is paid to the petitioner within three months by Sri Srivastava. In case he does not pay the amount to the petitioner within the period prescribed, the Government shall pay the compensation amount to the petitioner within the said period and shall realise the same from his monthly salary or otherwise.
19. Let a copy of the order be sent to the Secretary cum-Home Commissioner, Government of Bihar and the Director General of Police, Bihar for necessary action.