- (1.) Heard Sri Daya Shanker Mishra Advocate for the applicants, Sri Raj Kumar Khanna Advocate appearing on behalf of the complainant and Sri Jai Prakash, learned A. G. A. for the State.
(2.) This application has been filed on behalf of the accused challenging the orders dated 6-10-2004, 1-11-2004, and 6-1-2005 in case Crime No. 1156 of 2004, Police Station Amroha, under Sections 307, 302 I.P.C. State v. Guman Ahmad alias Manna. The orders challenged in this application are in respect of the proceedings initiated against the applicants under Sections 82, 83 Cr. P.C. The applicants are the accused in a murder case. Initially the case was registered under Sections 307, 504 I. P. C. Later the injured died and the case was converted under Sections 302, 506 I. P. C. The F. I. R. was registered on 13-10-2004 but the applicants have not surrendered till date. The order dated 16-10-2004 which is Annexure-1 to the affidavit, is an order issuing non-bailable warrants on an application moved by the Investigating Officer that the accused have absconded and they are removing their movable properties, therefore, process under Sections 82, 83 Cr. P. C. was prayed for. However, the learned Magistrate issued non-bailable warrants. Subsequently another application was moved on 26-10-2004 which is Annexure-2 to the affidavit filed in support of the application, wherein it was mentioned that the proclamation of the process issued on 19-10-2004 under Section 82 Cr. P. C. has been completed in accordance with law, in spite of it, the accused have not appeared, on the contrary they are removing movable properties and as such a request for issuing process under Section 83 Cr. P.C. was made. This application was supported by an affidavit filed by the Investigating Officer. The learned Chief Judicial Magistrate passed an order on 27-10-2004 that since a surrender application has already been moved on behalf of the accused in which 1-11-2004 was fixed and in the circumstances, the application for issuing process under Section 83 Cr. P. C. was directed to be placed on the same day i.e. 1-11-2004 along with surrender application. This order was passed on 27-10-2004, a copy of which has been annexed as Annexure-3 to the affidavit. On 1-11-2004 the surrender application was rejected by the Chief Judicial Magistrate for the reason that the accused were seeking continuous adjournments, on the other hand, the application under Section 83 Cr. P. C. moved by the Investigating Officer supported by an affidavit specifically mentions that the proclamation under Section 82 Cr. P. C. has been made in accordance with law. Publication in the newspaper has also been made, as such the Chief Judicial Magistrate was satisfied that the process under Section 83 Cr. P. C. should be issued. Accordingly the Chief Judicial Magistrate passed orders under Section 83 Cr. P. C. The attachment memo has been annexed has been annexed as Annexure-6 to the affidavit to show that all the household articles including the utensils, gas cylinders, wooden doors etc. have been taken away. It was emphatically argued by Sri Mishra that a number of articles taken away by the police in the garb of warrant of attachment under Section 83 Cr. P. C., was not only that of the accused but all the other articles belonging to the other family members as well. The last order that has been challenged is dated 6-1 -2005 wherein the learned Chief Judicial Magistrate has passed orders that the charge sheet against the accused has been submitted as absconder and since they have committed an offence under Section 302 I. P. C. as such the immovable property of the accused is also liable to be auctioned. In the operative portion of the order it has only been mentioned that a report be submitted by the Tehsildar Amroha regarding immovable property of the accused. The main argument of the counsel for the applicant is that on 16-10-2004 only non-bailable warrant was issued and no order under Section 82 Cr. P. C. was passed. In the report, it has been mentioned that the case diary was preferred before the Magistrate for its perusal and no reason has been given by the Magistrate for his satisfaction, in view of the various decisions of the Apex Court. In support of the argument, learned counsel for the applicants has cited a number of decisions. The first case relied upon by the counsel is Devendra Singh Negi v. State of U. P. 1993 All Cri 455 : (1994 Cri LJ 1783), Sri Mishra has laid emphasis on the following observations made in the said decision : - (paras 16 and 18) "The procedure laid down under Section 83 has to be followed strictly. Jurisdiction to pass an attachment order cannot be assumed unless a proclamation under S. 82 of the Code has been issued. The normal rule is that the Magistrate has to wait until the expiry of 30 days to enable the accused to appear in terms of the proclamation. The words "at any time after the issue of proclamation" are not to be interpreted in isolation. The key for gathering the intention of the law makers is to be found in Sec. 82 of the Code. Sections 82 and 83 of the Code do not spell out dichotomous procedures, they are to be read in harmony. Thus except in cases covered by the proviso to Sec.83 (1) the attachment order has to maintain a distance of not less than 30 days from the date of the publication under Sec. 82. These 30 days are to be computed from the date of publication of the proclamation and the provisions in this respect are mandatory. It must be emphasized here that the nature of the satisfaction mentioned in the proviso is objective and not merely subjective. The attachment of property incurs civil consequences and is deprivation of the valuable right to property of the person whose property is so attached. The satisfaction cannot be arrived at arbitrarily or on fanciful grounds. There has to be evidence by way of reliable evidence or other tangible material on which alone such satisfaction can be founded."
(3.) It is thus argued that the satisfaction of the Magistrate should be objective and not merely subjective. In the instant case, the order dated 6-1 -2005 is only for the limited purpose i.e. report called for regarding immovable property. The order is yet to be passed and it cannot be said that calling a report from the Tehsildar amounts to passing of the final order. The Magistrate has yet to pass the order for auction and sale of immovable property of the accused. 1 may also add here that in the instant case non- bailable warrants were issued almost 8 months back but the accused have not appeared till date. In the circumstances, it is not one of those cases where the Magistrate has acted in haste in calling for the report which is the first step before passing order for attachment of immovable property of the accused. Another decision cited by the counsel is Kapilmuni Karwariya v. State of U. P. 1996 U. P. Cri. R. 653. In the said case, this Court had ruled that every person who is not immediately available, cannot be characterized as an absconder. The Court has to record its satisfaction that the accused has absconded and concealing himself to avoid execution of warrant. The facts of the present case is altogether different from the one cited by the learned counsel. The application dated 26-10-2004 which has been annexed as Annexure 2 to the affidavit, clearly mentions that the proclamation under Section 82, Cr. P. C. has been made in accordance with law on 19-10-2004. Besides, while passing the order dated 27-10-2004, the Magistrate has given a reason for rejecting the surrender application, as repeated adjournments were sought by the accused and it was brought to the notice of the Court by the Investigating Officer that the movable properties were removed by the accused and therefore, he had no other option but to issue process under Section 83, Cr. P. C. It is thus clear that the facts of the case of Kapilmuni Karwariya (supra) is absolutely different from the present one. The third decision relied upon is Sudhendu alias Chunnu Sriva'stava v. State of U. P., 1995 (2) J. I. C. 2033 (All.). The ratio decided in the present case is also similar to those decisions cited earlier by the counsel for the applicants. The next case relied upon by the counsel is Ratish Rai v. Mohesh Singh, 1985 Cri LJ 94 (Gauhati). The counsel has laid stress on the point that the process under Section 83 Cr. P. C. can only be passed after the provisions of Section 82, Cr. P. C. has been issued. The argument that no process under Section 82, Cr. P. C. has been passed before the process under Section 83, Cr. P.C. was issued, is wrong as the application supported by an affidavit of the Investigating Officer which has been brought on record by the applicants themselves, clearly mentions that the proclamation of the process under Section 82 Cr. P. C. has already been issued in accordance with law. Specific date has been given in the affidavit when the order under Section 82, Cr. P. C. was passed and proclamation was issued. The last case relied upon by the counsel for the applicants is A. R. Antulay v. Ramdas Sriniwas Nayak, 1984 SCC (Cri) 277 : (AIR 1984 SC 718 : 1984 Cri LJ 647). Emphasis has been laid in paragraph 22 of the said decision which is quoted below : "Once the contention on behalf of the appellant that investigation under S. 5-A is a condition precedent to the initiation of proceedings before a Special Judge and therefore cognizance of an offence cannot be taken except upon a police report, does not commend to us and has no foundation in law, it is unnecessary to refer to the long line of decisions commencing from Taylor v. Taylor (1875-76(1) Ch 426), Nazir Ahmad v. King-Emperor (AIR 1936 PC 253(2) : (1936) (37) Cri LJ 897) and ending with Chettiam Veettil Ammad v. Taluk Land Board (AIR 1979 SC 1573) laying down hitherto uncontroverted legal principle that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden." It has been argued by Sri Mishra that where the statute contemplates certain things to be done in a particular way, it must be done in that way or not at all. The argument on behalf of the applicants that an act should necessarily be done in the manner as provided by the statute is not disputed but in the present case it cannot be said that the process under Section 83, Cr. P. C. was issued against the procedure provided by the Code or the last order dated 6-1 -2005 calling report from the Tehsildar regarding immovable property of the accused is an order without following the proper procedure of law. In fact the accused have committed a grievous offence and they have all along taken shelter behind various orders of the Court, are in fact not entitled for any relief as they have misused and abused the procedure of law raising super technical objections. Admittedly, the charge sheet has been submitted and the accused have been declared as absconder, in spite of it, they have challenged the orders of attachment in this Court without compliance of the various orders of the Magistrate.;