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. P.C. 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. Original petitioner No. 1, Enayatullah Khan (since dead) in Cr. W.J.C. 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 had 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 -storied 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 an 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 (G.R. Case No. 807/94) was registered against Md. Hidyatullah Khan and Md. Jumman Khan, the sons of petitioner No. 1 aforesaid on 15 -5 -1994 under Sections 387/506/34 of the IPC on the basis of a written report of A.K. Srivastava, OIC 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 Cr. P.C. and respondent No. 3 issued process under Sections 82 and 83 Cr. P.C. 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. P.C. and respondent No. 5 under the directions of respondent No. 2 in pursuance of the process under Sections 82 and 83 Cr. P.C. 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 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 movables therefrom.
(3.) 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 has demolished the said building in the execution of process under Sections 82 and 83 Cr. P.C. issued against the accused persons whereas the provision under Sections 82 or 83 Cr. P.C. 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. P.C. before respondent No. 3. It is alleged that Section 82 Cr. P.C. 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. P.C. issued the process, simultaneously under Section 82 and 83 Cr. P.C. without stating the grounds of his satisfaction in issuing the said process and the entire order issuing process under Sections 82 and 83 Cr. P.C. 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 movable 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. P.C, by virtue of the order dated 18 -5 -1994 of respondent No. 3 in G.R. No. 807 of 1994 (Jugsalai P.S. Case No. 89 of 1994 against Md. Hidayatuilah 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 Cr. P.C: 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. P.C. The case law reported in 1981 BLJR 461 and 1974 BLJR 281, have been referred to in support of their contention.;