SAFAYATULLAH KHAN Vs. STATE OF BIHAR

JUDGEMENT

(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.

(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.