Criminal Writ No.417 of 2001
Against the order dated 17.3.2001 passed by Special Judge,
Vigilance, (South Bihar) in connection with Vigilance P.S. Case
No.37(4) 78/ leading to Spl. Case No. 158/83.
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1. Dhananjay Kumar Pandey
2. Dr. Bijay Kumar Pandey
3. Dr. Ajay Kumar Pandy
4. Sanjay Kumar Pandey
5. Binay Kumar Pandey
6. Mritunjay Kumar Pandey, All sons of Sri Haridwar Pandey
resident of Laxmi Bhawan, South Patliputra Colony, At + P.O.-
Patliputra, Patna-800013
. ... .... Petitioner/s
Versus
State Of Bihar Through Vigilance Commissioner, 12, Baily Road,
Patna.
…. …. Respondent/s
Appearance :
For the Petitioner/s : Mr. Binay Kumar Pandey, Adv.
For the Respondent/s : Mr.B.P. Pandey, Spl.P.P.(Vigilance)
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P R E S E N T
HON’RABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
Aditya KumarTrivedi, J. Petitioners have prayed for quashing of order
dated 17.03.2001 passed by Special Judge, Vigilance, (South Bihar) in
connection with Vigilance P.S. Case No.37(4) 78/ leading to Spl. Case No.
158/83 whereby and whereunder the prayer of the petitioners have been
refused so far release of articles was concerned.
2. The factual matrix of the case happens to be the father of
the petitioners namely, Haridwar Panday stood as an accused in Vilgilance
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Case No. 37(4)78 on the basis of which Special Case No. 158/83 arose
wherein so many writs were filed on behalf of father of the petitioners on
different score and lastly vide order dated 12.5.1998 the Hon’ble Apex
Court has directed to conclude the trial on or before 31.12.1998 and in the
aforesaid background speedy trial was being conducted. On account of
illness, as pleaded is the accused, Haridwar Panday became physically
absent and was represented before the court under Section 317 of the
Cr.P.C. and continuing with the aforesaid status, the prosecution evidence
was closed on 29.8.1998 and the case automatically came at the stage of
recording of statement as provided under Section 313 of the Cr.P.C. As
Haridwar Panday failed to give his physical presence for getting his
statement recorded under Section 313 of the Cr.P.C, therefore his
representation was rejected followed with cancellation of bail bond vide
order dated 31.8.1998. Subsequently thereof, as the warrant of arrest non-
bailable could not be executed therefore, proclamation under Section 82 of
the Cr.P.C. was issued and then after covering the stipulated period under
the garb of service report, the attachment as prescribed under Section 83 of
the Cr.P.C. was issued in pursuance of which there has been attachment of
properties for release of which, the instant litigation appears to be in its
third round.
3. Without adverting to the submissions raised on behalf of
the petitioners, as well as learned counsel for the Vigilance, I would like to
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refer the order of the Apex Court passed in Cr. Appeal No. 169/2000
arising out of S.L.P. (Cri) 3832/1999 and in my view, the aforesaid order
is capable to remove the mist whatever is appearing over the issue and for
that I would like to incorporate the relevant passage which goes like this:-
” From several proceedings pending in this Court we
have also been informed by the accused Haridwar Panday that he is ill
and is getting treatment in AIIMS. In this view of the matter the
Magistrate was not justified in rejecting the application for release of the
property on the sole ground that accused Haridwar Panday is absconding.
The High Court also failed to exercise its jurisdiction vested in law in not
correcting the said error and dismissing the writ petition filed. In the
aforesaid premises we quash the order of the High Court dated
10.05.1999 as well as that of the Magistrate dated 17.02.1999 and We
direct the Magistrate concerned to consider the application filed by the
appellants for release of property on merits”.
4. When the status of accused Haridwar Panday as posed by
learned lower court to be “absconder” has been derecognized by the
Hon’ble Apex Court in the background of the fact whatever been
enumerated in the order itself, then in that situation, the application of
Section 82 or 83 does not arise. In likewise manner, the attachment made in
pursuance thereto happens to be contrary to the direction of the Hon’ble
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Apex Court. Therefore, the second round of litigation as well as the third
one on having the prayer rejected by the learned lower court vide order
dated 17.3.2001 cannot be held to be legally recognizable as, on account of
the above referred order passed by the Hon’ble Apex Court, no other scope,
was left open to the learned lower court whereunder prayer for release has
been rejected.
5. Consequent thereupon, the order impugned is set aside.
Petition is allowed.
6. Learned lower court is directed to release the articles in
accordance with the seizure list.
( Aditya Kumar Trivedi, J.)
Patna High Court
The 24th Of November 2011
Md. Perwez Alam/AFR