Dhananjay Kumar Pandey & Ors vs State Of Bihar Thru.Vigilance on 24 November, 2011

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Patna High Court
Dhananjay Kumar Pandey & Ors vs State Of Bihar Thru.Vigilance on 24 November, 2011
Author: Aditya Kumar Trivedi
                       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.
                                 -------------

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)
==================================================
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

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