Patna High Court
Case Details
Patna High Court CR. WJC No.1236 of 2011 (4) dt.08-01-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.1236 of 2011 ====================================================== 1. Ravi Shankar Kumar Akela Shree Kameshwar Prasad Karpi,Ps- Khizarsarai,Distt.Gaya. .... .... Petitioner/s Versus 1. The State Of Bihar Through The Director General Of Police,Bihar,Patna. 2. Dy.Inspector General Of Police,Magadh Range,Gaya. 3. Sr.Superintendent Of Police Gaya. 4. Office Incharge,Khizarsarai Police Station Gaya. .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER 4 08-01-2013 A counter affidavit has been filed on behalf of the State. It is taken on record. The petitioner was made accused in Khizarsarai P.S.Case No. 63 of 2007 registered under Sections 341, 323, 386 and 506 of the Indian Penal Code and Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. By order dated 24.09.2008 the learned Chief Judicial Magistrate, Gaya had issued process under section 83 of the Code of Criminal Procedure (hereinafter referred as “the Code”) against the petitioner. In compliance to the aforesaid order dated 24.09.2008, the police raided the house of the petitioner on 30.10.2008 and attached movable properties. The petitioner subsequently appeared in the court on 17.03.2009 and furnished bail bonds. He, thereafter, filed an application for release of
Legal Reasoning
Patna High Court CR. WJC No.1236 of 2011 (4) dt.08-01-2013 2 attached property. The Judicial Magistrate, Ist Class, before whom the matter was pending after hearing the parties ordered for release of the property under attachment vide order dated 27.05.2009. The father of the petitioner, namely, Kameshwar Prasad filed a separate application on 20.07.2010 before the Magistrate concerned for release of the attached property. However, his application was dismissed as not pressed vide order dated 20.08.2010 passed by the Magistrate concerned. On 20.08.2010 itself, the petitioner filed another application for release of the attached property. The learned Magistrate vide order dated 20.08.2010 called for a report from the Officer-In-Charge concerned on the petition filed on behalf of the petitioner. The petitioner had also sought for a report under the Right To Information Act regarding status of his attached property. The Superintendent of Police, Gaya vide memo no. 791 dated 05.06.2010 informed the petitioner that as and when the petitioner would visit the police station concerned along with the release order the property attached would be released in his favour. In the present writ petition in paragraph 1, the petitioner has made the following prayers : “1. That this is an application on behalf of the petitioner invoking the writ jurisdiction of this Hon’ble Court for grant of following Patna High Court CR. WJC No.1236 of 2011 (4) dt.08-01-2013 3 reliefs:- (i) To issue a writ in the nature of mandamus calling upon the respondents particularly respondent nos. 3 and 4 to release all articles/goods which were attached u/s 83 of the Cr.P.C. from the house of the petitioner in the light of the order dated 24.09.2008 passed by the learned C.J.M. in connection with Khizarsarai P.S.Case No. 63 of 2007 a case instituted for the offences u/s 341,323,386, 506 of I.P.C. and Section 3(x) of the SC/ST Act. (ii)To issue a writ in the nature of mandamus to release the aforesaid attached articles/goods of petitioner for which a releasing order has already been issued by the learned Judicial Magistrate, Gaya vide order dated 27.05.2009 (annexure-2) in the aforesaid case of the petitioner. (iii)To direct the respondents to obey aforesaid order dated 27.05.2009 passed by the learned Magistrate, Gaya. (iv)To direct the respondents not to harass the petitioner by withholding the all articles/goods which were attached long back although already order of the learned Magistrate, Gaya has been conveyed to the Superintendent of Police, Gaya; Officer- Incharge, Khizarsarai P.S. and authority also Patna High Court CR. WJC No.1236 of 2011 (4) dt.08-01-2013 4 by the Court process as well by the petitioner through request/application along with the order of the court. (v)To direct the respondents to pay compensation with interest for the perished good/articles on account of the unreasonable delay in returning back the same despite order of the learned court of Magistrate and approach of petitioner in the P.S. (iv)To grant any other reliefs, orders(s), direction(s) for petition is entitled to have.” In the counter affidavit the stand of the State is that the writ petitioner has never approached the respondent no.4 for release of the attached property. Learned counsel for the State submits that as and when the petitioner would appear before respondent no.4, the property attached in compliance of the process issued under section 83 of the Code shall be released to him. It is apparent from the record that the learned Magistrate vide order dated 27.5.2009 has already ordered for release of the attached property. The allegation that the respondents are not releasing the attached property has been denied in the counter affidavit. The petitioner has brought on record certified copy of the order dated 18.05.2007 to 21.12.2010 which has been marked Patna High Court CR. WJC No.1236 of 2011 (4) dt.08-01-2013 5
Decision
as annexure 2 to the writ petition. From perusal of the order sheet, it does not appear that the order of release of the attached property was ever communicated to the police station concerned. In that view of the matter, the petitioner is directed to approach the respondent no. 4 in order to receive the attached property. The moment the petitioner would approach the respondent no.4, he shall be obliged to release the attached property forthwith. So far as the question of grant of compensation with interest for the perished goods/articles on account of the unreasonable delay in returning back the same despite order of the learned court of Magistrate is concerned, the facts are not admitted. Of course, there was order of release of the attached property in the file of the Magistrate but the issue is as to whether the order of Magistrate was ever communicated to the police station and the petitioner ever went to the police station to receive attached property. The contention of the petitioner is that he went to the police station but despite knowledge of the order passed by learned Magistrate, the respondent no.4 deliberately denied release of the attached property. On the other hand, the stand of the State is that the petitioner never visited the police station with copy of the release order passed by the learned Magistrate and as Patna High Court CR. WJC No.1236 of 2011 (4) dt.08-01-2013 6 such the attached property is lying in the police station. It is well settled that an application under Article 226 of the Constitution of India is to be determined on admitted facts or on facts established by affidavits. Thus, in view of the disputed question of fact, I am not inclined to entertain and adjudicate the said prayer of the petitioner. The petitioner, if so advised, may raise the dispute relating to compensation with interest before an appropriate forum to deal with the matter by recording evidence. The writ petition is disposed of with the aforesaid directions and observations. Md.S./- (Ashwani Kumar Singh, J)