Patna High Court
Prabhakar TiwariversusThe State of Bihar through Vigilance Investigation Bureau
- Decided
- Disposal
- ALLOWED
- Bench
- PRAVEEN KUMAR
Holding
The order directing issuance of process under Sections 82 and 83 of the CrPC was quashed as the trial court failed to satisfy the procedural requirements of the proviso to Section 83.
Summary
The petitioner, a contractor, challenged an order dated 26.03.2025 of the Special Judge, Vigilance, Patna, which directed the issuance of a non‑bailable warrant and processes under Sections 82 and 83 of the Criminal Procedure Code in a vigilance case involving alleged corruption and IPC offences. The petitioner argued that he had not committed any offence and that the trial court had not complied with the procedural requirements, particularly the proviso to Section 83, which mandates satisfaction that the accused is about to dispose of or remove property before a proclamation can be issued. The High Court examined the record and found that no service report of the warrant had been produced and that the trial court had issued the proclamation and warrant simultaneously without satisfying the proviso. Consequently, the Court held that the procedural safeguards under Section 83 were not observed. The order directing issuance of the processes was therefore quashed and the petition was allowed.
Issues considered
- Whether the Special Judge correctly issued a non‑bailable warrant and processes under Sections 82 and 83 of the CrPC without complying with the proviso to Section 83.
- Whether the absence of a service report of the warrant renders the issuance of proclamation invalid.
- Whether the order dated 26.03.2025 should be set aside on procedural grounds.
Legislation cited
- Criminal Procedure Code — s. 82, 83
- Indian Penal Code — s. 109, 120B, 201, 409, 420, 467, 468, 471, 477A
- Prevention of Corruption Act, 1988 — s. 13(1)(d), 13(2)
Subjects
- Criminal Procedure
- Section 82
- Section 83
- Proclamation
- Non‑bailable warrant
- Procedural lapse
- Quash
- Vigilance case
- Corruption
- IPC offences
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.17235 of 2026
Arising Out of PS. Case No.-9 Year-2001 Thana- VIGILANCE District- Patna
======================================================
Prabhakar Tiwari S/o Harkishore Tiwari Resident of - Ganiyari Gass Factory
Road, Singhrouli, P.S -Waidhan, District - Singhrouli, State- M.P.
... ... Petitioner
Versus
The State of Bihar through Vigilance Investigation Bureau Bihar
... ... Opposite Party
======================================================
Appearance :
For the Petitioner : Mr. Ashhar Mustafa, Advocate
For the Opposite Party : Mr. Arvind Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE PRAVEEN KUMAR
CAV ORDER
4 12-05-2026 Heard learned counsel for the petitioner and learned
counsel appearing on behalf of Vigilance Investigation Bureau.
2. By filing this application, the petitioner has prayed
for setting aside order dated 26.03.2025 passed by the learned
Special Judge, Vigilance, Patna, directing issuance of process
under Section 82 and 83 of Cr.P.C. against the petitioner in
connection with Special Case No. 09A of 2001, arising out of
Vigilance P.S. Case No. 09 of 2001, dated 16.06.2001,
registered for the offences punishable under Sections 109, 120B,
201, 409, 420, 467, 468, 471, 477A of the Indian Penal Code
and Section 13(2) read with Section 13(1)(d) Prevention of
Corruption Act 1988.
3. The case of the prosecution, in brief, is that the then
SHO, Vigilance Police Station, Patna, received a
communication from the Under-Secretary, Cabinet Vigilance
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Department, Bihar, Patna, contained in Letter No. 47/93-1248,
dated 09.04.2001, enclosing therewith the enquiry report of the
Technical Examination Cell, Cabinet Vigilance Department,
Bihar, Patna, along with the noting of the concerned Engineer-
in-Chief and the decision of the Government to the effect that in
the construction of road from Ojhwalia More to Agiaon market
situated within Piro block, which was got executed by Rural
Engineering Organization, Bhojpur, misappropriation by the
concerned public servants by drawing exaggerated estimate of
the work in question had surfaced as also the work was not
carried out as per the specifications. It was, thus, alleged that
concerned public servants, abusing their official position,
indulged in conspiracy and misappropriated several lakhs of
government money.
4. As per direction, on the basis of the documents
made available to him, the informant carried out preliminary
inquiry on all the issues and found that there is prima facie
material indicating culpability, warranting prosecution of
concerned public servants for indulging in offences of cheating,
forgery as also under Prevention of Corruption Act, 1988 by
abusing their official position.
5. On analysis of the materials made available to the
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informant, he found prima facie material against (1) Om
Prakash Prasad, Executive Engineer, (ii) Vinod Kumar. Assistant
Engineer and (iii) Kamla Prasad, Junior Engineer of Rural
Engineering Organization, Ara, u/under Sections 109, 120B,
201, 409, 420, 467, 468, 471, 477(A) of the Indian Penal Code
and Section 13(2) read with 13(1)(d) of the Prevention of
Corruption Act 1988.
6. It is further alleged that on the recommendation of
the Additional Director General, Vigilance Investigation
Bureau, Bihar, Patna, formal FIR came to be registered against
the above named and unnamed accused persons under Sections
109, 120B, 201, 409, 420, 467, 468, 471, 477(A) IPC and
Section 13(2) read with 13(1)(d) of the Prevention of Corruption
Act 1988, giving rise to Vigilance P.S. Case No. 09 of 2001, and
the copy of letter dated 09.04.2001, forwarded by Cabinet
Vigilance Department with enclosures was duly appended with
the FIR.
7. Learned counsel for the petitioner has submitted
that the petitioner is one of the contractors of the said project
and has not committed the alleged offence. He has falsely been
implicated in this case even though he has carried out the part of
the works allocated to him in accordance with the work order
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complying with the prescribed specification. He has further
been submitted that surprisingly, the informant himself had
taken over the charge of the investigation as Investigating
Officer.
8. It has further been submitted that since one of the
FIR named accused, namely, Kamla Prasad, Junior Engineer,
REO, died on 16.05.2007, during the course of investigation,
charge-sheet was submitted vide CS No. 246 of 2007, dated
20.11.2007, under Sections 109, 120B, 201, 409, 420, 467, 468,
471, 477(A) IPC and Section 13(2) read with 13(1)(d) of the
Prevention of Corruption Act, 1988, against the remaining two
FIR named accused persons as also against six named
contractors including the petitioner. On submission of charge-
sheet, cognizance was taken by the learned Special Judge
Vigilance I, Patna, against all the eight charge-sheeted accused
persons vide order dated 04.12.2007 for the offences punishable
under Sections 109, 120B, 201, 409, 467, 468, 471, 477A IPC.
Cognizance was also taken under Section 13(2) read with 13(1)
(d) of Prevention of Corruption Act, but that was taken only
against such accused persons including the petitioner, who were
not public servants. It was indicated in the said order that so far
as public servants are concerned, cognizance of offences under
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Prevention of Corruption Act, 1988 shall be taken against them
only after receipt of sanction order in the case. By the same
order, proceeding against accused Kamla Prasad was dropped as
he died during the court of investigation and the office was also
directed to issue non-bailable warrant of arrest against all the
accused persons including the petitioner. It has also been
submitted that from perusal of the order-sheet of the trial court,
it would appear that the case of the petitioner was separated by
order dated 12.04.2016. The learned court below has, without
adhering to the procedure prescribed and waiting for the service
report of the non-bailable warrant of arrest, by order dated
26.03.2025, directed for issuance of non-bailable warrant and
the processes under Sections 82 and 83 CrPC simultaneously,
which is unsustainable and requires to be interfered by this
Court by setting aside the same.
9. Learned counsel for the Vigilance Investigation
Bureau, on the other hand, vehemently opposed the prayer of
the petitioner and submitted that there is no infirmity in the
order impugned warranting interference of this Court and the
application is fit to be dismissed.
10. Heard learned counsel for the parties and perused
the record.
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11. On perusal of the record and the order-sheet, it
transpires that no service report of warrant of arrest (non-
bailable) was received, which has been recorded in various
order-sheets of the learned trial court. The case of the petitioner
was separated by order dated 12.04.2016 and suddenly by order
dated 26.03.2025, the learned trial court directed for issuance of
non-bailable warrant of arrest and the processes under Sections
82 and 83 CrPC simultaneously. The learned trial court, as
transpires from perusal the order-sheets, was itself waiting the
service report of non-bailable warrant of arrest and without
satisfying itself with the service report, suddenly issued non-
bailable warrant of arrest and the processes under Sections 82
and 83 CrPC simultaneously.
12. It is important to mention that Section 82 and 83
CrPC processes can be issued only after taking recourse to the
proviso to Section 83 CrPC, which reads as follows: -
“Provided that where at the time
of the issue of the proclamation the Court is
satisfied, by affidavit or otherwise, that the
person in relation to whom the proclamation
is to be issued, -
(a) is about to dispose of the whole
or any part of his property, or
(b) is about to remove the whole
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or any part of his property from the local
jurisdiction of the Court,
it may order the attachment
simultaneously with the issue of the
proclamation.”
13. In view of the facts and circumstances
aforementioned, this Court comes to a finding that the
procedure, as prescribed under proviso to Section 83 CrPC, has
not been followed by the learned trial court.
14. Taking into account the entire facts and
circumstances and the totality of the case, this Court has no
option, but to quash the order dated order dated 26.03.2025
passed by the learned Special Judge, Vigilance, Patna, directing
issuance of process under Sections 82 and 83 of Cr.P.C. against
the petitioner in connection with Special Case No. 09A of 2001,
arising out of Vigilance P.S. Case No. 09 of 2001. Accordingly,
the impugned order dated 26.03.2025 is quashed.
15. This application is allowed.
(Praveen Kumar, J)
Pawan/-
AFR/NAFR NAFR
CAV DATE 27.04.2026
Uploading Date 12.05.2026.
Transmission Date 12.05.2026.
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