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Patna High Court

Prabhakar TiwariversusThe State of Bihar through Vigilance Investigation Bureau

Decided
Disposal
ALLOWED

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

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
Patna High Court CR. MISC. No.17235 of 2026(4) dt.12-05-2026
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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
Patna High Court CR. MISC. No.17235 of 2026(4) dt.12-05-2026
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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
Patna High Court CR. MISC. No.17235 of 2026(4) dt.12-05-2026
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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
Patna High Court CR. MISC. No.17235 of 2026(4) dt.12-05-2026
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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.
Patna High Court CR. MISC. No.17235 of 2026(4) dt.12-05-2026
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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
           Patna High Court CR. MISC. No.17235 of 2026(4) dt.12-05-2026
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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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