Patna High Court
MUSAFIR SINGHversusTHE STATE OF BIHAR THROUGH THE HOME SECRETARY GOVERNMENT OF BIHAR, PATNA
- Decided
- Disposal
- DISPOSED
- Bench
- ARUN KUMAR JHA
Holding
The Court held that the simultaneous issuance of a warrant, proclamation and attachment without compliance with the procedural requirements of Sections 73, 82 and 83 CrPC is illegal, but such orders cannot be quashed in the present writ petition, leading to dismissal of the petitions.
Summary
The petitioners Kaushik Singh and Musafir Singh challenged orders of the Additional Chief Judicial Magistrate‑I, Benipatti, which simultaneously issued an arrest warrant (Sec. 73 CrPC), a proclamation (Sec. 82 CrPC) and attachment of property (Sec. 83 CrPC) against them in connection with a murder FIR filed under multiple IPC and Arms Act provisions. They argued that the police requisitions lacked affidavits, were filed without any evidence of evasion or risk of disposal of property, and violated the procedural safeguards of the CrPC and their fundamental right to life and liberty under Art. 21. The State contended that the writs were infructuous after the petitioners’ arrest and bail, but admitted procedural lapses. The Court held that the composite orders were illegal because the statutory conditions for each provision were not satisfied, yet such orders could not be quashed in the present writ petition; consequently, the petitions were dismissed. The Court noted the illegality but gave the matter quietus, disposing of both writ petitions and pending interlocutory applications.
Issues considered
- Whether the Additional Chief Judicial Magistrate‑I could validly issue a warrant, proclamation and attachment simultaneously under Sections 73, 82 and 83 of the CrPC without complying with the statutory prerequisites.
- Whether the police requisitions for such orders were required to be supported by affidavits and evidence of the accused evading arrest or disposing of property.
- Whether the writ petitions challenging the magistrate’s orders are maintainable under Article 226 of the Constitution.
- Whether the petitioners are entitled to compensation for alleged violation of their fundamental rights.
Legislation cited
- Arms Act — s. 27
- Code of Criminal Procedure, 1973 — s. 73, 82, 83, 84, 85
- Indian Penal Code — s. 120B, 147, 148, 149, 302, 307, 323, 324, 325, 326, 341
Subjects
- Criminal writ jurisdiction
- Section 73 CrPC
- Section 82 CrPC
- Section 83 CrPC
- Procedural due process
- Fundamental rights
- Article 21
- Misfeasance in public office
- Compensation
- Quashing of orders
- Police requisition
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.374 of 2022
Arising Out of PS. Case No.-67 Year-2021 Thana- BENIPATTI District- Madhubani
======================================================
Kaushik Singh @ Santosh Singh Son of Musafir Singh Resident of Village -
Mahmadpur, P.s.- Benipatti, Distt.- Madhubani.
... ... Petitioner/s
Versus
1. The State of Bihar through the Home Secretary, Govt. of Bihar, Patna. Bihar
2. The Home Secretary, Govt. of Bihar, Patna. Bihar
3. The Director General of Police, Govt. of Bihar, Patna. Bihar
4. The Inspector General (I.G.) of Police, Darbhanga. Bihar
5. The Superintendent of Police, Distt. Madhubani. Bihar
6. The Sub-Divisional Police Officer (SDPO) Benipatti, Distt.- Madhubani
Bihar
7. The Circle officer (C.O.), Benipatti, Distt.- Madhubani Bihar
8. The Station House Officer (SHO), P.s.- Benipatti, Distt.- Madhubani. Bihar
9. The Investigating officer (I.O.), P.s.- Benipatti, Distt.- Madhubani. Bihar
... ... Respondent/s
======================================================
with
Criminal Writ Jurisdiction Case No. 343 of 2022
Arising Out of PS. Case No.-67 Year-2021 Thana- BENIPATTI District- Madhubani
======================================================
Musafir Singh Son of Late Tunni Lal Singh Resident of Village- Mahmadpur,
P.S.- Benipatti, District- Madhubani.
... ... Petitioner/s
Versus
1. The State Of Bihar Through The Home Secretary Government Of Bihar,
Patna Bihar
2. The Home Secretary Government of Bihar, Patna. Bihar
3. The Director General of Police, Government of Bihar, Patna Bihar
4. The Inspector General (I.G.), Of Police, Darbhanga Bihar
5. The Superintendent of Police, District Madhubani Bihar
6. The Sub- Divisional Police Officer (SDPO), Benipatti, District- Madhubani.
Bihar
7. The Circle Officer (C.O.), Benipatti, District- Madhubani Bihar
Patna High Court CR. WJC No.374 of 2022 dt.30-03-2026
2/22
8. The Station House Officer (SHO), P.S.- Benipatti, District- Madhubani
Bihar
9. The Investigationg Officer (I.O.), P.s.- Benipatti, District- Madhubani. Bihar
... ... Respondent/s
======================================================
Appearance :
(In Criminal Writ Jurisdiction Case No. 374 of 2022)
For the Petitioner/s : Mr. Anand Kumar Ojha, Sr. Advocate
Mr.Ravindra Kumar Singh, Advocate
For the Respondent/s : Mr. Suman Kumar Jha, AC to AAG-3
(In Criminal Writ Jurisdiction Case No. 343 of 2022)
For the Petitioner/s : Mr. Anand Kumar Ojha, Sr. Advocate
Mr.Ravindra Kumar Singh, Advocate
For the Respondent/s : Mr.Md. Nadim Seraj, GP-5
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 30-03-2026
Both the writ petitions arise out of orders passed
by the learned Additional Chief Judicial Magistrate-I, Benipatti
in G.R. No. 200 of 2021 in connection with Benipatti P.S. Case
No. 67 of 2021 and hence, both the petitions have been taken up
together for disposal.
02. Criminal Writ Petition No. 343 of 2022 has
been filed for quashing of the order dated 06.04.2021 passed in
G.R. No. 200 of 2021 by learned Additional Chief Judicial
Magistrate-I, Benipatti against the petitioner and others ordering
for issuance of warrant, proclamation and attachment of
properties of the petitioner in connection with Benipatti P.S.
Case No. 67 of 2021, dated 29.03.2021 for the offences under
Sections 147, 148, 149, 341, 323, 324, 325, 326, 307, 302 and
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120B of the Indian Penal Code and Section 27 of the Arms Act.
03. Criminal Writ Petition No. 374 of 2022 has
been filed for quashing of the order dated 01.04.2021 passed in
G.R. No. 200 of 2021 by learned Additional Chief Judicial
Magistrate-I, Benipatti against the petitioner and others ordering
for issuance of warrant, proclamation and attachment of
properties of the petitioner in connection with Benipatti P.S.
Case No. 67 of 2021, dated 29.03.2021 for the offences under
Sections 147, 148, 149, 341, 323, 324, 325, 326, 307, 302 and
120B of the Indian Penal Code and Section 27 of the Arms Act.
04. Briefly stated, the facts of the case, as could be
culled out from the record, are that Benipatti P.S. Case No. 67 of
2021 was instituted on the basis of fardbeyan of informant Ram
Narayan Singh for an occurrence which took place at around
1.00 PM on 29.03.2021. In the fardbeyan, the informant stated
about hearing gun shot and commotion nearby his place and
when he reached the place he found the petitioners as well as a
number of co-accused persons, who were variously armed with
firearms and other weapons and they assaulted the son and
nephews of the informant killing them on the spot and seriously
injuring three family members of the informant. The petitioners
and 25 other persons have been named as assailants. It further
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transpires that subsequently two other injured persons
succumbed to their injuries during treatment. Altogether 35
persons have been named in the FIR along with 10-12 unknown
persons. Thus, FIR was instituted for the offences under
Sections 147, 148, 149, 341, 323, 324, 325, 326, 307, 302 and
120B of the Indian Penal Code and Section 27 of the Arms Act.
It further transpires from the record that the police filed
requisitions before learned Additional Chief Judicial Magistrate-
I, Benipatti on 31.03.2021 and 06.04.2021, respectively for
issuance of warrant, proclamation and attachment of property of
the petitioners under the provisions of Sections 82 and 83 of the
Code of Criminal Procedure (hereinafter the ‘CrPC’). Acting
upon the requisitions, the learned Additional Chief Judicial
Magistrate-I, Benipatti allowed the requisitions and ordered for
issuance of arrest warrant, proclamation and warrant for
attachment simultaneously. These orders are under challenge
before this Court.
05. Learned senior counsel, Mr. Anand Kumar
Ojha, appearing on behalf of the petitioners submitted that the
impugned orders are completely illegal. Learned senior counsel
further submitted that the petitioners are innocent and have been
falsely implicated in this case at the instance of their political
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rivals. They have no involvement in the whole occurrence.
Petitioner Musafir Singh is an old person aged 82 years, who
had been sleeping in his house when the occurrence is stated to
have taken place. Petitioner Kaushik Singh @ Santosh Singh is
son of petitioner Musafir Singh. The allegation against the
petitioners and even other co-accused persons is not believable
for the reason that the occurrence took place on the day of
festival of Holi and being covered with colour and mud, identity
of the any person, that too, from 100-500 meters was simply not
believable. But informant named the assailants of his family
members with specific details. The FIR was not lodged
immediately but after delay of 10 hours though the police
station was merely at distance of 3-4 km and it was a case of
murder of three persons with serious injuries to three other
persons. This shows false implication by the informant. Though
the police came to know about involvement of only 5-6 persons
in the case, still it has been proceeding against all the FIR
named persons due to political pressure. Learned senior counsel
further submitted that the main assailant Praveen Jha was
apprehended and his confessional statement was recorded and
he did not name the petitioners in his confessional statement.
Similarly, one of the victims in his statement on camera did not
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name the petitioners as assailants. The allegations of the
informant are also not believable in the background of the fact
that the informant claims to be an eye witness to the alleged
occurrence in which about 50 persons committed the crime and
shots were fired indiscriminately by 25 persons in group of five
each but informant did not receive a single scratch what to say
of any bullet or sharp cut injury. Learned senior counsel thus
submitted that in this background of facts, the illegality of the
impugned orders become magnified.
06. Assailing the impugned orders learned senior
counsel at the outset submitted that the petitioners would not
have otherwise approached this Court in the writ jurisdiction but
for the manifest illegality. The occurrence is stated to have taken
place on 29.03.2021 at 1.00 PM and the FIR was lodged at
10.30 PM on the same day. Just two days thereafter, the police
hurriedly filed the written requisition without any affidavit or
genuine reason or evidence seeking issuance of warrant,
proclamation and attachment of the property of the petitioners
and others. A few days thereafter, on 06.04.2021 another
application was filed with same prayer again without affidavit,
reason or evidence against the petitioner Musafir Singh and
others. The learned trial court, without batting eye-lid, allowed
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the requisitions vide orders dated 01.04.2021 and 06.04.2021
and attachment was done on 11.04.2021 and 25.04.2021
violating the provisions of the Code of Criminal Procedure.
There is complete non-application of judicial mind and
procedure laid down in the statute has been given a go bye in
making the requisition and passing the order.
07. Learned senior counsel next submitted that the
police without conducting proper investigation and without
filing any affidavit for issuance of warrant, by two composite
requisitions, dated 31.03.2021 and 06.04.2021, respectively
sought issuance of warrant, proclamation and attachment
simultaneously stating therein that these coercive processes
were required to secure the arrest of the accused. Learned senior
counsel contended that such course of action is unknown to the
scheme of the Code of Criminal Procedure as Sections 73, 82
and 83 of the CrPC operate in distinct stages and cannot be
invoked together merely to facilitate the arrest. Learned senior
counsel pointed out that invocation of extraordinary coercive
provisions without following the procedural due process
amounts to violation of fundamental right of a person under
Article 21 of the Constitution and such invocation demands
urgent intervention by this Court under Article 226 of the
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Constitution. The action of the police constitutes misfeasance in
public office and amounts to breach of trust and malafide
exercise of authority. Learned senior counsel referred to the case
of Dawood Ibrahim Kaskar Vs. State of Maharashtra, (2010)
10 SCC 438, wherein the Hon’ble Supreme Court held that a
warrant under Section 73 CrPC can be issued only for
production of the accused before the court and not in aid of
police investigation or arrest. The Hon’ble Supreme Court very
clearly held that the court cannot pass orders under this section
on mere asking of the police and has to apply its judicial
discretion. The court cannot act in the aid of police. Learned
senior counsel next referred to the case of Nalini Kant Agrawal
Vs. State of Bihar, 2003(1) PLJR 350, wherein it has been held
that though the court has power under Section 73 CrPC to issue
warrant, it is only for the purposes of securing appearance
before the court and not before the police. The power to secure
warrant or issue warrant of arrest under Section 73 CrPC cannot
be used solely for production of accused before the police in aid
of investigation. It has been further held that while issuing
warrant under Section 73 CrPC the Magistrate has to record
finding that the accused persons were evading their arrest and
this finding would depend on appreciation of facts pleaded in
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that regard and not on any ipse dixit of the investigating officer.
If that is not done then Section 82 and/or Section 83 CrPC
would not come into play and would be illegal exercise of
jurisdiction. Learned senior counsel next referred to the case of
Pinki Kumari & Anr. Vs. The State of Bihar and Others in
Criminal Writ Jurisdiction Case No. 712 of 2022, order dated
26.08.2022, wherein the learned Co-ordinate Bench held that
the impugned order was passed by the learned trial court in
complete haste. Learned Co-ordinate Bench further observed
that the requisition filed by the I.O. was not supported by any
affidavit and nothing was indicated as to when and what efforts
were made by the I.O. to execute the warrant. It was further
observed that there was nothing on record to indicate that the
I.O. had ever sent any notice calling upon the accused persons
to appear in the police station for purpose of interrogation. Thus,
the learned Co-ordinate Bench allowed the writ petition finding
it in complete violation of law and the judgments on the subject.
08. Learned senior counsel further submitted that
after the requisitions have been made in violation of law, the
learned trial court without applying independent judicial mind,
without taking note of any report or affidavit demonstrating
failure of arrest, without recording satisfaction that the accused
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was absconding or concealing himself and without complying
the mandatory 30 days period after proclamation before
attachment, on mere asking of the I.O., passed a composite
order in the case of Musafir Singh, just a day after requisition
and in the case of Kaushik Singh @ Santosh Singh on the same
day, for issuance of warrant under Section 73, proclamation
under Section 82 and attachment of property under Section 83
of the CrPC, the impugned orders thus violate the procedure
established by law. Learned counsel again referred to the case of
Pinki Kumari (supra) submitted that the learned Co-ordinate
Bench while deprecating the act of police authority also
criticized the passing of order invoking Sections 82 and 83 of
the CrPC by the learned trial court in mechanical and routine
manner and observed that the power under Sections 82 and 83
are very drastic in nature and must only be used by applying
judicial mind and on reasonable basis.
09. Learned senior counsel next referred to the
case of Usha Mishra Vs. State of Bihar, 2007(3) PLJR 748,
wherein the learned Single Judge held that the judicial process
cannot be converted into an aid of investigation or a force
multiplier for executive excess.
10. Learned senior counsel referred to Section 82
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CrPC to stress that the court failed to record its reasoning to
believe that the petitioners were absconded or concealing
themselves and precondition of issuance of warrant was not met
and warrant was issued then only proclamation under Section 82
CrPC. Further, the learned trial court did not consider at all the
proviso to Section 83 CrPC that at the time of issuance of
proclamation, the court is satisfied by affidavit or otherwise that
the person in relation to whom the proclamation is to be issued
was about to dispose of the whole or any part of his property or
was about to remove the whole or any part of his property from
the local jurisdiction of the Court, then only any order for
attachment could simultaneously be issued with the
proclamation. Thus, learned senior submitted that the impugned
orders are completely perverse and cannot be sustained on
record.
11. Learned senior counsel, thereafter, submitted
that the settled common law maxim Sublato fundamento cadit
opus provides that if the foundational order/action is illegal,
void or non-existent, all subsequent or consequential actions
built upon it automatically collapse. In the present case, the
requisitions of the I.O. dated 31.03.2021 and 06.04.2021,
respectively were illegal and in violation of law and procedural
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due process, hence all the subsequently actions would already
fall having no independent legal existence and the further order
of the learned trial court issuing the proclamation under
Sections 82 and 83 CrPC becomes unconstitutional. Learned
senior counsel relied on the case of State of Punjab Vs.
Davindere Pal Singh Bhullar, (2011) 14 SCC 770, wherein the
Hon’ble Supreme Court held that if the initial order is bad then
all the subsequent and consequential proceedings would suffer
from illegality as it strikes at the very root of the fundamental
order.
12. Learned senior counsel next submitted that the
petitioners were put to extreme hardship by the illegal
requisition made by the police authority and thereafter, by the
illegal orders passed by the learned trial court and therefore,
they are entitled for compensation. The attachment of the
petitioners’ residential premises, damage to property and
removal of household articles resulted in loss of shelter, dignity
and social standing constituting a direction invasion of Articles
14 and 21 of the Constitution. Mr. Ojha further submitted that
the Hon’ble Supreme Court has consistently held that where a
person is prejudiced by illegal or arbitrary action of the police or
judicial authority resulting in violation of Article 21 of the
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Constitution, monetary compensation is an appropriate and
effective remedy in public law, forming an integral part of
constitutional justice under Articles 32 and 226 of the
Constitution. On this aspect of the matter, the learned senior
counsel referred to the case of Rudul Sah Vs. State of Bihar,
(1983) 4 SCC 141, wherein the Hon’ble Supreme Court held
that compensation is an appropriate, necessary and effective
remedy for violation of Article 21 and further observed that the
right to compensation is some palliative for the unlawful acts of
instrumentalities of the State. In the case of Nilabati Behera Vs.
State of Odisha, (1993) 2 SCC 746, the Hon’ble Supreme Court
held that award of compensation in a proceeding under Article
32 or 226 is a remedy available in public law, based on strict
liability for contravention of fundamental rights.
13. Mr. Ojha thus submitted that the composite
police requisitions and consequential judicial orders impugned
herein be declared wholly arbitrary and illegal and in violation
of procedure established by law and appropriate action and
departmental proceeding be initiated against the police officials
who violated the right of the petitioners by abusing such drastic
power given to the police authority. Mr. Ojha further submitted
that just and reasonable compensation be awarded to the
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petitioners for violation of their fundamental rights.
14. Lastly, Mr. Ojha submitted that the directions
be issued for judicial sensitization and training to the learned
Judicial Officers of the Bihar regarding procedural due process
and interface with the prevailing law with respect to invocation
of Sections 82 and 83 CrPC/84 and 85 BNSS and judicial
adjudication.
15. Learned counsel appearing on behalf of State-
respondents at the outset submitted that the present writ
petitions are not maintainable as judicial orders have been
challenged by filing the writ petitions. Moreover, the relief
sought by the petitioners have become infructuous after arrest of
the petitioners and the orders dated 01.04.2021 and 06.04.2021
have lost their efficacy. The petitioners have also been enlarged
on bail. Learned counsel denied the contention made on behalf
of the petitioners that police has not properly investigated the
matter and submitted that after thorough investigation charge
sheet and supplementary charge sheet have been filed and the
case was found true against the petitioners and others. However,
learned counsel conceded that the requisition made by the I.O. is
not supported by affidavit or reasons or by any evidence.
Learned counsel further admitted that the impugned orders are
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not in accordance with the procedure prescribed by the law.
However, he submitted that it is one of the rarest of rare cases
and circumstances were of such nature that passing of the
impugned orders became necessary as it was a case of murder of
five persons of a village and situation has escalated and the
situation could be contained only after passing of the impugned
orders.
16. Learned senior counsel appearing on behalf of
the petitioners by way of reply submitted that he does not press
for quashing of the impugned orders in the light of subsequent
development but would still pray this Court to pass appropriate
orders for grant of compensation to the petitioners and
sensitization of the Judicial Officers and referred to
interlocutory applications filed in this regard.
17. I have given my thoughtful consideration to
the rival submission of the parties. I find merit in the submission
of learned counsel for the State-respondents that the impugned
orders could not be assailed in the present writ petitions. The
Hon’ble Supreme Court in the case of Neeta Singh & Ors. Vs.
State of Uttar Pradesh & Ors., 2024 SCC OnLine SC 5761 and
Pradnya Pranjal Kulkarni Vs. State of Maharashtra & Anr.,
2025 SCC OnLine SC 1948, has held that against a judicial
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order no writ petition is maintainable under Article 226 of the
Constitution of India. Subsequent development also show the
writ petition on this point of challenge to the orders of learned
ACJM-I, Benipatti has become infructuous.
18. If the petitioners did not press their relief
regarding challenge to the orders of learned ACJM-I, Benipatti
of simultaneously issuing warrant under Section 73,
proclamation under Section 82 and order of attachment under
Section 83 of CrPC, the whole discussion about legality of the
impugned orders would now be only for academic purposes. If
this Court could not consider the challenge to the judicial order
in the writ petition, any further action based on such
consideration would not be proper. Precisely for this reason, the
claim of compensation by the petitioners need not be considered
by this Court as such right would flow only on account of any
finding recorded by the Court on the basis of impugned orders.
19. Moreover, in any case grant of compensation
would be an ancillary relief and if the main relief goes, there
would be no scope for grant of any ancillary relief. Further,
under the Criminal Writ Jurisdiction, claim of compensation
could not be assessed or considered. However, the petitioners
are always at liberty to have recourse of law in appropriate
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proceeding for enforcement of their right or for compensation
for violation of their rights.
20. But, at the same time, the Court would like to
take note of the irregularity committed by the learned trial court
in passing the impugned orders dated 06.04.2021 and
01.04.2021. After going through the impugned orders, I must
record my disappointment about the competence of the judicial
officer passing such orders. Though, this Court is not supposed to
look into the illegality or validity of the judicial orders under its
writ jurisdiction under Article 226 of the Constitution of India,
still, the sheer illegality of the orders stare on the face of record.
21. Time and again the Hon’ble Supreme Court has
held that warrant of arrest cannot be issued on asking of the
police authority. Such warrant can be issued only to ensure
presence of the accused before the court and it cannot be in aid
of police investigation or to make such person join the
investigation. Paragraph 24 of the case of Dawood Ibrahim
Kaskar (supra) reads as under:-
“Now that we have found that Section 73 of
the Code is of general application and that
in course of the investigation a Court can
issue a warrant in exercise of power
thereunder to apprehend, inter alia, a person
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who is accused of a non-bailable offence and
is evading arrest, we need answer the related
question as to whether such issuance of
warrant can be for his production before the
police in aid of investigation. It cannot be
gainsaid that a Magistrate plays, not
infrequently, a role during investigation, in
that, on the prayer of the Investigating
Agency he holds a test identification parade,
records the confession of an accused or the
statement of a witness, or takes or witnesses
the taking of specimen handwritings etc.
However, in performing such or similar
functions the Magistrate does not exercise
judicial discretion like while dealing with an
accused of a non-bailable offence who is
produced before him pursuant to a warrant
of arrest issued under Section 73. On such
production, the Court may either release him
on bail under Section 439 or authorise his
detention in custody (either police or
judicial) under Section 167 of the Code.
Whether the Magistrate, on being moved by
the Investigating Agency, will entertain its
prayer for police custody will be at his sole
discretion which has to be judicially
exercised in accordance with Section 167 (3)
of the Code. Since warrant is and can be
issued for appearance before the Court only
and not before the police and since
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authorisation for detention in police custody
is neither to be given as a matter of course
nor on the mere asking of the police, but
only after exercise of judicial discretion
based on materials placed before him, Mr.
Desai was not absolutely right in his
submission that warrant of arrest under
Section 73 of the Code could be issued by
the Court solely for the production of the
accused before the police in aid of
investigation."
Similarly, in Usha Mishra (supra) the learned
Single Judge of this Court has quoted the observation made in
the case of Nalini Kant Agrawal (supra), wherein it has been
held that though the court has power under Section 73 CrPC to
issue warrant, it is only for the purposes of securing appearance
before the court and not before the police. The power to secure
warrant or issue warrant of arrest under Section 73 CrPC cannot
be used solely for production of accused before the police in aid
of investigation. It has been further held that while issuing
warrant under Section 73 CrPC the Magistrate has to record
finding that the accused persons were evading their arrest and
this finding would depend on appreciation of facts pleaded in
that regard and not on any ipse dixit of the investigating officer.
If that is not done then Section 82 and/or Section 83 CrPC
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would not come into play and would be illegal exercise of
jurisdiction.
22. Similarly, precondition of issuance of
proclamation under Section 82 of the CrPC were not met and
the learned trial court did not consider this aspect for a moment
that the police did not make any effort to apprehend the accused
persons and failed to show before the learned Magistrate that the
petitioners were evading arrest. If the police authorities failed to
show the valid reasons for issuance of warrant, the court cannot
pass any order on the application of police authority seeking
proclamation under Section 82 of the CrPC. Thereafter, a
proclamation issued under Section 82 of the CrPC has also to
satisfy the condition that the court publishing the proclamation
required the accused to appear at a specified place and specified
time not less than 30 days from the date of publishing such
proclamation. But no such steps have been taken. Thereafter, the
proviso to Section 83 of the CrPC regarding apprehension of
disposal of the property by the petitioners was not satisfied for
simultaneous issuance of proclamation and order of attachment.
It is also pertinent to take note of that if the statute provides for
doing a thing in certain manner, it is to be done in that manner
only or not all at all and reliance could be placed at the case of
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Davinder Pal Singh Bhullar (supra), wherein paragraph 107
the Hon’ble Supreme Court held as under:-
“It is a settled legal proposition that if initial
action is not in consonance with law, all
subsequent and consequential proceedings
would fall through for the reason that
illegality strikes at the root of the order. In
such a fact situation, the legal maxim
"Sublato fundamento cadit opus" meaning
thereby that foundation being removed,
structure/work falls, comes into play and
applies on all scores in the present case."
23. This Court has showed its anguish and
disappointment with the working of the learned trial court which
passed the simultaneous order for issuance of warrant,
proclamation and attachment under Sections 73, 82 and 83 of
the CrPC, respectively in a composite manner, and thus comes
to finding that passing orders in such manner is bad in the eyes
of law. However, considering the fact that it was a case in which
five murders had been committed and this fact might have
weighed upon the mind of the learned trial court while passing
the orders, this Court would like to give the matter quietus and
would refrain from recording any further observation.
24. Accordingly, both the writ petitions stand
Patna High Court CR. WJC No.374 of 2022 dt.30-03-2026
22/22
disposed of.
25. Pending interlocutory applications are also
disposed of.
(Arun Kumar Jha, J)
DKS/-
AFR/NAFR AFR
CAV DATE 16.01.2026
Uploading Date 30.03.2026
Transmission Date 30.03.2026
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