Without cognizance magistrate issued order u/s 83 of cr.p.c and attachment was done!!
Md Shadab Ansari
(Querist) 15 December 2011
This query is : Resolved
Accused "A" was not named in FIR, his name came in confessional statement of "B" a Co-Accused.Charge sheet was filled against "B".Later on Police prayed for the arrest warrant for "A" after that a prayer for the proceeding 82 and 83 of Cr.P.C was also made and was granted.My question is Without Cognizance Magistrate Issued order u/s 83 of Cr.P.C and attachment was done!!Here what action we can take against the Magistrate...Judiciary is playing the role of prosecution...there are several instances where the partisan face of Judiciary came out..
In my 2 years of practice I have observed that Lower judiciary has become the part of the prosecution.It blindly agree with the prayers of the prosecution...
In another instance police arrested owner and the driver of a vehicle u/s 414.The seizure list didnt bear the signature of the accused...In this case Magistrate rejected the bail and in session court today was hearing the judge asked for criminal antecedent of the accused from police and fixed the date on 3 Jan for hearing...
In another case the magistrate sent the accused to other district for the trial of a different case after that he issued arrest warrants against the witnesses and when they appeared in the court the magistrate was not ready to stay the arrest warrant..after a very fierce argument he agreed.
In another case there was a maximum penalty Rs 500 for the offence. we filed a petition to plead the guilt(Not on the date)the magistrate told he would not entertain the petition as it was not filed on date and taken the accused in custody.then we filed bail application which was granted but the surety fixed was 10000*2.
There is lots of hole in judiciary but no one dares to bell the cat...
I asked the learned members what can be done and how we can improve the situation.??
Devajyoti Barman
(Expert) 15 December 2011
Rightly or wrongly the judiciary pass judicial orders exercising its judicious discretion.
If someone is aggrieved he can challenge the order in the higher court but merely because some iRregularity in the procedure of Police in making investigation, the prosecution as a whole does not suffer.
You Being relatively a new entrant in this profession may know that only those proceedings are vitiated due ti irregularity which are mentioned in Chapter-XXXV of CRPC.
Nadeem Qureshi
(Expert) 15 December 2011
Mohd. Sadab ansari Sahab
83. Attachment of property of person absconding.
(1) The court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person:
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 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.
(2) Such order shall authorize the attachment of any property belonging to such person within the district in which it is made; and it shall authorize the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate.
(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-
(a) By seizure; or
(b) By the appointment of a receiver; or
(c) By an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or
(d) By all or any two of such methods, as the court thinks fit.
(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the collector of' the district in which the land is situate, and in all other cases-
(a) By taking possessions or
(b) By the appointment of' a receiver; or
(c) By an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to any one on his behalf: of
(d) By all or any two of such methods, as the Court thinks fit.
(5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the court.
(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908).
Shonee Kapoor
(Expert) 15 December 2011
You can go for revision.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
DEFENSE ADVOCATE.-firmaction@g
(Expert) 15 December 2011
