The main legal point established in the judgment is that the issuance of process under Section 82 of the Cr.P.C. does not automatically preclude the consideration of an anticipatory bail application, especially when the accused are not proclaimed offenders.

It appears that the petitioners in the present case are facing prosecution in Industrial Area Police Station, Hazipur Case No. 01/2017 registered under Section 363, 364, 34 of the Indian Penal Code, later on Section 302/120-B of the Indian Penal Code was added. Immediately after registration of F.I.R. police obtained non-bailable warrant against them and on failing to arrest the petitioners the Investigating Officer made an application before the concerned Magistrate to issue process under Section 82 for attachment of the assets of the petitioners.

2. Learned counsel for the petitioners submits that the police officer had moved for issuance of process under Section 82 of the Cr.P.C. only within the period of three days from the date of obtaining the non-bailable warrant from the court. According to him no step whatsoever was taken by the police to arrest the petitioners during these three days period.

3. Be that as it may, the fact of the case would reveal that after the process was issued under Section 82 of the Code these petitioners approached this court by filing anticipatory bail application being Cr. Misc. No. 26275/2017 and Cr. Misc. No. 37864/2017. The records of these two cases are available with this court and a perusal thereof would show that vide order dated 21.07.2017 passed in Cr. Misc. No. 26275/2017, a learned co-ordinate Bench of this court while fixing the case on 24.07.2017 passed an interim order directing that “till then, no coercive step shall be taken against the petitioners and in connection with Industrial P.S. Case No. 01/2017...”. Later on, in course of hearing of criminal miscellaneous applications for anticipatory bail a question arose for consideration before the learned co-ordinate Bench at the instance of learned counsel representing the informant as to whether in the facts of the present case where process under Section 82 of the Code has already been issued the anticipatory bail application may be maintained by these petitioners.

4. In order to get rid of the objections raised on behalf of the informant the petitioners have filed this writ application with a prayer to issue a writ in the nature of certiorari to quash the impugned order dated 06.01.2017 and 24.01.2017 passed by learned Smt. Smita Raj, 1st Class Judicial Magistrate, Vaishali as contained in Annexure-2 and 3 to the present petition, whereby warrant of arrest and process of attachment respectively were issued against the petitioners.

5. Both the parties have made elaborate argument before this court. Learned counsel for the petitioners and the informant are however unanimous as to the stage of the present proceeding where the process under Section 82 has only been issued. In course of argument, it has emerged as an admitted position that till date these petitioners have not been declared proclaimed offenders in terms of section 83 of the Code.

6. Learned counsel for the informant has however attempted to impress upon this court relying upon the judgment in the case of Kamakhya Narayan Singh Vs. State of Bihar and another reported in 2017 (4) PLJR 576; wherein this court has upon taking note of the constitution bench judgment of Hon’ble Supreme Court in the case of Gurbaksh Singh Sibbia vs. State of Punjab reported in (1980) 2 SCC 585 and another judgment in the case of Lavesh Vs. State (NCT of Delhi), reported in 2012 (4) East Cr C 146 (SC) : (2012) 8 SCC 730; as also the judgment of the Hon’ble Jharkhand High Court in the case of Sheikh Anwar @ Sk. Anwar vs. State of Jharkhand since reported in 2015 (1) East Cr C 145 (Jhr) : 2014 (4) JLJR 128; took a view that the anticipatory bail application preferred by the petitioners in the said case would not be fit to be entertained once process under Section 82 and 83 of the Cr.P.C. have been issued by the learned Magistrate.

7. Learned counsel for the petitioners has relied upon a judgment of the Hon’ble Delhi High Court in the case of Deepak Kumar @ Deepak Saha Vs. State in Crl. MC