Back
1998 Supreme(All) 439
HIGH COURT OF ALLAHABAD
S.K.Phaujdar, J.C.Mishra
NASIMUDDIN SIDDIQUI
Versus
STATE OF U P
Decided On : 17 April 1998
Criminal Misc. Writ Petition No. 1175 of 1998
S.M.A.Kazmi,
The execution of an attachment warrant beyond the jurisdiction of the issuing court without the endorsement of the District Magistrate is illegal and can be challenged through a writ petition.
Headnote:
JURISDICTION - ATTACHMENT OF PROPERTY - SECTION 83, CR. P. C. - ILLEGAL EXECUTION OF ATTACHMENT WARRANT - JURISDICTION OF EXECUTING OFFICER - WRIT PETITION - MAINTAINABILITY.
Fact of the Case:
The petitioner, a former MLA and Minister in the Uttar Pradesh Cabinet, filed a writ petition challenging the FIR against him, seeking protection from arrest, transfer of investigation to the CBI, and release of his properties attached under Section 83, Cr. P. C. The FIR was lodged in Lucknow, and the attachment was carried out in Banda.
Finding of the Court:
The court held that the writ petition was not maintainable for prayers related to the FIR, protection from arrest, and transfer of investigation, as the cause of action arose within the jurisdiction of the Lucknow Bench of the High Court. However, the court found that the attachment of properties in Banda was illegal due to the lack of endorsement by the District Magistrate as required under Section 83(2), Cr. P. C.
Issues: 1. Whether the writ petition was maintainable before the Allahabad Bench of the High Court for prayers related to the FIR, protection from arrest, and transfer of investigation, considering that the cause of action arose within the jurisdiction of the Lucknow Bench? 2. Whether the attachment of properties in Banda was illegal due to the lack of endorsement by the District Magistrate as required under Section 83(2), Cr. P. C.
Ratio Decidendi: 1. The court distinguished between a cause of action and its consequence, holding that a consequence of an FIR (such as the attachment of properties) may not be a part of the cause of action connected with the lodging of the FIR. Therefore, the court held that the writ petition was not maintainable before the Allahabad Bench for prayers related to the FIR, protection from arrest, and transfer of investigation, as the cause of action arose within the jurisdiction of the Lucknow Bench. 2. The court interpreted Section 83(2), Cr. P. C., and held that the attachment warrant issued by the Sessions Judge, Lucknow, could not have been executed in the district of Banda without the endorsement of the District Magistrate. The court found that there was no such endorsement, and therefore, the attachment of properties in Banda was illegal.
Final Decision: The court partly allowed the writ petition, quashing the attachment of properties in Banda. However, the court clarified that this order would not prevent the issuance of a proper execution order under Section 83, Cr. P. C., or its endorsement by the District Magistrate, as required by law.
2. On 2-4-1998 itself, after the aforesaid order was passed, Sri Mahendra Pratap, learned A. G. A, made submissions before us touching the jurisdictional point as also the maintainability of the petition. We, thus, directed the matter to come up on 3-4-1998 subject to information to Sri S. M. A. Kazmi, learned Counsel for the petitioner. The matter could be finally heard, on the question of jurisdiction and maintainability of the prayers, on 13-4-1998.
3. The petitioner, Nasim Uddin Sid-diqui, claimed to be an erstwhile Member of the Legislative Assembly of Uttar Pradesh and for certain period he held the post of a Minister in the Cabinet of Ms, Mayawati. He claims to be a sitting Mem ber of the Legislative Council at present. He sought for quashing the F. I. R. in the aforementioned case on the ground of mala fide. He also prayed for a protection against arrest in the said case. There was a further prayer that investigation of the case be made over to C. B. C. I. D. for an impartial and independent investigation. There was yet another prayer that the properties of the petitioner at Banda, at tached under an arbitrary order purport ing to be under Section 83, Cr. PC. , be released forthwith.
4. The learned A. G. A. submitted that the incident for which the F. I. R. was lodged took place within the jurisdiction of the Lucknow Bench of this High Court and the order under Section 83, Cr. PC. was passed
by the District and Sessions Judge, Lucknow, and the petition was not at all maintainable at Allahabad. It was further stated that there had also been an order under Section 82, Cr. P. C. issuing a proclamation against the petitioner depicting him as an absconder and this order was challenged in an application under Section 482, Cr. P. C. before the Lucknow Bench, which is pending.
5. In reply to these preliminary objec tions in was contended by Sri Kazmi that the filing of the application under Section 482, Cr. P. C. against the order of issuing a proclamation under Section 82, Cr, P. C. would not bar the present writ petition as no earlier writ petition was filed before the Allahabad High Court (including the Lucknow Bench) for the reliefs. It was further contended that the warrant of at tachment issued under Section 83, Cr. P. C. by the Sessions Judge, Lucknow, could have been executed within his territorial jurisdiction, but for its execution outside such jurisdiction the endorsement of the District Magistrate of the concerned dis trict (in the instant case of the district of Banda) was necessary. On this point, the learned A. G. A. was directed and he had produced -before us a copy of the attach ment warrant. On fact we find that no endorsement of the District Magistrate was there nor was there any indication of the properties (movable or immovable) which were to be attached pursuant to the attachment warrant. It was argued by Sri Kazmi that the execution of the attach ment warrant beyond the jurisdiction of the Sessions Judge, Lucknow, was a patent illegality touching the jurisdiction of Ex ecuting Officer and as such a case of action certainly arose to the petitioner to chal lenge the attachment of properties at Banda through a writ petition.
6. In reply to this the learned A. G. A. drew our attention to Section 465 and 466, Cr. P. C. to show that no irregularity or illegality in the attachment would vitiate
