Kerala High Court
Moideen vs The Sub Inspector Of Police on 13 August, 2010
  IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1015 of 2004(B)
1. MOIDEEN S/O.AHAMMEDKUTTY,
                      ...  Petitioner
                        Vs
1. THE SUB INSPECTOR OF POLICE,
                       ...       Respondent
2. STATE OF KERALA, REP. BY THE
                For Petitioner  :SRI.T.G.RAJENDRAN
                For Respondent  :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
 Dated :13/08/2010
 O R D E R
                                             "C.R."
             M.Sasidharan Nambiar, J.
            --------------------------
              Crl.R.P.No.1015 of 2004
            --------------------------
                     ORDER
Can an absconding accused, whose property is attached under Section 83 of Code of Criminal
Procedure, file an application, after the expiry of two years from the date of attachment, to release
the property as provided under Section 85 of Code of Criminal Procedure, is the question to be
settled in this revision.
2. The facts are not disputed. Petitioner was the sixth accused in C.C.No.129/1989 on the file of
Judicial First Class Magistrate's Court-I, Kozhikode. As he was absconding and his presence could
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not be procured and disposal of the case against the other accused was delayed unnecessarily,
learned Magistrate split up the case as against the sixth accused and re-filed it as C.C.No.283/1990.
The case as against the remaining accused were proceeded and as per judgment dated 30.1.1993,
those accused were acquitted of all the offences. As the presence of the petitioner could not be
procured, in spite of coercive steps, C.C.No. 283/1990 was subsequently included in the long
pending register, as provided under Rule 16 of Criminal Rules of Practice, after complying with the
procedure provided under Sections 82 and 83 of Code of Criminal Procedure, as L.P.No.43/1994.
While so, petitioner surrendered on 29.5.2000 before the Magistrate and consequently, L.P.No.
43/1994 was re-filed as C.C.No.113/2000. Petitioner was released on bail. While the case as against
the petitioner was being tried, on 31.7.2000, he filed C.M.P.No.3969/2000 under sub-section (3) of
Section 85 of Code of Criminal Procedure to release the property attached under Section 83 of Code
of Criminal Procedure. Petitioner, in the petition, contended that his properties were attached under
Section 83 of Code of Criminal Procedure and he appeared before the court on 29.5.2000 and was
released on bail and therefore, the attached property is to be released. Learned Magistrate, as per
order dated 31.7.2000, dismissed the petition. Petitioner challenged that order before Sessions
Court along with an application to condone the delay. That application was dismissed and
consequently, the appeal was also dismissed. It was challenged before this Court in Crl.R.P.No.
1080/2002. This Court set aside the order dismissing the application for condonation of delay and
directed the Sessions Court to dispose the appeal on merit. Learned Sessions Judge, as per
impugned judgment dated 23.9.2003, dismissed the appeal confirming the order passed by the
Magistrate. It is challenged in this revision.
3. Learned counsel appearing for the petitioner argued that Sections 83 to 85 of Code of Criminal
Procedure do not provide that the property attached under Section 83 of Code of Criminal
Procedure would vest with the Government and sub-section (3) of Section 85 of Code of Criminal
Procedure provides that even if the property attached was sold, the absconding accused is entitled to
file an application to release the same and the purpose of attachment is not to punish an accused or
to deny his rights in his property, but, only to secure the presence of the accused for trial and once
the absconding accused surrendered before the court, the property is to be released to him. It was
pointed out that the property was not sold by the Government and is still in the possession of the
Government and therefore, petitioner is entitled to get the property released and dismissal of the
petition is illegal.
4. Learned Public Prosecutor submitted that the property was attached as petitioner absconded and
proclamation was issued under Section 82 of Code of Criminal Procedure and petitioner did not
appear within the period mentioned in the proclamation and though an absconding accused, on his
surrender or production before the court, is entitled to get the property released, it can only be as
provided under sub-section (3) of Section 85 of Code of Criminal Procedure and such an accused has
to establish that he did not abscond and he was unaware of the proclamation and such an
application shall be filed within a period of two years from the date of attachment and as it was not
filed within the period, the petition can only be dismissed as has been done by the courts below.
5. Section 83 of Code of Criminal Procedure provides for attachment of the property of an
absconding accused. Section 82 of Code of Criminal Procedure provides for proclamation for person
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absconding. Under sub-section (1) of Section 82, if any court has reason to believe (whether after
taking evidence or not) that any person, against whom a warrant has been issued by it, has
absconded or is concealing himself so that such warrant cannot be executed, such court may publish
a written proclamation requiring him to appear at a specific place and at a specified time not less
than thirty days from the date of publishing such proclamation. Sub-section (1) of Section 83 of
Code of Criminal Procedure provides that 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
attachment of any property, movable or immovable or both, belonging to the proclaimed person. It
also provides that where, at the time of the issue of the proclamation, the court is satisfied that the
person, in relation to whom the proclamation is to be issued, is about to dispose of the whole or any
part of his property or is about to remove the whole or any part of his property from the local
jurisdiction of the court, it may order attachment simultaneously with the issue of the proclamation.
Under sub-section (2), such order shall authorise the attachment of any property belonging to such
person within the district in which it is made and it shall authorise the attachment of any property
belonging to such person without such district when endorsed by the District Magistrate within
whose district such property is situated. Sub-section (3) provides that if the property ordered to be
attached is a debt or other movable property, attachment shall be as provided therein. Sub- section
(4) provides that if the property ordered to be attached is immovable, the attachment, under the
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 situated and in all other cases, it shall be as provided
under clauses (a) to (d).
6. Section 84 of Code of Criminal Procedure provides for claims and objections to attachment.
Under sub-section (1), if any claim is preferred to or objection made to the attachment of, any
property attached under Section 83, by any person other than the proclaimed person, within six
months from the date of such attachment, on the ground that claimant or objector has an interest in
such property and that such interest is not liable to attachment under Section 83, the claim or
objection shall be inquired into and may be allowed or disallowed in whole or in part. Under
sub-section (4), any such person may institute a suit to establish the right, which he claims in
respect of the property in dispute, within a period of one year from the date of such order, but,
subject to the result of such suit, the order shall be conclusive.
7. Section 85 of Code of Criminal Procedure relates to release, sale and restoration of the property
attached. Section 85 reads:
85. Release, sale and restoration of attached property - (1) If the proclaimed person
appears within the time specified in the proclamation, the court shall make an order
releasing the property from the attachment.
(2) If the proclaimed person does not appear within the time specified in the
proclamation, the property under the attachment shall be at the disposal of the State
Government, but it shall not be sold until the expiration of six months from the date
of the attachment and until any claim preferred or objection made under Section 84
has been disposed of under that section, unless it is subject to speedy and natural
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decay or the court considered that the sale would be for the benefit of the owner, in
either of which cases the court may cause it to be sold whenever it thinks fit.
(3) If, withing two years from the date of the attachment, any person whose property
is or has been at the disposal of the State Government, under sub-section (2), appears
voluntarily or is apprehended and brought before the court by whose order the
property was attached, or the court to which such court is subordinate, and proves to
the satisfaction of such court that he did not abscond or conceal himself for the
purpose of avoiding execution of the warrant and that he had not such notice of the
proclamation as to enable him to attend within the time specified therein such
property or if the same has been sold, the net proceeds or the sale or if part only
thereof has been sold, the net proceeds of the sale and the residue of the property,
shall, after satisfying therefrom all costs incurred in consequence of the attachment,
be delivered to him.
8. On a reading of Sections 82 to 85 of Code of Criminal Procedure, it is clear that the intention of
providing for attachment of the property under Section 83 of Code of Criminal Procedure is to
compel an absconding accused or a person who is concealing himself from being arrested in
execution of a warrant to appear before the court. When an accused is absconding and the court,
under Section 82, issues a proclamation and along with the proclamation or thereafter orders
attachment of the property under Section 83, Section 84 enables a third person to file a claim
petition or an objection to the attachment. The right to file a claim petition or an objection under
Section 84 of Code of Criminal Procedure is not available to an absconding accused. It is only "by
any person other than the proclaimed person". If such an application is dismissed after conducting
an inquiry, sub- section (4) enables that person to institute a suit before a civil court to establish his
right which he claimed in respect of the property in dispute and that too, within a period of one year
from the date of such order. But, the right provided under Section 84(4) also cannot be availed of by
an absconding accused.
9. Sub-section (1) of Section 85 of Code of Criminal Procedure enables an absconding accused to get
the property attached under Section 83 released on his appearance by filing an application. If such
an application is filed "within the time specified in the proclamation issued under Section 82" the
court shall make an order releasing the property from the attachment. In such a case, no inquiry is
contemplated to find out whether the accused was absconding or whether he was concealing himself
from being arrested in execution of a warrant issued by the court. As a matter of right, an
absconding accused is entitled to get the property released on his appearance within the time
specified in the proclamation.
10. Sub-section (2) of Section 85 of Code of Criminal Procedure provides that if the proclaimed
person does not appear within the time specified in the proclamation, the property under the
attachment shall be at the disposal of the State Government. It also provides that the property,
though at the disposal of the State Government, shall not be sold until the expiration of six months
from the date of the attachment, evidently because, any other person, other than the proclaimed
person, is entitled to file a claim petition or an objection as provided under Section 84 within a
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period of six months from the date of the attachment. It also provides that if any such claim petition
or objection has been preferred or made as provided under Section 84, the property, which is at the
disposal of the State Government, shall not be disposed till the objection or the claim has been
disposed by the court, unless the property is subject to speedy and natural decay and the court
considers that sale would be for the benefit of its owner. It provides that in such a case, the court
may sell the same whenever it thinks fit.
11. Sub-section (3) of Section 85 of Code of Criminal Procedure enables an absconding accused to
apply for releasing the property attached after the period specified in the proclamation, but, within a
period of two years from the date of the attachment. It provides that any person, whose property is
or has been at the disposal of the State Government as provided under Section 83, appears
voluntarily or is apprehended and brought before the court by whose order the property was
attached, may apply to release the property from attachment. But, such an application is to be filed
within a period of two years from the date of the attachment. Even if an application is made under
sub-section (3) within the period of two years from the date of the attachment, an absconding
accused is not entitled to get the property released, unless he satisfies the court the two other
mandatory conditions. The first condition is that such an absconding accused must prove to the
satisfaction of the court that he did not abscond or conceal himself for the purpose of avoiding
execution of the warrant. The second condition is that such an absconding accused has to further
prove to the satisfaction of the court that he had no notice of the proclamation so as to enable him to
attend the court within the time specified therein. If these two conditions are satisfied and the
application is filed within a period of two years from the date of attachment, the court shall release
the property to him and if the property, in whole or part was sold, the net proceeds of the sale and
the residue of the property shall be delivered to him, less the expenses incurred in consequence of
the attachment. Therefore, the right available to an absconding accused under sub- section (3) of
Section 85 of Code of Criminal Procedure is limited. First of all, the application shall be filed within
a period of two years from the date of attachment. Secondly, he must satisfy the two conditions,
namely, he did not abscond or conceal himself for the purpose of avoiding execution of the warrant
and also that he had no notice of the proclamation issued under Section 82 of Code of Criminal
Procedure so as to enable him to attend the court within the time specified in the proclamation.
12. True, Sections 83 and 85 of Code of Criminal Procedure do not specifically provide that the
property attached under Section 83 vests with the Government. But, a reading of Section 85, makes
it clear that once the property is attached under Section 83, the property, so attached, shall be at the
disposal of the State Government, subject to the provisions of sub-sections (1) to (3) of Section 85 of
Code of Criminal Procedure.
13. The question is what is the meaning of "shall be at the disposal of the State Government". It only
means that the property shall vest with the Government so as to enable the State to deal with the
property at the wishes of the State Government. True, the rights so vested in the Government could
only be the right, which was available with the absconding accused on the date of attachment under
Section 83. No superior right could be claimed by the Government over that property based on the
attachment under Section 83. As stated earlier, even though by an order passed under Section 83,
attaching the property of the absconding accused, the property so attached is at the disposal of the
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State Government, if the absconding accused is arrested or surrenders before the court within the
time specified in the proclamation, in spite of the fact that the property is at the disposal of the State
Government, the property shall be released to the absconding accused. Therefore, the right over the
property, which vested in the Government by attachment, is subject to the right of the absconding
accused to get it released on his appearance within the time specified in the proclamation. As is clear
from sub-section (2) of Section 85, even though the property is at the disposal of the Statement
Government from the date of attachment, it cannot be sold by the Government within a period of six
months from the date of attachment, as any person other than the absconding accused is granted a
right to prefer a claim or objection under Section 84 within that period. So also, even though the
property is at the disposal of the State Government, it will be subject to the right of the absconding
accused to get it released within a period of two years from the date of attachment as provided under
sub-section (3). The absconding accused is entitled to get it released on filing an application and
satisfying the conditions provided under sub-section (3). If no such application is filed within the
period of two years and even if an application is filed and dismissed on the failure of the absconding
accused to satisfy any of the two conditions provided thereunder, the property, which is already at
the disposal of the State Government, shall vest absolutely with the Government subject to any other
right available to the accused to approach the civil court. It may be that an independent suit may lie
on the ground that there was no order of attachment under Section 83, as the formalities provided
therein were not complied with and therefore, the property did not vest in the Government on the
expiry of two years as provided under Section 85 of Code of Criminal Procedure. But, the right to get
the property by approaching the court, which ordered the attachment as provided under sub-section
(3) of Section 85, will not be available to an absconding accused after the expiry of two years from
the date of attachment.
14. Though learned counsel appearing for the petitioner relied on the decision of the Apex Court in
Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel ((2008) 4 SCC 649) and argued that Section
82 was enacted only to secure the presence of an absconding accused and once the accused
surrendered before the court, the property shall be released to him and the right to get the property
released is subject to the provisions of the Code, including sub-section (3) of Section 85 of Code of
Criminal Procedure. The relevant portion of the decision reads:
The provisions contained in Section 82 of the Code of Criminal Procedure were put
on the statute book for certain purpose. It was enacted to secure the presence of the
accused. once the said purpose is achieved, the attachment shall be withdrawn. Even
the property which was attached, should be restored. The provisions of the Code of
Criminal procedure do not warrant sale of the property despite the fact that the
absconding accused had surrendered and obtained bail. Once he surrenders before
the court and the standing warrants are cancelled, he is no longer an absconder. The
purpose of attaching the property comes to an end. It is to be released subject to the
provisions of the Code. Securing the attendance of an absconding accused is a matter
between the State and the accused. The complainant should not ordinarily derive any
benefit therefrom. If the property is to be sold, it vests with the State subject to any
other passed under Section 85 of the Code. It cannot be a subject-matter of execution
of a decree, far less for executing the decree of a third party, who had no right, title or
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interest thereon.
(emphasis supplied).
The Honourable Supreme Court only held that on the accused surrendering before the court, the
standing warrant shall be cancelled and he is no longer an absconder and as there is no further need
of attaching the property, it is to be released. But, it was made clear that such release shall be subject
to the provisions of the Code. Section 85 provides for release of the property after the absconding
accused appears and files an application within a period of two years from the date of attachment
and not after the expiry of the two years.
15. A learned single Judge of the Bombay High Court in Secretary of State v. Ahalyabhai Narayan
Kulkarni (AIR 1938 Bombay 321) had considered the effect of Section 88 of Code of Criminal
Procedure, 1898 and held that if a person, claiming an interest over the property, prefers a claim
before the Magistrate and that claim is negatived, he can institute a suit to establish his right in a
civil court within one year from the date of the Magistrate's order and it does not mean that an
independent suit by that person is not maintainable. It was held that the object of the Legislature is
that although the property was to be at the disposal of the Government after it was attached, it was
not to be sold until the expiration of six months from the date of attachment or until the claim
preferred had been disposed of under that sub-section. If no objection was raised before the
Magistrate within six months from the date of the order of attachment or no stay is got from the civil
court after filing a suit, Government would be free to dispose of the property as they liked, by sale or
otherwise. It was then held:
After the Government took any such step, the party who claims interest in the
property may not perhaps be able to assert any right in the property. But, so long as
the property has not been sold by Government or otherwise disposed of and so long
as Government have continued to remain in possession of the attached property, it
would, I think, be open to any party claiming an interest in it to obtain a decree of a
civil court declaring his right in the property and if he succeeds in obtaining such a
decree before Government have finally disposed of the property, that decree would be
binding against Government and the property could be disposed of subject to the
rights established under such decree. It is stated in sub- section (6D) that the order of
attachment shall be conclusive subject to the result of a suit instituted by the person
aggrieved by the Magistrate's order. But that, in my opinion, does not mean that it is
not open to the interested party to obtain a decree declaring his rights before
Government have proceeded to sell the property. The provision in sub-section (7)
that the property shall not be sold until the claim preferred under sub-section (6-A)
has been disposed of, means that the sale is to be subject to the rights of any person
interested if such rights are established by a decree. If so, why should such rights be
not enforceable even if they are obtained by a decree without going before any
Magistrate under sub-section (6-A), so long as the property has not been sold by
Government. I, therefore, agree with the lower courts in holding that the suit is
maintainable in spite of the fact that the plaintiffs did not got to the Magistrate under
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sub-section (6-A) and that the decree would be binding on the Government.
16. Another single Judge of the Bombay High Court in Narayan Kondaji Temkar v. Govind Krishna
Abhyankar (AIR 1929 Bombay 200) considered the question whether the words "at the disposal of
the State Government" imply from the moment the absconding accused fails to appear or from the
date of attachment and held that the property would be at the disposal of the Government only from
the date of attachment and not from the date of the accused absconded.
17. A Division Bench of Punjab and Haryana High Court considered the question of right of heirs of
an absconding accused to institute a suit for restoration of the property in Daya Nand Kalu v. The
State of Haryana (AIR 1976 P & H 190). The Division Bench held:
The object of attaching the property of an absconder is not to punish him but to
compel his appearance. If the property has not been confiscated or disposed of, the
title therein continues to vest in the owner and thereafter in his heirs. In the instant
case, the property had admittedly been mutated in the name of the appellant and
even the learned single Judge has held that rights other than those of occupancy, viz.,
"the landlord's rights vest in the plaintiff". The finding that occupancy rights
continued despite the coming into force of the Act does not appear to be correct. All
such occupancy rights in Punjab as were held by the absconder ripened into
ownership on the coming into force of Section 3. Section 3 brought about an
improvement in the status of the title of the occupancy tenant and not of the receiver
or of anyone "at whose disposal" the property stood on that day as a result of
attachment. Title never ceases or gets transferred by attachment, but continues in the
original owner.
It was then held:
It is true that a civil suit for the land could not be filed by the absconder himself after
two years of attachment and otherwise then on the fulfilment of the two conditions
laid down in Section 839, but no such shackles are attached to the right of an heir of
the absconder after the latter's death. Such heir has o right to apply under Section 89.
The implied bar of Section 89 is only for such person who could have applied under
that provision. The present plaintiff could not have so done. The occupancy tenancy
(which had been attached) had ceased to exist as such. The title in the property
admittedly vested in the plaintiff. No provision of law barred the jurisdiction of the
civil court to try this suit for possession of his property.
No other decision has been pointed out on this point.
18. On a proper analysis of Sections 82 to 85 of Code of Criminal Procedure, it can only be found
that when a property is attached under Section 83 of Code of Criminal Procedure, the property shall
vest with the Government from the date of attachment, subject to the right of any person other than
the absconding accused as provided under Section 84, either to file a petition within a period of six
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months from the date of attachment or a suit on the rejection of the claim or objection and also
subject to the right of the absconding accused to get the property released within the period
specified in the proclamation by his appearance or within a period of two years from the date of
attachment on his surrender and establishing that he did not abscond or conceal himself and did not
receive any notice of proclamation so as to enable him to appear before the court within the period
specified in the proclamation. If the said period is over, an absconding accused is not entitled to file
an application to get the property released under sub- section (3) of Section 85 of Code of Criminal
Procedure. The question whether petitioner is entitled to approach the civil court is not to be settled
in this revision. It is also to be noted that in the application filed under sub-section (3) of Section 85
of Code of Criminal Procedure, petitioner has not contended that he was not absconding and that he
did not receive notice of proclamation, which are mandatory to get the property released even
within the period of two years from the date of attachment. But, as the petition itself is not
maintainable, it can only be dismissed, as has been done by the courts below.
Revision fails and it is dismissed. Dismissal of the petition will not affect the rights of the petitioner,
if any, to approach the civil court. 13th August, 2010 (M.Sasidharan Nambiar, Judge) tkv
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