IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 Crl.Rev.Pet.No. 3813 of 2009() ------------------------------ CRA.649/2009 of DISTRICT & SESSIONS COURT, TRIVANDRUM CMP.7800/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II,NEYYATTINKARA .................... REVN. PETITIONER(S)/APPELLANT/PETITIONER: ---------------------------------------------------------------------- ROSE MARY, W/O. VIJAYAN, KUTTATHURANNAVILA, KULATHOOR DESOM, KULATHOOR VILLAGE, NEYYATTINKARA TALUK. BY ADV. SRI.C.MOHANAN RESPONDENT(S)/RESPONDENT AND STATE/COUNTER PETITIONER: -------------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE CIRCLE INSPECTOR OF POLICE, PARASSALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. WILFER RAJ, S/O.DEVADASAN, MYLADY VEEDU, MYLADY, KULATHOOR DESOM, KULATHOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT. (IMPLEADED AS ADDL. 3rd RESPONDENT AS PER ORDER IN Crl.M.A.1256/10 Dtd.24.5.2010) BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR FOR ADDL.R3 SRI.VENUGOPAL M.R., PUBLIC PROSECUTOR FOR R1 & R2 SRI.SHAJIN S.HAMEED FOR ADDL.R3 SRI.P.M.SANEER FOR ADDL.R3 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.3813 of 2009 ----------------------------------- Dated this the 24th day of May, 2010. O R D E R This revision petition is preferred by one Rose Mary, who is admittedly the wife of the 1st accused, who is absconder, in C.P.No.3/05 connected with Crime No.145/03 of Pozhiyoor Police Station . 2. As the said accused is absconding, L.P.No.45/05 was registered in the Judicial First Class Magistrate Court-II, Neyyattinkara and finally proceeded against his property. The revision petitioner herein approached the committal court to stop the auction sale of the properties of the accused, which was scheduled on 30.9.2009. Based upon certain authorities, indicated in the impugned order, the committal court has held that, the revision petitioner has no locus standi to approach that court and to prefer the claim against the property of the absconding accused, since the matter is between the State and the accused and accordingly the petition/claim preferred by the revision petitioner was dismissed. Crl. R.P.No.3813 of 2009 2 3. Challenging the above order, the revision petitioner has preferred Crl.A.No.649/09 before the District and Sessions Court, Thiruvananthapuram, which was also dismissed by an order dated 4.11.2009. Thus she approached this court by filing the above revision petition, challenging the above orders of the courts below and for upholding the objection raised by her. 4. The learned counsel for the revision petitioner submitted that, the entire steps were initiated on the basis of a petition filed by a person, who has no locus standi to approach the court below to initiate proceedings under the provisions of Cr.P.C., against the absconding accused and the said proceedings have launched only to harass the revision petitioner. 5. On instruction, the learned Public Prosecutor submitted that the absconding accused has been arrested by the interpol and now he is in judicial custody and therefore he can raise appropriate objection before the court below and therefore the revision petition, need not be entertained as the petitioner has no locus standi, to prefer this petition and even if the revision Crl. R.P.No.3813 of 2009 3 petitioner has got any grievance, the same can be get redressed in the court below, under the changed circumstances. 6. Adv.Sri.Sasthamangalam S.Ajith Kumar, who is appearing for the petitioner in Crl.M.A.No.1256/10, who is the 3rd respondent in the impugned order submitted that, the proceedings which is the subject matter of the impugned orders are issued at the instance of the above mentioned 3rd respondent, as his brother was murdered by the absconding accused in the above criminal case and he constrained to approach the court when there was inordinate delay in starting the trial of the case. 7. From the facts and circumstances mentioned above and the development that taken place after the filing of the petition before the court below, especially the arrest of the absconding accused, I am of the view that the revision petition can be disposed of with observation that her husband can raise objection, against the proceedings initiated, connected with the absconding of the accused, who is the husband of the revision petitioner, especially when her contention is that she Crl. R.P.No.3813 of 2009 4 approached the court as the steps were taken without hearing her husband. According to the revision petitioner, she preferred the objection before the court below, as the impugned orders were passed without hearing her husband, the absconding accused. Thus it is crystal clear that the husband of the petitioner was not available at the time of passing the impugned order. As the absconding accused is now available and he is under judicial custody, it is for the said accused to invoke appropriate provisions of Cr.P.C. to challenge the proceedings initiated, against his property. In the light of the facts and circumstances indicated above, I am of the view that, without going into the details of the case and entering into the merits of the case, this revision petition can be disposed of considering the fact that the absconding accused is now available on his arrest and remaining under judicial custody. 8. The apex court in the decision reported in Vimlaben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patel & Ors. with Ajitbhai Revandas Patel & anr. Vs. State of Gujarat & anr. [2008(4) Supreme Court Cases 649], has held that the Crl. R.P.No.3813 of 2009 5 provisions contained in S.84 of Cr.P.C., was enacted to secure the presence of the accused - Once the said purpose is achieved, the attachment of property shall be withdrawn - Even the property which was attached should be restored. The apex court has specifically held that, the provisions of Cr.P.C. do not warrant sale of the property despite the fact that the absconding accused had surrendered and obtained bail. It was also held that once he surrenders before the court and the standing warrants are cancelled, he is no longer an absconder. In the very same decision, particularly in para 34, it is reported that, “Right to object in terms of Section 84 of the Code on which reliance has been placed by Mr.Mayur Shah, could not have been invoked by the wife as she has no independent claim over the property. The said provisions also could not have been invoked for the purpose of execution of a decree.” In the light of the above decision, especially as the absconding accused has already been arrested and remain under judicial custody of the court below, it is for him, to raise the objection whatsoever against the steps initiated against his property. Crl. R.P.No.3813 of 2009 6 In the light of the above decision and the intervening fact that the absconded accused is arrested, it is only just and proper to defer the proceedings initiated against the property of the accused, till a decision is taken on the above petition after hearing him also or on consideration of the independent claim or petition, if any, of the absconding accused. At the time of disposal of the above petition afreshly or the petition, if any preferred by the absconding accused, the committal court is directed to ensure that adequate opportunities are given to all the parties concerned and to pass an order accordingly. For the purpose of enabling the court below for reconsideration of the above petition and for passing fresh order, or order on the fresh petition/claim if any the impugned order dated 17.9.2009 in CMP No.7800/09 in L.P.No.45/05 in C.P.No.3/05 connected with Crime No.145/03 of Pozhiyoor Police Station, the sales or any other proceedings ordered shall be kept in abeyance, for a period 45 days or till filing a claim/objection by the absconding accused, whichever is earlier and if no such objection/claim is filed within the above period, the above order shall be revived Crl. R.P.No.3813 of 2009 7 on the basis of which and also on the strength of fresh order, if any, that must be passed, the court can proceed further in accordance with the procedure and law. This criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/