“CR” IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 Crl.Rev.Pet.No. 424 of 2010() ----------------------------- CMP.591/2009 of THE ADDL.MUNSIFF AND JUDICIAL FIRST CLASS MAGISTRATE COURT, IRINJALAKUDA .................... REVN. PETITIONER(S): PETITIONER ----------------------------------------------------------- KUMARAN, S/O.KALARIKKAL BALAN, NENMANIKKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.RAJESH CHAKYAT RESPONDENT(S): RESPONDENTS -------------------------------------------------------- 1. MURIYAD SERVICE CO-OPERATIVE BANK, NO.479, MURIYAD VILLAGE, MUKUNDAPURAM TALUK, THRISSUR. REP.BY: THE PRESIDENT. 2. THE VILLAGE OFFICER, ANANDAPURAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: “CR” V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No.424 of 2010 = = = = = = = = = = = = = = Dated this the 22 nd day of March, 2010 ORDER Heard both sides. 2. The revision petitioner challenges the order dated 18.11.2009 passed by the Additional Munsiff-II, Irinjalakuda refusing to lift the attachment under Section 84(1) Cr.P.C. 3. One Jose was the accused in S.T.Case No.51 of 2004 on the file of the court below. It was a prosecution under Section 138 of the Negotiable Instruments Act, 1881. Since Jose never appeared before the Court and was absconding, the court below had initiated steps under Sections 82 and 83 Cr.P.C and an immovable property belonging to Jose had been attached under Section 83 Cr.P.C. Pending the said case the said Jose died and the court below as per order dated 18.11.2009 closed the proceedings, holding that the charge against the accused was abated. But the attachment made under Section 83 Cr.P.C was not lifted by the Magistrate. The said accused Jose had availed a loan of Rs.1,00,000/- from the Muriyad Service Co-operative Crl.R.P. No. 424 of 2010 2 Bank (R1) in the year 1997 and due to his failure to remit the loan amount to the bank, the society had proceeded against the said Jose by filing an arbitration case as A.R.C.No.1569 of 1999 before the Registrar under Section 69 of the Kerala Co-operative Societies Act. A charged decree was passed in favour of the bank and the property was sold and the bank purchased the same as evidenced by Annexure A1 Sale Certificate dated 20.6.2006. Subsequently, the revision petitioner purchased the said property from the 1st respondent/bank on 6.7.2007. It was at a time when the order attachment under Section 83 Cr.P.C was in force, that the petitioner purchased the property from the 1st respondent/bank. He, thereafter moved the court below by filing C.M.P.No.571 of 2009 for lifting the attachment. At that time the court below closed the S.T.case against Jose after holding that the charge against the accused/Jose had abated due to his death. CMP No.591/2009 was thereafter dismissed by the court below on 18.11.2009 holding that since the purchase of the property by the revision petitioner from the 1st respondent/bank was at a time when the attachment under Section 83 Cr.P.C was Crl.R.P. No. 424 of 2010 3 in force, the same cannot be lifted. It is the said order which is assailed in this revision. 4. Since Jose, the original accused in S.T.Case No.51/2004 had died on 15.8.2006, by virtue of Rule 15 of the Kerala Criminal Rules of Practice, the charge against him had been abated eventhough the court below declared it only on 18.11.2009 . With the death of the accused, the attachment, if any, ordered under Section 83 Cr.P.C could not survive. In the matter of attachment of the property of a contemner in proceedings under the Contempt of Courts Act, 1952, the Apex court had in M/s.V.G.Peterson v.O.V.Forbes and another (AIR 1963 SCC 692) held that the attachment could subsist only so long as the contemner was alive and that on the death of the contemner, the attachment could not survive either in law or in equity and the rightful owner of the property would be entitled to restoration of the property on the death of the contemner. There is no reason why the said principle cannot apply in the case of the death of an absconding accused whose property was under an order of attachment under Section 83 Cr.P.C on the Crl.R.P. No. 424 of 2010 4 date of the death of such absconding accused. Hence the court below was not justified in refusing the prayer of the petitioner who was the rightful owner of the property he having purchased the same from the bank which in turn had purchased the property in the auction sale conducted in connection with the arbitration case. On the death of the accused (Jose) on 15.8.2006, the order of attachment passed under Section 83 Cr.P.C would come to an end. 5. The impugned order is accordingly set aside and C.M.P.No.591 of 2009 on the file of the Additional Munsiff and Judicial First Class Magistrate-II, Irinjalakuda shall stand allowed and the attachment over the property of deceased Jose will stand lifted. The Cr.R.P. is allowed as above. Dated this the 22nd day of March, 2010. V. RAMKUMAR, JUDGE sj