IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 Crl.Rev.Pet.No. 1015 of 2004(B) --------------------------------------------------- CRA.193/2001 of SESSIONS COURT, KOZHIKOE CMP.3969/2000 IN CC.113/2000 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... REVN. PETITIONER/APPELLANT/ACCUSED: MOIDEEN, S/O.AHAMMEDKUTTY, KOYYELIKKAL HOUSE, RAROTH AMSOM, VEZHPOOR DESOM, KOZHIKODE. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/COMPLAINANT AND STATE: 1. THE SUB INSPECTOR OF POLICE, THAMARASSERY. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: “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 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 CRRP 1015/04 2 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 CRRP 1015/04 3 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 CRRP 1015/04 4 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 CRRP 1015/04 5 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 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 CRRP 1015/04 6 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 CRRP 1015/04 7 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 CRRP 1015/04 8 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. CRRP 1015/04 9 (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 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 CRRP 1015/04 10 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 CRRP 1015/04 11 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 CRRP 1015/04 12 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 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. CRRP 1015/04 13 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 CRRP 1015/04 14 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 CRRP 1015/04 15 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 CRRP 1015/04 16 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 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 CRRP 1015/04 17 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 CRRP 1015/04 18 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 CRRP 1015/04 19 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 interest thereon. CRRP 1015/04 20 (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 CRRP 1015/04 21 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 CRRP 1015/04 22 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