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 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
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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
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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
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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
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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 inCRRP 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 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
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
CRRP 1015/04 23
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 notCRRP 1015/04 24
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
CRRP 1015/04 25
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 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-
CRRP 1015/04 26
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