{"id":243255,"date":"2010-08-13T00:00:00","date_gmt":"2010-08-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/moideen-vs-the-sub-inspector-of-police-on-13-august-2010"},"modified":"2017-12-05T15:38:00","modified_gmt":"2017-12-05T10:08:00","slug":"moideen-vs-the-sub-inspector-of-police-on-13-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/moideen-vs-the-sub-inspector-of-police-on-13-august-2010","title":{"rendered":"Moideen vs The Sub Inspector Of Police on 13 August, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Moideen vs The Sub Inspector Of Police on 13 August, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.Rev.Pet.No. 1015 of 2004(B)\n\n\n1. MOIDEEN S\/O.AHAMMEDKUTTY,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE SUB INSPECTOR OF POLICE,\n                       ...       Respondent\n\n2. STATE OF KERALA, REP. BY THE\n\n                For Petitioner  :SRI.T.G.RAJENDRAN\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice M.SASIDHARAN NAMBIAR\n\n Dated :13\/08\/2010\n\n O R D E R\n                                             \"C.R.\"\n\n             M.Sasidharan Nambiar, J.\n            --------------------------\n              Crl.R.P.No.1015 of 2004\n            --------------------------\n\n                     ORDER\n<\/pre>\n
    Can an absconding accused, whose property is<\/p>\n
attached under Section 83 of Code of Criminal<\/p>\n
Procedure, file an application, after the expiry of<\/p>\n
two years from the date of attachment, to release<\/p>\n
the property as provided under Section 85 of Code<\/p>\n
of  Criminal  Procedure,  is  the  question  to  be<\/p>\n
settled in this revision.\n<\/p>\n
    2. The facts are not disputed. Petitioner was<\/p>\n
the sixth accused in C.C.No.129\/1989 on the file of<\/p>\n
Judicial   First   Class   Magistrate’s    Court-I,<\/p>\n
Kozhikode. As he was absconding and his presence<\/p>\n
could not be procured and disposal of the case<\/p>\n
against the other accused was delayed unnecessarily,<\/p>\n
learned Magistrate split up the case as against the<\/p>\n
sixth accused and re-filed it as C.C.No.283\/1990.<\/p>\n
The case as against the remaining accused were<\/p>\n
CRRP 1015\/04              2<\/span><\/p>\n
proceeded and as per judgment dated 30.1.1993,<\/p>\n
those accused were acquitted of all the offences.<\/p>\n
As the presence of the petitioner could not be<\/p>\n
procured,    in spite  of  coercive steps,  C.C.No.<\/p>\n
283\/1990 was subsequently included in the long<\/p>\n
pending register, as provided under Rule 16 of<\/p>\n
Criminal Rules of Practice, after complying with<\/p>\n
the procedure provided under Sections 82 and 83 of<\/p>\n
Code   of   Criminal Procedure,  as L.P.No.43\/1994.<\/p>\n
While     so, petitioner surrendered on   29.5.2000<\/p>\n
before the Magistrate and consequently, L.P.No.<\/p>\n
43\/1994 was re-filed as C.C.No.113\/2000. Petitioner<\/p>\n
was released on bail. While the case as against the<\/p>\n
petitioner was being tried, on 31.7.2000, he filed<\/p>\n
C.M.P.No.3969\/2000 under sub-section (3) of Section<\/p>\n
85 of Code of Criminal Procedure to release the<\/p>\n
property attached under Section 83 of Code of<\/p>\n
Criminal Procedure. Petitioner, in the petition,<\/p>\n
contended that his properties were attached under<\/p>\n
Section 83 of Code of Criminal Procedure and he<\/p>\n
CRRP 1015\/04                3<\/span><\/p>\n
appeared before the court on 29.5.2000 and was<\/p>\n
released     on  bail  and  therefore,  the  attached<\/p>\n
property is to be released. Learned Magistrate, as<\/p>\n
per order dated 31.7.2000, dismissed the petition.<\/p>\n
Petitioner challenged that order before Sessions<\/p>\n
Court along with an application to condone the<\/p>\n
delay.      That   application   was  dismissed   and<\/p>\n
consequently, the appeal was also dismissed. It was<\/p>\n
challenged     before   this  Court  in   Crl.R.P.No.<\/p>\n
1080\/2002.      This  Court   set  aside  the   order<\/p>\n
dismissing the application for condonation of delay<\/p>\n
and directed the Sessions Court to dispose the<\/p>\n
appeal on merit. Learned Sessions Judge, as per<\/p>\n
impugned judgment dated 23.9.2003, dismissed the<\/p>\n
appeal      confirming  the   order  passed  by   the<\/p>\n
Magistrate. It is challenged in this revision.<\/p>\n
     3. Learned counsel appearing for the petitioner<\/p>\n
argued that Sections 83 to 85 of Code of Criminal<\/p>\n
Procedure do not provide that the property attached<\/p>\n
under Section 83 of Code of Criminal Procedure<\/p>\n
CRRP 1015\/04              4<\/span><\/p>\n
would vest with the Government and sub-section (3)<\/p>\n
of   Section  85  of  Code  of  Criminal   Procedure<\/p>\n
provides that even if the property attached was<\/p>\n
sold, the absconding accused is entitled to file an<\/p>\n
application to release the same and the purpose of<\/p>\n
attachment is not to punish an accused or to deny<\/p>\n
his rights in his property, but, only to secure the<\/p>\n
presence of the accused for trial and once the<\/p>\n
absconding accused surrendered before the court,<\/p>\n
the property is to be released to him. It was<\/p>\n
pointed out that the property was not sold by the<\/p>\n
Government and is still in the possession of the<\/p>\n
Government and therefore, petitioner is entitled to<\/p>\n
get the property released and dismissal of the<\/p>\n
petition is illegal.\n<\/p>\n
     4. Learned Public Prosecutor submitted that the<\/p>\n
property was attached as petitioner absconded and<\/p>\n
proclamation was issued under Section 82 of Code of<\/p>\n
Criminal Procedure and petitioner did not appear<\/p>\n
within the period mentioned in the proclamation and<\/p>\n
CRRP 1015\/04             5<\/span><\/p>\n
though an absconding accused, on his surrender or<\/p>\n
production before the court, is entitled to get the<\/p>\n
property released, it can only be as provided under<\/p>\n
sub-section (3) of Section 85 of Code of Criminal<\/p>\n
Procedure and such an accused has to establish that<\/p>\n
he did not abscond and he was unaware of the<\/p>\n
proclamation and such an application shall be filed<\/p>\n
within a period of two years from the date of<\/p>\n
attachment and as it was not filed within the<\/p>\n
period, the petition can only be dismissed as has<\/p>\n
been done by the courts below.\n<\/p>\n
     5. Section 83 of Code of Criminal Procedure<\/p>\n
provides for attachment of the property of an<\/p>\n
absconding accused. Section 82 of Code of Criminal<\/p>\n
Procedure    provides for proclamation  for  person<\/p>\n
absconding. Under sub-section (1) of Section 82, if<\/p>\n
any court has reason to believe (whether after<\/p>\n
taking evidence or not) that any person, against<\/p>\n
whom a warrant has been issued by it, has absconded<\/p>\n
or is concealing himself so that such warrant<\/p>\n
CRRP 1015\/04              6<\/span><\/p>\n
cannot     be executed, such court  may  publish  a<\/p>\n
written proclamation requiring him to appear at a<\/p>\n
specific place and at a specified time not less<\/p>\n
than thirty days from the date of publishing such<\/p>\n
proclamation. Sub-section (1) of Section 83 of Code<\/p>\n
of Criminal Procedure provides that the court,<\/p>\n
issuing a proclamation under Section 82, may, for<\/p>\n
reasons to be recorded in writing, at any time<\/p>\n
after     the  issue  of  the proclamation,   order<\/p>\n
attachment of any property, movable or immovable or<\/p>\n
both, belonging to the proclaimed person. It also<\/p>\n
provides that where, at the time of the issue of<\/p>\n
the proclamation, the court is satisfied that the<\/p>\n
person, in relation to whom the proclamation is to<\/p>\n
be issued, is about to dispose of the whole or any<\/p>\n
part of his property or is about to remove the<\/p>\n
whole or any part of his property from the local<\/p>\n
jurisdiction of the court, it may order attachment<\/p>\n
simultaneously with the issue of the proclamation.<\/p>\n
Under sub-section (2), such order shall authorise<\/p>\n
CRRP 1015\/04             7<\/span><\/p>\n
the attachment of any property belonging to such<\/p>\n
person within the district in which it is made and<\/p>\n
it shall authorise the attachment of any property<\/p>\n
belonging to such person without such district when<\/p>\n
endorsed by the District Magistrate within whose<\/p>\n
district such property is situated. Sub-section (3)<\/p>\n
provides    that if the  property   ordered  to  be<\/p>\n
attached is a debt or other movable property,<\/p>\n
attachment   shall be  as  provided  therein.  Sub-<\/p>\n
section (4) provides that if the property ordered<\/p>\n
to be attached is immovable, the attachment, under<\/p>\n
the Section, shall, in the case of land paying<\/p>\n
revenue to the State Government, be made through<\/p>\n
the Collector of the district in which the land is<\/p>\n
situated and in all other cases, it shall be as<\/p>\n
provided under clauses (a) to (d).\n<\/p>\n
     6. Section 84 of Code of Criminal Procedure<\/p>\n
provides for claims and objections to attachment.<\/p>\n
Under sub-section (1), if any claim is preferred to<\/p>\n
or   objection  made to  the   attachment  of,  any<\/p>\n
CRRP 1015\/04                       8<\/span><\/p>\n
property attached under Section 83, by any person<\/p>\n
other than the proclaimed person, within six months<\/p>\n
from the date of such attachment, on the ground<\/p>\n
that claimant or objector has an interest in such<\/p>\n
property and that such interest is not liable to<\/p>\n
attachment under Section 83, the claim or objection<\/p>\n
shall be inquired into and may be allowed or<\/p>\n
disallowed in whole or in part. Under sub-section<\/p>\n
(4), any such person may institute a suit to<\/p>\n
establish the right, which he claims in respect of<\/p>\n
the property in dispute, within a period of one<\/p>\n
year from the date of such order, but, subject to<\/p>\n
the   result     of     such    suit,     the     order     shall be<\/p>\n
conclusive.\n<\/p>\n
     7. Section 85 of Code of Criminal Procedure<\/p>\n
relates to release, sale and restoration of the<\/p>\n
property attached. Section 85 reads:<\/p>\n
           85. Release, sale and restoration of attached
\n           property – (1) If the proclaimed person appears
\n           within the time specified in the proclamation, the
\n           court shall make an order releasing the property
\n           from the attachment.\n<\/p><\/blockquote>\n
CRRP 1015\/04                         9<\/span><\/p>\n
           (2) If the proclaimed person does not appear within
\n           the time specified in the proclamation, the property
\n           under the attachment shall be at the disposal of the
\n           State Government, but it shall not be sold until the
\n           expiration of six months from the date of the
\n           attachment and until any claim preferred or
\n           objection made under Section 84 has been
\n           disposed of under that section, unless it is subject
\n           to speedy and natural decay or the court considered
\n           that the sale would be for the benefit of the owner,
\n           in either of which cases the court may cause it to
\n           be sold whenever it thinks fit.\n<\/p><\/blockquote>\n
           (3) If, withing two years from the date of the
\n           attachment, any person whose property is or has
\n           been at the disposal of the State Government,
\n           under sub-section (2), appears voluntarily or is
\n           apprehended and brought before the court by
\n           whose order the property was attached, or the court
\n           to which such court is subordinate, and proves to
\n           the satisfaction of such court that he did not
\n           abscond or conceal himself for the purpose of
\n           avoiding execution of the warrant and that he had
\n           not such notice of the proclamation as to enable
\n           him to attend within the time specified therein such
\n           property or if the same has been sold, the net
\n           proceeds or the sale or if part only thereof has been
\n           sold, the net proceeds of the sale and the residue of
\n           the property, shall, after satisfying therefrom all
\n           costs incurred in consequence of the attachment,
\n           be delivered to him.<\/p><\/blockquote>\n
     8. On a reading of Sections 82 to 85 of Code of<\/p>\n
Criminal Procedure, it is clear that the intention<\/p>\n
of providing for attachment of the property under<\/p>\n
CRRP 1015\/04             10<\/span><\/p>\n
Section 83 of Code of Criminal Procedure is to<\/p>\n
compel an absconding accused or a person who is<\/p>\n
concealing himself from being arrested in execution<\/p>\n
of a warrant to appear before the court. When an<\/p>\n
accused is absconding and the court, under Section<\/p>\n
82,   issues   a proclamation and  along  with  the<\/p>\n
proclamation or thereafter orders attachment of the<\/p>\n
property under Section 83, Section 84 enables a<\/p>\n
third    person to file   a  claim petition  or  an<\/p>\n
objection to the attachment. The right to file a<\/p>\n
claim petition or an objection under Section 84 of<\/p>\n
Code of Criminal Procedure is not available to an<\/p>\n
absconding accused. It is only “by any person other<\/p>\n
than the proclaimed person”. If such an application<\/p>\n
is dismissed after conducting an inquiry, sub-<\/p>\n
section (4) enables that person to institute a suit<\/p>\n
before a civil court to establish his right which<\/p>\n
he claimed in respect of the property in dispute<\/p>\n
and that too, within a period of one year from the<\/p>\n
date of such order. But, the right provided under<\/p>\n
CRRP 1015\/04             11<\/span><\/p>\n
Section 84(4) also cannot be availed of by an<\/p>\n
absconding accused.\n<\/p>\n
     9. Sub-section (1) of Section 85 of Code of<\/p>\n
Criminal Procedure enables an absconding accused to<\/p>\n
get the property attached under Section 83 released<\/p>\n
on his appearance by filing an application. If such<\/p>\n
an application is filed “within the time specified<\/p>\n
in the proclamation issued under Section 82” the<\/p>\n
court shall make an order releasing the property<\/p>\n
from the attachment. In such a case, no inquiry is<\/p>\n
contemplated to find out whether the accused was<\/p>\n
absconding or whether he was concealing himself<\/p>\n
from being arrested in execution of a warrant<\/p>\n
issued by the court. As a matter of right, an<\/p>\n
absconding accused is entitled to get the property<\/p>\n
released    on his  appearance   within  the   time<\/p>\n
specified in the proclamation.\n<\/p>\n
     10. Sub-section (2) of Section 85 of Code of<\/p>\n
Criminal Procedure provides that if the proclaimed<\/p>\n
person does not appear within the time specified in<\/p>\n
CRRP 1015\/04              12<\/span><\/p>\n
the proclamation, the property under the attachment<\/p>\n
shall be at the disposal of the State Government.<\/p>\n
It also provides that the property, though at the<\/p>\n
disposal of the State Government, shall not be sold<\/p>\n
until the expiration of six months from the date of<\/p>\n
the    attachment,  evidently  because, any   other<\/p>\n
person,     other than  the  proclaimed person,  is<\/p>\n
entitled to file a claim petition or an objection<\/p>\n
as provided under Section 84 within a period of six<\/p>\n
months from the date of the attachment. It also<\/p>\n
provides    that  if  any  such  claim petition  or<\/p>\n
objection has been preferred or made as provided<\/p>\n
under Section 84, the property, which is at the<\/p>\n
disposal of the State Government, shall not be<\/p>\n
disposed till the objection or the claim has been<\/p>\n
disposed by the court, unless the property is<\/p>\n
subject to speedy and natural decay and the court<\/p>\n
considers that sale would be for the benefit of its<\/p>\n
owner. It provides that in such a case, the court<\/p>\n
may sell the same whenever it thinks fit.<\/p>\n
CRRP 1015\/04              13<\/span><\/p>\n
     11. Sub-section (3) of Section 85 of Code of<\/p>\n
Criminal Procedure enables an absconding accused to<\/p>\n
apply for releasing the property attached after the<\/p>\n
period specified in the proclamation, but, within a<\/p>\n
period     of two   years  from  the date  of   the<\/p>\n
attachment. It provides that any person, whose<\/p>\n
property is or has been at the disposal of the<\/p>\n
State Government as provided under Section 83,<\/p>\n
appears voluntarily or is apprehended and brought<\/p>\n
before the court by whose order the property was<\/p>\n
attached, may apply to release the property from<\/p>\n
attachment. But, such an application is to be filed<\/p>\n
within a period of two years from the date of the<\/p>\n
attachment. Even if an application is made under<\/p>\n
sub-section (3) within the period of two years from<\/p>\n
the date of the attachment, an absconding accused<\/p>\n
is not entitled to get the property released,<\/p>\n
unless     he satisfies  the  court the two   other<\/p>\n
mandatory conditions. The first condition is that<\/p>\n
such   an   absconding accused  must prove  to  the<\/p>\n
CRRP 1015\/04            14<\/span><\/p>\n
satisfaction of the court that he did not abscond<\/p>\n
or conceal himself for the purpose of avoiding<\/p>\n
execution of the warrant. The second condition is<\/p>\n
that such an absconding accused has to further<\/p>\n
prove to the satisfaction of the court that he had<\/p>\n
no notice of the proclamation so as to enable him<\/p>\n
to attend the court within the time specified<\/p>\n
therein. If these two conditions are satisfied and<\/p>\n
the application is filed within a period of two<\/p>\n
years from the date of attachment, the court shall<\/p>\n
release the property to him and if the property, in<\/p>\n
whole or part was sold, the net proceeds of the<\/p>\n
sale and the residue of the property shall be<\/p>\n
delivered to him, less the expenses incurred in<\/p>\n
consequence of the attachment.      Therefore, the<\/p>\n
right available to an absconding accused under sub-<\/p>\n
section (3) of Section 85 of Code of Criminal<\/p>\n
Procedure is limited. First of all, the application<\/p>\n
shall be filed within a period of two years from<\/p>\n
the date of attachment. Secondly, he must satisfy<\/p>\n
CRRP 1015\/04              15<\/span><\/p>\n
the two conditions, namely, he did not abscond or<\/p>\n
conceal     himself for  the  purpose  of  avoiding<\/p>\n
execution of the warrant and also that he had no<\/p>\n
notice of the proclamation issued under Section 82<\/p>\n
of Code of Criminal Procedure so as to enable him<\/p>\n
to attend the court within the time specified in<\/p>\n
the proclamation.\n<\/p>\n
     12.    True, Sections 83  and 85  of  Code of<\/p>\n
Criminal Procedure do not specifically provide that<\/p>\n
the property attached under Section 83 vests with<\/p>\n
the Government. But, a reading of Section 85, makes<\/p>\n
it clear that once the property is attached under<\/p>\n
Section 83, the property, so attached, shall be at<\/p>\n
the disposal of the State Government, subject to<\/p>\n
the   provisions   of sub-sections (1)  to  (3) of<\/p>\n
Section 85 of Code of Criminal Procedure.<\/p>\n
     13. The question is what is the meaning of<\/p>\n
“shall be at the disposal of the State Government”.<\/p>\n
It only means that the property shall vest with the<\/p>\n
Government so as to enable the State to deal with<\/p>\n
CRRP 1015\/04             16<\/span><\/p>\n
the property at the wishes of the State Government.<\/p>\n
True, the rights so vested in the Government could<\/p>\n
only be the right, which was available with the<\/p>\n
absconding accused on the date of attachment under<\/p>\n
Section 83. No superior right could be claimed by<\/p>\n
the Government over that property based on the<\/p>\n
attachment under Section 83. As stated earlier,<\/p>\n
even though by an order passed under Section 83,<\/p>\n
attaching the property of the absconding accused,<\/p>\n
the property so attached is at the disposal of the<\/p>\n
State Government, if the absconding accused is<\/p>\n
arrested or surrenders before the court within the<\/p>\n
time specified in the proclamation, in spite of the<\/p>\n
fact that the property is at the disposal of the<\/p>\n
State Government, the property shall be released to<\/p>\n
the absconding accused. Therefore, the right over<\/p>\n
the property, which vested in the Government by<\/p>\n
attachment,   is  subject  to  the  right  of   the<\/p>\n
absconding   accused to  get  it  released  on  his<\/p>\n
appearance   within  the  time  specified  in   the<\/p>\n
CRRP 1015\/04            17<\/span><\/p>\n
proclamation. As is clear from sub-section (2) of<\/p>\n
Section 85, even though the property is at the<\/p>\n
disposal of the Statement Government from the date<\/p>\n
of attachment, it cannot be sold by the Government<\/p>\n
within a period of six months from the date of<\/p>\n
attachment, as any person other than the absconding<\/p>\n
accused is granted a right to prefer a claim or<\/p>\n
objection under Section 84 within that period. So<\/p>\n
also, even though the property is at the disposal<\/p>\n
of the State Government, it will be subject to the<\/p>\n
right of the absconding accused to get it released<\/p>\n
within a period of two years from the date of<\/p>\n
attachment as provided under sub-section (3). The<\/p>\n
absconding accused is entitled to get it released<\/p>\n
on   filing   an application  and  satisfying   the<\/p>\n
conditions provided under sub-section (3). If no<\/p>\n
such application is filed within the period of two<\/p>\n
years and even if an application is filed and<\/p>\n
dismissed on the failure of the absconding accused<\/p>\n
to satisfy any of the two conditions provided<\/p>\n
CRRP 1015\/04             18<\/span><\/p>\n
thereunder, the property, which is already at the<\/p>\n
disposal    of  the State  Government,  shall  vest<\/p>\n
absolutely with the Government subject to any other<\/p>\n
right available to the accused to approach the<\/p>\n
civil court. It may be that an independent suit may<\/p>\n
lie on the ground that there was no order of<\/p>\n
attachment under Section 83, as the formalities<\/p>\n
provided    therein were  not  complied   with  and<\/p>\n
therefore,   the  property did  not   vest  in  the<\/p>\n
Government on the expiry of two years as provided<\/p>\n
under Section 85 of Code of Criminal Procedure.<\/p>\n
But, the right to get the property by approaching<\/p>\n
the court, which ordered the attachment as provided<\/p>\n
under sub-section (3) of Section 85, will not be<\/p>\n
available to an absconding accused after the expiry<\/p>\n
of two years from the date of attachment.<\/p>\n
     14. Though learned counsel appearing for the<\/p>\n
petitioner relied on the decision of the Apex Court<\/p>\n
in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai<\/p>\n
Patel<\/a> ((2008) 4 SCC 649) and argued that Section 82<\/p>\n
CRRP 1015\/04                         19<\/span><\/p>\n
was enacted only to secure the presence of an<\/p>\n
absconding accused and once the accused surrendered<\/p>\n
before the court, the property shall be released to<\/p>\n
him and the right to get the property released is<\/p>\n
subject to the provisions of the Code, including<\/p>\n
sub-section (3) of Section 85 of Code of Criminal<\/p>\n
Procedure. The relevant portion of the decision<\/p>\n
reads:\n<\/p>\n
           The provisions contained in Section 82 of the
\n           Code of Criminal Procedure were put on the
\n           statute book for certain purpose. It was enacted to
\n           secure the presence of the accused. once the said
\n           purpose is achieved, the attachment shall be
\n           withdrawn. Even the property which was attached,
\n           should be restored. The provisions of the Code of
\n           Criminal procedure do not warrant sale of the
\n           property despite the fact that the absconding
\n           accused had surrendered and obtained bail. Once
\n           he surrenders before the court and the standing
\n           warrants are cancelled, he is no longer an
\n           absconder. The purpose of attaching the property
\n           comes to an end. It is to be released subject to the
\n           provisions of the Code. Securing the attendance of
\n           an absconding accused is a matter between the
\n           State and the accused. The complainant should not
\n           ordinarily derive any benefit therefrom. If the
\n           property is to be sold, it vests with the State
\n           subject to any other passed under Section 85 of the
\n           Code. It cannot be a subject-matter of execution of
\n           a decree, far less for executing the decree of a third
\n           party, who had no right, title or interest thereon.\n<\/p><\/blockquote>\n
CRRP 1015\/04                    20<\/span><\/p>\n
           (emphasis supplied).\n<\/p><\/blockquote>\n
The Honourable Supreme Court only held that on the<\/p>\n
accused surrendering before the court, the standing<\/p>\n
warrant shall be cancelled and he is no longer an<\/p>\n
absconder and as there is no further need of<\/p>\n
attaching the property, it is to be released. But,<\/p>\n
it was made clear that such release shall be<\/p>\n
subject to the provisions of the Code. Section 85<\/p>\n
provides for release of the property after the<\/p>\n
absconding accused appears and files an application<\/p>\n
within a period of two years from the date of<\/p>\n
attachment and not after the expiry of the two<\/p>\n
years.\n<\/p>\n
     15. A learned single Judge of the Bombay High<\/p>\n
Court in Secretary of State v. Ahalyabhai Narayan<\/p>\n
Kulkarni (AIR<\/a> 1938 Bombay 321) had considered the<\/p>\n
effect of Section 88 of Code of Criminal Procedure,<\/p>\n
1898   and    held     that    if a person, claiming an<\/p>\n
interest over the property, prefers a claim before<\/p>\n
the Magistrate and that claim is negatived, he can<\/p>\n
CRRP 1015\/04                       21<\/span><\/p>\n
institute a suit to establish his right in a civil<\/p>\n
court    within      one    year      from      the    date     of the<\/p>\n
Magistrate’s order and it does not mean that an<\/p>\n
independent        suit       by      that       person        is  not<\/p>\n
maintainable.        It was held that the object of the<\/p>\n
Legislature is that although the property was to be<\/p>\n
at the disposal of the Government after it was<\/p>\n
attached,      it    was     not     to    be      sold    until   the<\/p>\n
expiration      of    six      months       from      the      date of<\/p>\n
attachment or until the claim preferred had been<\/p>\n
disposed of under that sub-section. If no objection<\/p>\n
was raised before the Magistrate within six months<\/p>\n
from the date of the order of attachment or no stay<\/p>\n
is got from the civil court after filing a suit,<\/p>\n
Government would be free to dispose of the property<\/p>\n
as they liked, by sale or otherwise. It was then<\/p>\n
held:\n<\/p>\n
           After the Government took any such step, the
\n           party who claims interest in the property may not
\n           perhaps be able to assert any right in the property.
\n           But, so long as the property has not been sold by
\n           Government or otherwise disposed of and so long
\n           as Government have continued to remain in<\/p>\n
CRRP 1015\/04                        22<\/span><\/p>\n
           possession of the attached property, it would, I
\n           think, be open to any party claiming an interest in
\n           it to obtain a decree of a civil court declaring his
\n           right in the property and if he succeeds in
\n           obtaining such a decree before Government have
\n           finally disposed of the property, that decree would
\n           be binding against Government and the property
\n           could be disposed of subject to the rights
\n           established under such decree. It is stated in sub-
\n           section (6D) that the order of attachment shall be
\n           conclusive subject to the result of a suit instituted
\n           by the person aggrieved by the Magistrate’s order.
\n           But that, in my opinion, does not mean that it is
\n           not open to the interested party to obtain a decree
\n           declaring his rights before Government have
\n           proceeded to sell the property. The provision in
\n           sub-section (7) that the property shall not be sold
\n           until the claim preferred under sub-section (6-A)
\n           has been disposed of, means that the sale is to be
\n           subject to the rights of any person interested if
\n           such rights are established by a decree. If so, why
\n           should such rights be not enforceable even if they
\n           are obtained by a decree without going before any
\n           Magistrate under sub-section (6-A), so long as the
\n           property has not been sold by Government. I,
\n           therefore, agree with the lower courts in holding
\n           that the suit is maintainable in spite of the fact that
\n           the plaintiffs did not got to the Magistrate under
\n           sub-section (6-A) and that the decree would be
\n           binding on the Government.<\/p><\/blockquote>\n
     16. Another single Judge of the Bombay High<\/p>\n
Court in Narayan Kondaji Temkar v. Govind Krishna<\/p>\n
Abhyankar (AIR 1929 Bombay 200) considered the<\/p>\n
CRRP 1015\/04                        23<\/span><\/p>\n
question whether the words “at the disposal of the<\/p>\n
State     Government”        imply      from     the      moment the<\/p>\n
absconding accused fails to appear or from the date<\/p>\n
of attachment and held that the property would be<\/p>\n
at the disposal of the Government only from the<\/p>\n
date of attachment and not from the date of the<\/p>\n
accused absconded.\n<\/p>\n
     17. A Division Bench of Punjab and Haryana High<\/p>\n
Court considered the question of right of heirs of<\/p>\n
an absconding accused to institute a suit for<\/p>\n
restoration of the property in Daya Nand Kalu v.<\/p>\n
The State of Haryana (AIR<\/a> 1976 P & H 190). The<\/p>\n
Division Bench held:\n<\/p>\n<\/p>\n
           The object of attaching the property of an
\n           absconder is not to punish him but to compel his
\n           appearance.   If   the  property   has  not    been
\n           confiscated or disposed of, the title therein
\n           continues to vest in the owner and thereafter in his
\n           heirs. In the instant case, the property had
\n           admittedly been mutated in the name of the
\n           appellant and even the learned single Judge has
\n           held that rights other than those of occupancy,
\n           viz., “the landlord’s rights vest in the plaintiff”.
\n           The finding that occupancy rights continued
\n           despite the coming into force of the Act does not<\/p>\n
CRRP 1015\/04                          24<\/span><\/p>\n
           appear to be correct. All such occupancy rights in
\n           Punjab as were held by the absconder ripened into
\n           ownership on the coming into force of Section 3.
\n           Section 3 brought about an improvement in the
\n           status of the title of the occupancy tenant and not
\n           of the receiver or of anyone “at whose disposal”
\n           the property stood on that day as a result of
\n           attachment. Title never ceases or gets transferred
\n           by attachment, but continues in the original owner.\n<\/p><\/blockquote>\n
It was then held:\n<\/p>\n<\/p>\n
           It is true that a civil suit for the land could not be
\n           filed by the absconder himself after two years of
\n           attachment and otherwise then on the fulfilment of
\n           the two conditions laid down in Section 839, but
\n           no such shackles are attached to the right of an heir
\n           of the absconder after the latter’s death. Such heir
\n           has o right to apply under Section 89. The implied
\n           bar of Section 89 is only for such person who
\n           could have applied under that provision. The
\n           present plaintiff could not have so done. The
\n           occupancy tenancy (which had been attached) had
\n           ceased to exist as such. The title in the property
\n           admittedly vested in the plaintiff. No provision of
\n           law barred the jurisdiction of the civil court to try
\n           this suit for possession of his property.\n<\/p><\/blockquote>\n
No other decision has been pointed out on this<\/p>\n
point.\n<\/p>\n
     18. On a proper analysis of Sections 82 to 85<\/p>\n
of Code of Criminal Procedure, it can only be found<\/p>\n
CRRP 1015\/04              25<\/span><\/p>\n
that when a property is attached under Section 83<\/p>\n
of Code of Criminal Procedure, the property shall<\/p>\n
vest    with   the  Government  from  the  date  of<\/p>\n
attachment, subject to the right of any person<\/p>\n
other than the absconding accused as provided under<\/p>\n
Section 84, either to file a petition within a<\/p>\n
period of six months from the date of attachment or<\/p>\n
a suit on the rejection of the claim or objection<\/p>\n
and also subject to the right of the absconding<\/p>\n
accused to get the property released within the<\/p>\n
period     specified in  the  proclamation  by  his<\/p>\n
appearance or within a period of two years from the<\/p>\n
date     of   attachment  on   his   surrender  and<\/p>\n
establishing that he did not abscond or conceal<\/p>\n
himself     and  did  not  receive  any  notice  of<\/p>\n
proclamation so as to enable him to appear before<\/p>\n
the   court   within  the period  specified  in the<\/p>\n
proclamation.    If the  said  period  is  over, an<\/p>\n
absconding accused is not entitled to file an<\/p>\n
application to get the property released under sub-<\/p>\n
CRRP 1015\/04             26<\/span><\/p>\n
section (3) of Section 85 of Code of Criminal<\/p>\n
Procedure.   The  question whether   petitioner  is<\/p>\n
entitled to approach the civil court is not to be<\/p>\n
settled in this revision. It is also to be noted<\/p>\n
that in the application filed under sub-section (3)<\/p>\n
of   Section  85 of  Code  of  Criminal  Procedure,<\/p>\n
petitioner   has not  contended  that  he  was  not<\/p>\n
absconding and that he did not receive notice of<\/p>\n
proclamation,   which are  mandatory  to   get  the<\/p>\n
property released even within the period of two<\/p>\n
years from the date of attachment. But, as the<\/p>\n
petition itself is not maintainable, it can only be<\/p>\n
dismissed, as has been done by the courts below.<\/p>\n
     Revision fails and it is dismissed. Dismissal<\/p>\n
of the petition will not affect the rights of the<\/p>\n
petitioner, if any, to approach the civil court.<\/p>\n
13th August, 2010     (M.Sasidharan Nambiar, Judge)
\ntkv<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-243255","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nMoideen vs The Sub Inspector Of Police on 13 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/moideen-vs-the-sub-inspector-of-police-on-13-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Moideen vs The Sub Inspector Of Police on 13 August, 2010 - 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