2017 (9) TMI 1959 - HC - Indian Laws

Dishonor of Cheque - proclaimed offender or not - attachment of property - HELD THAT - The scope of Section 83 Cr.P.C is to attach the property of a person who is absconding or concealing himself defying warrant against him. Once proclamation is issued against such person, his property can be attached as per Section 82 Cr.P.C. Under Section 85 (1) Cr.P.C., the proclaimed person shall appear within the time specified in the proclamation order and on his appearance, the Court shall make an order to release the property from attachment. On perusal of the impugned order indicates that the trial Court is on the impression that after a lapse of two years from the date of attachment, it has no power to consider the request to lift the attachment which is not legally correct. The spirit of Sections 83, 84 and 85 in Cr.P.C is to procure an absconding accused and to proclaim an offender who is absconding or concealing himself from criminal prosecution. As a plenary measure, his property is liable to be attached for defying the warrant issued by the criminal Court. This Court could not find particulars about the date of proclamation, attachment and subsequent arrest. To some extent, the order of the trial Court is correct that de hors of the outcome of the criminal proceedings, proclamation for absconding or concealing is an independent cause of action. At the same time, if reasonable cause shown the attachment made consequent to the proclamation can be raised. The two years period referred for lifting the attachment cannot be read literally to say the belated application are not maintainable, even if there is a justifiable cause for not appearing before the Court or for not seeking relief of raising the attachment after two years. The petitioner is given liberty to file fresh petition before the trial Court stating out all the facts with details and reasons for non appearance despite proclamation and the reason for not filing petition to lift the attachment within the time prescribed under Section 85 (3) of Cr.P.C. - Petition ordered.

Summary

Issues:
1. Application to lift attachment made under Section 83 of Cr.P.C.
2. Dismissal of application by the learned District Munsif-cum-Judicial Magistrate, Vedaranyam.
3. Interpretation of Sections 83, 84, and 85 of Cr.P.C.
4. Application of Section 5 of the Limitation Act to Section 85(3) of Cr.P.C.
5. Relevance of judgments in M.C. Babu v. State of Kerala and Moideen v. The Sub-Inspector of Police.
6. Judicial review of attachment orders and the power of the Court.

Analysis:
1. The petitioner filed an application to lift the attachment made under Section 83 of Cr.P.C. due to the dismissal of the complaint. The attachment was not communicated to the petitioner until later, prompting the filing of a new application.
2. The learned District Munsif-cum-Judicial Magistrate, Vedaranyam, dismissed the application citing the requirement to raise or cancel attachments within two years. This decision was based on judgments from the High Court of Kerala.
3. The Court analyzed Sections 83, 84, and 85 of Cr.P.C., emphasizing the purpose of attaching the property of absconding individuals and the process for releasing the attachment upon appearance or surrender of the accused.
4. The Court discussed the application of Section 5 of the Limitation Act to Section 85(3) of Cr.P.C., clarifying that the two-year period is a condition precedent and not subject to the Limitation Act.
5. Two judgments from the High Court of Kerala were reviewed regarding the release of attached property and the rights of absconding accused individuals.
6. The Court criticized the reliance on the judgments, emphasizing that the power to review attachment orders lies with the Court and not the executive or civil courts. The Court highlighted the importance of considering applications to lift attachments based on reasonable causes and justifiable circumstances.

Overall, the Court directed the petitioner to file a fresh petition before the trial Court, providing detailed reasons for non-appearance and the delay in seeking relief to lift the attachment. The trial Court was instructed to consider the justifications presented and render a decision in accordance with the law and the principles of justice.