2021 (11) TMI 592 - HC - Indian Laws

Seeking release and the restoration of property attached under Section 83 of the Code of Criminal Procedure, 1973 - whether the right of the Petitioners to seek release of property under Section 85 of Cr.P.C. beyond two years from the date of its attachment stands extinguished? - HELD THAT - Section 83 of Cr.P.C. empowers the Court, issuing a proclamation under Section 82 to order the attachment of any property movable or immovable or both belonging to the proclaimed person. Subsection 4 of Section 83 provides that if property ordered to be attached is immovable, the attachment be made through Collector of District, either by taking possession or by appointment of receiver or by an order in writing prohibiting the payment of rent on delivery of property to proclaim person or to anyone on his behalf or by all or any of such methods as the Court thinks fit - Soniya had filed an application purportedly under Section 84 and although her claim and objection to attachment, was not entertained, she did not file the suit to establish her rights in the property. Be that as it may, under Section 85(1), if proclaimed person person appears within the time specified in procolamation order, the Court is empowered to make an order to release the property from attachment. If 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 of Government. Yet property shall not be sold until any claim preferred or objection made under Section 84 has been disposed of under that Section. Pending attachment under Section 83 of Cr.P.C.; same property was attached before judgment in 2008 in the suit instituted by the Complainant. In the said summary suit, consent terms were filed in October, 2019. Whereafter on 10th October, 2019, the suit was disposed of and consent decree was drawn. Whereafter Registrar of City Civil Court was directed to unseal the property and hand over possession to Dinesh Singh Lakra, director of the Petitioners-Company. Admittedly, the property in question was under attachment of City Civil Court till October, 2019, and thus after drawing the consent decree in October, 2019, application was moved by the Petitioners under Section 85 of Cr.P.C., which they could not have moved in view of order of attachment passed in Civil Suit - the Petitioners were prevented by sufficient cause in pursuing the remedy under Section 85 of Cr.P.C. These facts were completely ignored by the learned Metropolitan Magistrate. The order passed under Section 83 is subject to Sections 84 and 85 of the code. Section 85(3) empowers the Court to decide the application on merits. The underlying scheme and object of attaching property of the absconder is not to punish him, but to compel his appearance and therefore under Section 85 of Cr.P.C., Court is empowered to release and restore the attached property. Thus, although the application is required to be made within a period of two years from the date of attachment, however if made after two, that itself shall not preclude the Court from exercising the jurisdiction under Section 85 of Cr.P.C., if reasonable cause is shown, for not approaching within the given time. If period of two years envisaged under Section 85(3) is construed literally, it shall frustrate the object of the attachment - the Courts are bound to consider the application filed under Section 85(3) on merits by ascertaining, whether notice of proclamation was properly served on the party and whether application filed beyond two years prescribed under the statute is explained with reasonable cause. Procedure is hand maid of justice. The endeavour of the Court should be to render justice by appropriate interpretation of statute. Therefore if the Court finds that the person could not approached to seek release and restoration of property within two years due to circumstances beyond his control then in such a case propriety rights of such person in the property would not extinguish automatically. Therefore it is held that, Subsection 3 of Section 85 empowers the Court to entertain the application for release and restoration of the property beyond two years from the date of attachment, if such a person proves to the satisfaction of the Court that he was prevented by a sufficient cause, from making an application for release and restoration of the property. Thus, to be stated that two years period referred for lifting the attachment cannot be read literally to say the belated application is not maintainable, even if there is a justifiable cause for not seeking release of raising the attachment after two years. In this case, the learned Metropolitan Magistrate did not consider the circumstances, which prevented the Petitioners for making the claim under Section 85(3) of Cr.P.C. within a period of two years. In the circumstances and for the reasons stated, the impugned order dated 21st November, 2019 is quashed and set aside and the learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai, is directed to decide Petitioners application on merits - petition allowed.

Summary

Issues Involved:
1. Legality of the order rejecting the application for release and restoration of attached property under Section 83 of the Cr.P.C.
2. Jurisdiction of the Court to review an earlier order.
3. Time limitation for seeking release and restoration of attached property under Section 85 of the Cr.P.C.

Detailed Analysis:

1. Legality of the Order Rejecting the Application for Release and Restoration of Attached Property:
The petitions were filed under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, challenging the order dated 21st November 2019, which rejected the Petitioners' application for release and restoration of property attached under Section 83 of the Cr.P.C. The property in question was attached following complaints under Section 138 of the Negotiable Instruments Act. Despite a compromise between the Complainant and the Petitioners and subsequent withdrawal of the complaints, the application for release and restoration was rejected by the Metropolitan Magistrate on the grounds of a previous identical application being rejected, lack of power to review the earlier order, and lapse of two years since the attachment.

2. Jurisdiction of the Court to Review an Earlier Order:
The Court noted that the Petitioners had not moved the Court earlier under Section 85 of the Cr.P.C., but for the first time on 22nd October 2019. Therefore, the reason for rejecting the application on the basis that an identical application was previously rejected was incorrect. The Court emphasized that the learned Metropolitan Magistrate ignored the peculiar facts of the case, which prevented the Petitioners from pursuing the remedy under Section 85 of the Cr.P.C. earlier.

3. Time Limitation for Seeking Release and Restoration of Attached Property:
The critical issue was whether the right of the Petitioners to seek release of property under Section 85 of the Cr.P.C. beyond two years from the date of its attachment stands extinguished. Section 85(3) of the Cr.P.C. allows the Court to release the property if the proclaimed person appears voluntarily or is apprehended within two years from the date of attachment and proves that they did not abscond or conceal themselves to avoid execution of the warrant. The Court held that the two-year period should not be construed literally to frustrate the purpose of the attachment. The Court must consider the application on merits, even if filed after two years, provided there is a reasonable cause for the delay. The Court cited the case of K. Govindraj Vs. Subbian and Others, which held that belated applications could be considered if there is a justifiable cause.

Conclusion:
The impugned order dated 21st November 2019 was quashed and set aside. The Metropolitan Magistrate was directed to decide the Petitioners' application on merits, considering the circumstances that prevented them from making the claim within two years. The Petitioners were instructed to file a formal application to bring this order to the notice of the learned Metropolitan Magistrate, who must decide the application within twelve weeks in accordance with the law. The rule was made absolute, and all writ petitions were allowed and disposed of.