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TMI Blog2010 (8) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered 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 Section 83 of Code of Criminal Procedure is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 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, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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 St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roclamation 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- 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 civ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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