Friday, 24 July 2020

Under which circumstances the court can lift attachment from immovable property of proclaimed offender prosecuted for the dishonour of cheque after passing of two years?

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. Under Section 85 (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 or until any claim preferred or objection made under Section 84 Cr.P.C. Sub-clause (3) of Section 85 Cr.P.C., which is relevant for the present case is that if within two years from the date of 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, 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 no such notice of the proclamation as to enable him to attend within the time specified therein, such property shall be delivered to him or if it had been sold after satisfying all the cost incurred in consequence of the attachment his residue shall be returned.
 From the petition filed before the Court below, 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. If the petitioner makes out a justifiable cause for filing the present application after 12 years of attachment and able to convince the trial Court that he has not absconded himself wantonly, then, the Court has every right to consider the application and lift the attachment. Procedure is hand maid of justice. The endeavour of the Court should be to render justice by appropriate interpretation of statute.

IN THE HIGH COURT OF MADRAS

Crl. O.P. No. 18113 of 2017

Decided On: 01.09.2017

 K. Govindaraj  Vs.  Subbian and Ors.

Hon'ble Judges/Coram:
Dr. G. Jayachandran, J.

Citation: MANU/TN/2809/2017


1. Petitioner was arrayed as an accused in a private complaint filed for the alleged offence under Section 138 of the Negotiable Instruments Act, and he failed to appear before the Court during trial. Hence, he has been declared as 'proclaimed offender' and his property was attached by the trial Court vide order dated 16.06.2004 in C.C. No. 362 of 2003. While so, later the petitioner was arrested and remanded to judicial custody. It appears that the said cheque bounced case has been transferred from the file of the learned Judicial Magistrate, Thiruthuraipoondi to the file of the learned District Munsif-cum-Judicial Magistrate, Vedaranyam and renumbered as C.C. No. 834 of 2008.

2. On 08.12.2012, the complaint was dismissed as withdrawn in Crl.M.P. No. 694 of 2012. Under such circumstances, the attachment of the property, pursuant to the proclamation was not made known to the petitioner for long time, till he applied for encumbrance certificate from the third respondent, the Sub-Registrar, Vedaranyam. Having come to know about the attachment in the case, which has already been ended in dismissal, the petitioner has filed Crl.M.P. No. 3973 of 2016, to lift the attachment and intimate the same to the third respondent herein.

3. The learned District Munsif-cum-Judicial Magistrate, Vedaranyam, has dismissed the application on the ground that any attachment made under Section 83 of Cr.P.C, ought to have been raised or cancelled, within a period of 2 years, failing which the attachment made cannot be lifted. In support of the said finding, the learned District Munsif-cum-Judicial Magistrate has relied upon two Judgments rendered by the Hon'ble High Court of Kerala, the cases of M.C. Babu v. State of Kerala dated 01.07.2011 in Crl.M.C. No. 1106 of 2011 and Moideen v. The Sub Inspector of Police dated 13.08.2010 in Crl.Rev.Pet. No. 1015 of 2004 (B).

4. Heard the learned counsel for the petitioner; the learned Additional Public Prosecutor appearing for the respondents 2 to 3; perused the petition and the impugned order.

5. 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. Under Section 85 (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 or until any claim preferred or objection made under Section 84 Cr.P.C. Sub-clause (3) of Section 85 Cr.P.C., which is relevant for the present case is that if within two years from the date of 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, 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 no such notice of the proclamation as to enable him to attend within the time specified therein, such property shall be delivered to him or if it had been sold after satisfying all the cost incurred in consequence of the attachment his residue shall be returned.

6. In this case, the peculiar facts appeared to be is that the accused failed to appear before the trial Court. Hence, he was declared as the 'proclaimed offender' and consequently, attachment order has been issued on 16.06.2004, by the learned Judicial Magistrate, Thiruthuraipoondi, Thiruvarur District. Though, the accused was apprehended subsequent to the proclamation, he has not made any application for lifting the attachment of property as contemplated under Section 83 Cr.P.C. Neither the Court has informed the revenue authorities about the subsequent development to raise the attachment. The Criminal case has ended in acquittal, in view of the compromise between the parties.

7. 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. At the same time, if the person procured on subsequent date or he himself surrendered before the Court and makes his submission that he was not voluntarily absconded or concealed to avoid execution of the warrant, then, the Court shall order for lifting the attachment.

8. In M.C. Babu v. State of Kerala, one of the judgment relied by the trial Court, the learned Judge has discussed at length whether Section 5 of the Limitation Act is applicable to Section 85 (3) of the Code of Criminal Procedure. Since, the two years period mentioned in the said sub-section is a condition precedent, while holding in negative, the learned Judge has observed as under:-

"16. I stated that the period mentioned in sub sec. (3) of Sec. 85 of the Code is not a period of limitation. It is one of the twin conditions precedent for the person proclaimed to comply before requesting the Court to release the attached property, or, the sale proceeds as the case may be. If, the period mentioned in sub sec. (3) of Sec. 85 of the Code is not a period of limitation but one of the twin conditions precedent, application of Secs. 4 to 24 of the Act to the said period does not arise. On expiry of two years from the date of attachment the Court looses jurisdiction to order restoration of the property. I am supported in this view by the decision of a Division Bench of the Bombay High Court in Gurunath Narayanan Betgori, In Re (1924 Bombay 485). In the view I have taken, with great respect I disagree with the observation made in Pharma Kuries (P) Ltd. v. Soju (supra) regarding the application of Sec. 5 of the Act to the extent it concerns sub sec. (3) of Sec. 85 of the Code.

......................

18. In the view of what I have stated above the questions urged are answered as under (i) merely because the complaint against an accused is withdrawn by the complainant and the accused is consequently acquitted, he cannot after the expiry of two years from the date of attachment of his property, request to lift the attachment and release the property. (ii) Section 524 of the Limitation Act has no application to the period of two years prescribed under sub sec. (3) of Sec. 85 of the Code of Criminal Procedure.

.............

Since the attached property is at the disposal of the Government and since, I found that the power under sub sec. (3) of Sec. 85 of the Code cannot any more be exercised, it is open to the petitioner to request the Government to release the property, if it is not already sold and the residue in case any portion is sold or the sale proceeds to him. If the Government are satisfied that the plea of the petitioner is correct and that the justice of the case requires that the property (or the residue) or sale proceeds less costs incurred, as the case may be should be restored to the petitioner, it is open to the Government to do accordingly (see also Gurunath Narayanan Betgori In Re, supra) I leave petitioner to that remedy. If Petitioner makes a such request to the Government in that regard, the Government shall look into the mater and pass appropriate order as circumstances warranted."

9. In Moideen v. The Sub-Inspector of Police, the other judgment relied by the trial Court, the learned Judge has held that,

"18. On a proper analysis of Sections 82 to 85 of Code of Criminal Procedure, it can only be found 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 Moideen v. The Sub Inspector of Police on 13 August, 2010 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 subsection (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."
10. With great respect to the learned Judges who have rendered the above cited judgments, this Court wish to state while the attachment of the accused property is made pursuant to a judicial order suggesting the aggrieved party to approach the executive for remedy is not appropriate. Vesting the property with Government to review a judicial order passed under Section 83 of the code is alien to Indian legal system. Order passed under Section 83 is subject to Section 84 and 85 of the code. The Courts are bound to consider application filed under Section 85 (3) on merits, whether notice of proclamation was properly served on the party and whether the application filed beyond the two years prescribed under the statute is explained with reasonable cause. Holding Section 5 of the Limitation Act is not applicable and to direct the aggrieved person to approach the Government or to file civil suit for remedy will amount to divesting the power of the Court which has passed the order of attachment to reconsider it, in view of the accomplishment of the purpose for which the attachment was ordered. Therefore, this Court holds that the above two judgment relied by the trial Court are not appropriate to the facts and law governing the issue in hand.

11. From the petition filed before the Court below, 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. If the petitioner makes out a justifiable cause for filing the present application after 12 years of attachment and able to convince the trial Court that he has not absconded himself wantonly, then, the Court has every right to consider the application and lift the attachment. Procedure is hand maid of justice. The endeavour of the Court should be to render justice by appropriate interpretation of statute.

12. In the facts and circumstances of the case, 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. If any such petition is being filed by the petitioner, the trial Court is directed to consider the justification and reasons stated by the petitioner and pass appropriate order on the same and render justice, in accordance with law.

13. With the above observations, the Criminal Original Petition is ordered accordingly.


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