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

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When court can issue order of attachment of property of absconding person along with proclamation U/S 82 of crpc?

 Moreover, in order to issue an order of attachment of property of a person absconding under Section 83 of the Cr.P.C., the Court issuing a proclamation under Section 82 of the Cr.P.C., may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both belonging to the proclaimed person, provided that the Court is satisfied that the person in relation to whom the proclamation is to be issued; (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local jurisdiction of the Court. Only on satisfaction of such condition, the Court may order the attachment simultaneously with the issue of the proclamation.

Equivalent Citation: 2016CriLJ1231

IN THE HIGH COURT OF ORISSA

CRLMC No. 4819 of 2015

Decided On: 03.12.2015

 Antaryami Barik and Ors.
Vs.
 State of Orissa

Hon'ble Judges/Coram:S.K. Mishra, J.

Citation;2016 CRLJ1231

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