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2011 DIGILAW 2219 (RAJ)

Raj Kumari Jain v. State of Rajasthan

2011-10-14

R.S.CHAUHAN

body2011
Hon'ble CHAUHAN, J.—Appellant is aggrieved by the order dated 6th July, 2011 passed by the District and Session Judge, Ajmer, whereby the learned Judge, has dismissed her application filed under Sections 84 and 85 of Cr.P.C. 2. The brief facts of the case are that on 25th June, 2008, the appellant had bought certain pieces of agricultural land through a registered sale-deed from Smt. Ashya, the power of attorney holder of Azaizurrehman. The said sale-deed was registered with Sub-Registrar, Kota. On 5th March, 2010, the appellant was shocked to learn that the Tehsildar, Ladpura, District Kota, has attached her land. She was informed by the Tehsildar that her property has been attached in pursuance of the order dated 6th November, 2008 passed by the Special Judge, NDPS Cases, Ajmer in a case pending against Azaizurrehman. The said attachment order was passed as Azaizurrehman was absconding during the trial. Secondly, proceedings under Section 83 of Cr.P.C. were initiated against the properties belonging to Azaizurrehman. Since, her lands were still shown in Azaizurrehman's name in the revenue records, her lands were being attached. Since, her property was endangered, she filed an application under Section 84 and 85 of Cr.P.C. before the Special Judge. Moreover, she had informed the court that Azaizurrehman is incarcerated in Central Jail, Banglore under the name of Mohd. Arifreliaman @ Bawa. Therefore, she requested the learned trial court to secure his presence through production warrant. Simultaneously, SHO, police station Gumanpura, Kota also filed an application under Section 267(2) Cr.P.C. , wherein he also informed the court that in fact, Azaizurrehman is confined in the Central Jail, Banglore. The said fact was also confirmed by the special Public Prosecutor. However, despite all these facts being brought to the notice of the learned Judge, vide order dated 6th November, 2011 learned Judge rejected the application and directed the Tehsildar Ladpura to auction the appellant's property. Hence, this appeal before this Court. 3. Learned counsel for the appellant had contended that subsequently, Azaizurrehman has been produced before the learned trial court as is apparent from the order dated 23rd August, 2011. A copy of the said order has been placed before this Court. Secondly, relying on the case of Vimlaben Ajitbhai Patel vs. Vatslaben Ashokbhai Patel & Ors. 3. Learned counsel for the appellant had contended that subsequently, Azaizurrehman has been produced before the learned trial court as is apparent from the order dated 23rd August, 2011. A copy of the said order has been placed before this Court. Secondly, relying on the case of Vimlaben Ajitbhai Patel vs. Vatslaben Ashokbhai Patel & Ors. reported in (2008) 4 SCC 649 , the learned counsel has contended that the provision contained in Section 82 of Cr.P.C. is enacted merely to secure the presence of accused. Once the said purpose is achieved, attachment of the property should be withdrawn. Therefore, as Azaizurrehman has already appeared before the learned trial court, and is facing the trial, the purpose of Section 82 has already been achieved. Thus, the property should no longer be attached. 4. Learned Public Prosecutor, in all fairness, has not questioned the legal position or the facts narrated by the learned counsel for the appellant. 5. Heard learned counsel for the parties and perused the impugned order as well as the law submitted before this Court. 6. In case of Vimlaben Ajitbhai Patel (supra) the Hon'ble Supreme Court has observed as under:- "32. The provisions contained in Section 82 of the Code of Criminal Procedure were put on the statute book for certain purpose. It was enacted to secure the presence of the accused. Once the said purpose is achieved, the attachment shall be withdrawn. Even the property which was attached, should be restored. The provisions of the Code of Criminal Procedure do not warrant sale of the property despite the fact that the absconding accused had surrendered and obtained bail. Once he surrenders before the court and the standing warrants are cancelled, he is no longer 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 order 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." 7. If the property is to be sold, it vests with the State subject to any order 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." 7. Even in the present case, once Azaizurrehman has appeared before the learned trial court and the purpose of Section 82 has been achieved, no fruitful purpose will be served by attaching the property belonging to the appellant. 8. Therefore, this appeal is hereby allowed and the order dated 6th July, 2011 is hereby quashed and set aside.