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2019 DIGILAW 633 (KER)

Gigimol Rajan v. District Collector

2019-08-06

RAJA VIJAYARAGHAVAN V.

body2019
ORDER : 1. This petition is filed under S.482 of the Cr.P.C. 2. The petitioner herein and her husband Rajan Mathew are the owners of an item of property having an extent of 8 Ares situated within the limits of Mallappally village. By order dated 19.3.2015, the Judicial Magistrate of the First Class, Thiruvalla, has ordered for attachment of the said property under S.83 of the Code to secure the presence of her husband, Sri.Rajan Mathew. Sri.Rajan Mathew, incidentally was the accused in C.C.No.426 of 2009 on the file of the Judicial First Class Magistrate Court, Thiruvalla. 3. The learned counsel appearing for the petitioner submitted that the petitioner and her husband were working abroad and they were not served with summons. According to the petitioner, her husband was arrested on 17.07.2015 and that he had pleaded guilty of the offence. It is submitted that Sri.Rajan Mathew had surrendered before the learned Magistrate on 17.07.2015, and he had pleaded guilty. He was sentenced to pay a fine of Rs.2,500/- for the offence under S.257(1) of the Cr.P.C. Relying on the decision of this Court in Abdul Khadar v. State of Kerala ( 2015 (5) KHC 361 ) and that of the Hon’ble Supreme Court in Vimalaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel & Ors. ( (2008) 4 SCC 649 ), it is contended by the learned counsel that the purpose for which attachment was ordered having been achieved, the attachment ought to have been withdrawn and the property be restored. 4. In view of the submissions of the learned counsel, a report was called for from the learned Magistrate, which has been placed before this Court. The report reads as follows:- “C.C.No.783/2015 of this court arose from Crime No.14/2009 of Keezhvaipur Police Station for the offence punishable u/S.294(b), 323 and 341 I.P.C. Initially the case was taken on file as C.C.No.426/2009. Since the accused absconded, after issuing warrant and steps under S.82 and 83 of Cr.P.C., the case was transferred to long pending cases as L.P. No.45/2015. Meantime, the officer of Mallapally Village, filed a report dated 21.1.2015 stating that a property extend 0.0800(H) comprised in re-survey No.79/8 of block No.28 of said village is in the joint ownership of accused (Rajan Mathew) and his wife name Gigimole. On receipt of that report, an order of attachment issued and the same was effected on 19.3.2015. Meantime, the officer of Mallapally Village, filed a report dated 21.1.2015 stating that a property extend 0.0800(H) comprised in re-survey No.79/8 of block No.28 of said village is in the joint ownership of accused (Rajan Mathew) and his wife name Gigimole. On receipt of that report, an order of attachment issued and the same was effected on 19.3.2015. On 17.7.2015 the accused was arrested and produced and then he pleaded guilty for the offences. After accepting his plea he was convicted and fined Rs.2500/- for the offences. It was further ordered to pay the fine amount, if realised, to the de facto complainant, as compensation u/S.257(1) of Cr.P.C. Accused remitted the fine amount.” 5. Section 85 of the Cr.P.C. provides for the release, sale and restoration of the attached property. S.85(3) states that if, within 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 of 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. 6. In the case on hand, the attachment was effected on 19.03.2015. Within a period of 4 months thereafter, i.e., on 17.7.2015, the accused had appeared before the learned Magistrate and had pleaded guilty. As held by this Court in Abdul Khader (cited supra), S.85(3) of the Code does not say that a formal application is required to be filed for getting the attachment lifted. The petitioner, therefore, cannot be found fault with for not filing an application for the same. Once the purpose of issuing the attachment was achieved, the learned Magistrate ought to have withdrawn the attachment and restored the property. The petitioner, therefore, cannot be found fault with for not filing an application for the same. Once the purpose of issuing the attachment was achieved, the learned Magistrate ought to have withdrawn the attachment and restored the property. For the aforementioned reasons, this petition will stand allowed and all proceedings pursuant to Annexure-7 order of attachment in L.P.No.45 of 2015 in C.C.No.426/2019 on the file of the Judicial Magistrate of the First Class, Thiruvalla will stand quashed and the concerned authorities are ordered to restore the property attached to the petitioner. This petition will stand allowed.