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2020 DIGILAW 853 (KER)

Abhila, D/o Late Sasidharan v. State Of Kerala

2020-10-13

P.SOMARAJAN

body2020
ORDER : Steps were initiated under Sections 82 and 83 Cr.P.C. against the accused by attaching the property having an extent of 11 cents comprised in Re-survey No.173/8 in Block-II of Pavithreswaram village. Subsequently, he surrendered before the Court and ended in acquittal after trial. It is thereafter on 13.3.2007, he passed away. The unmarried daughter of the deceased submitted a petition under Section 85 Cr.P.C. for lifting the attachment. That petition was dismissed as barred by limitation even without tracing the case records by the learned Magistrate. 2. The learned Judicial First Class Magistrate I, Kollam had not even traced out the case file so as to satisfy whether the accused had appeared within a period of two years from the date of attachment and enlarged on bail on his appearance, but dismissed the petition on the ground of bar of limitation. 3. Section 85 Cr.P.C. is extracted below for reference: “85. Release, sale and restoration of attached property.- (1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment. (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 and until any claim preferred or objection made under section 84 has been disposed of under that section, unless it is subject to speedy and natural decay, or the Court considers 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, 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 there from all costs incurred in consequence of the attachment, be delivered to him.” (emphasis supplied) 4. The expression “the property under attachment shall be at the disposal of the State Government” incorporated in Section 85(2) Cr.P.C. always would stand subject to the application of Section 85(3) Cr.P.C. and the conditions enumerated therein. The expression 'shall be at the disposal of' pertaining to the property under attachment is not absolute, but subject to the contingencies enumerated under Section 85(3) Cr.P.C.. This might be the reason why the legislature has in its wisdom incorporated the expression “shall be at the disposal of the State Government” with respect to the property under attachment, instead of using the word “shall vest with the State Government” or incorporating a clause extinguishing the right, title and interest of the accused over the property. The mandate under Section 85(3) Cr.P.C. is that if within two years from the date of attachment, the accused 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 (1) he did not abscond or conceal himself for the purpose of avoiding execution of warrant and that (2) he had no such notice of proclamation so as to enable him to attend within the time specified therein, the property attached or its sale proceeds after deducting the expenses incurred in consequence of attachment, shall be delivered to him. The word 'shall' engrafted in Section 85(3) Cr.P.C. makes the provision mandatory casting a duty on the court to release the property on subjective satisfaction of non-existence of wilful absence and it shall be exercised on production of accused after his arrest or his appearance before the court. The expression “proves to the satisfaction of such court” embodied in Section 85(3) stands for subjective satisfaction of the court. The legislative intent and nature of provision would make it clear that a considerable amount of discretion can be applied, not to defeat the valuable right of ownership over the property under attachment, when there is appearance or arrest of accused within a period of two years from the date of attachment. The language employed under Section 85(3) Cr.P.C. and the legislative intent in initiating proceedings under Sections 82 and 83 Cr.P.C. should be understood as the measures to procure presence of accused and the court is duty bound to address Section 85(3)Cr.P.C. when the accused brought before the Court after arrest or appears voluntarily before court within two years from the date of attachment. The vesting of property with the state Government under Section 85(2) Cr.P.C. should be understood not as complete, but as an enabling provision for the purpose of selling the property as envisaged under that sub-section till the expiry of the two year period made mentioned in Section 85(3) Cr.P.C. and it may become absolute only on expiry of two years. Till that time, it will remain conditional subject to the application of Section 85(3) Cr.P.C. Necessarily, it cannot be insisted that there should be an application under Section 85(3) Cr.P.C. for getting the property released in the event of appearance within two years. The coercive steps incorporated under Section 85 Cr.P.C. against the property of accused should be understood and appreciated within the compass of the legislative intent to procure the presence of the accused and shall not be a weapon in the hands of the Court to defeat the valuable right over the property unless there is warranting reason in consonance with Section 85 Cr.P.C. The court should be more serious while exercising the jurisdiction under Section 85(3) Cr.P.C. and it shall not be used mechanically to defeat the valuable right over the property, especially when the accused appeared or arrested within a period of two years from the date of attachment. 5. 5. Further, the two years period made mentioned should be taken as a reasonable time given for the appearance or arrest of the accused by way of precaution and hence liable for relaxation when there is sufficient ground for the non-appearance within a period of two years before the Court, wherein subjective satisfaction alone is not sufficient. There should be cogent and acceptable evidence to show that he had been prevented by sufficient ground such as act of god, unsoundness of mind, insanity or the like during the relevant period, for which, necessarily, there should be an application in writing so as to adjudicate the issue on its merits. Hence the two year period made mentioned in Section 85(3) Cr.P.C. is amenable for relaxation when there is sufficient ground and proof to the satisfaction of the court, wherein also, the court can apply its discretion to advance justice. 6. A grave mistake crept in the order of the learned Magistrate wherein she had taken note of the date of attachment and the date of submission of application presumably for the purpose of computing the period of limitation. The two year period made mentioned in Section 85(3) Cr.P.C. has to be reckoned from the date of attachment till the date of arrest or appearance of accused and not with respect to the date on which an application submitted under Section 85(3) Cr.P.C. In fact, no such application is required, if the accused appears or arrested within a period of two years. The requirement of a written application would arise only on lapse of two year period made mentioned in Section 85(3) Cr.P.C. and failure to arrest the accused or non-appearance of accused within that period. What is relevant is whether the accused was arrested within two years or voluntarily appeared within that time and proved to the satisfaction of the court that there is no wilful absence. If he was released on bail on his arrest or appearance, on satisfaction of sufficient reason for his non appearance, it would be a sufficient ground to exercise the jurisdiction under Section 85(3) Cr.P.C. for releasing the property, that too, without any application. 7. The order under Section 85(3) Cr.P.C. is amenable to an appeal under Section 86 Cr.P.C. When there is a provision for redressing the grievance, normally it is not permissible to exercise the inherent jurisdiction under Section 482 Cr.P.C.. 7. The order under Section 85(3) Cr.P.C. is amenable to an appeal under Section 86 Cr.P.C. When there is a provision for redressing the grievance, normally it is not permissible to exercise the inherent jurisdiction under Section 482 Cr.P.C.. But in the instant case, the case records were not traced out without which, an order has been passed dismissing the application, that too, without knowing the real impact of Section 85 Cr.P.C. The attachment was effected on 8.10.2004. After trial, he was acquitted. He passed away on 13.3.2007. There is hardly two years and five months between these two dates. No records were traced out in order to ascertain whether he had appeared within two years and enlarged on bail on sufficient reason. In all probability, he might have appeared before the court within a period of two years. The issue whether he had appeared within two years and had shown sufficient reason for his non-appearance and enlarged on bail cannot be ascertained without the case records. To secure ends of justice, it is fit and proper to set aside Annexure A2 order and to release the property to the petitioner on deposit of cost of attachment. Hence ordered accordingly. It shall be done within three weeks from the date of appearance of the petitioner before the Magistrate. The petitioner shall appear before the Magistrate on 02/11/2020 so as to ascertain the cost of attachment. Crl.M.C. is allowed accordingly.