Babu vs State of Kerala

Thomas P. Josep

Questions urged for a decision are:

(i) Whether an accused against whom the complaint was withdrawn by the complainant and consequently was acquitted, could even after expiry of two (2) years from the date his property was attached seek release of attachment and restoration of the property, under sub-s.(3) of S.85 of the Criminal Procedure Code (for short "the Code'')?

(ii) Whether, S. 4 to 24 of the Indian Limitation Act, 1963 (for short "the Act" would apply to the period of two years mentioned in sub-s.(3) of S.85 of the Code?

A resume of facts is necessary for decision of the question. The 2nd respondent filed a complaint before learned Judicial First Class Magistrate-II, Aluva alleging that petitioner committed offence under S. 138 of the Negotiable Instruments Act. Learned Magistrate issued summons to the petitioner. He appeared through counsel but thereafter there was no appearance. Learned Magistrate initiated steps under Ss.82 and 83 of Code on 4.6.2003. The property (allegedly) belonging to the petitioner was attached by 5.6.2004 and on 5.7.2004 learned Magistrate received report of the Village Officer to that effect. The case was included in the long pending register since in spite of coercive steps taken presence of petitioner could not be procured. Later the dispute was settled between petitioner and the 2nd respondent. The case was refiled as C.C. No. 35 of 2011 and by Annexure-II, order dated 3.6.2011, learned Magistrate permitted the 2nd respondent to withdraw the complaint under S.257 of the Code. That resulted in the acquittal of petitioner.

Petitioner has filed this proceeding under S.482 of the Code requesting to quash the order dated 4.6.2003 issuing steps against him under Ss.82 and 83 of the Code and the order of attachment passed by the learned Magistrate in respect of the right, title and interest of petitioner in the property attached.

Learned Senior Advocate has contended that while acquitting petitioner, learned Magistrate has not issued any direction regarding release of (he property, by the disposal of the case learned Magistrate has become functus officio and hence petitioner has approached this Court requesting to exercise its power under S.482 of the Code. Learned Senior Advocate argued that the purpose of initiating steps under Ss.82 and 83 of the Code is to procure presence of the proclaimed person before Court, the purpose in the present case is served by Annexure-II, order dated 3.6.2011 whereby the complaint was withdrawn and petitioner was acquitted. Hence, it is no longer necessary to retain attachment over the property. Learned Senior Advocate has invited my attention to the decision of the Supreme Court in V.G. Paterson Vs. O.V. Forbes and Others, . It is also argued that petitioner has only a fractional interest in the property attached since it is ancestral property over which his brother and sisters also have right. In the circumstances, it is argued that for the ends of justice this Court could pass an order setting aside proceedings of learned Magistrate under Ss.82 and 83 of the Code attaching the property and direct release of the said property to the petitioner. Learned Senior Advocate submitted that the Government has not so far disposed of the property.

Learned Public Prosecutor submitted that so far as release of attachment and restoration of property are concerned, the Code specifically provides remedy under S.85 and in such circumstances petitioner had to avail the remedy under the said provision. Petitioner ought to have appeared before the learned Magistrate within two years of the date of attachment and proved that he had not absconded or concealed himself for the purpose of avoiding execution of the warrant and that he had no notice of proclamation to enable him to attend the Court within the time specified therein. Petitioner having not done that, he cannot overcome the bar under sub-s.(3) of S.85 of the Code. According to the learned Public Prosecutor, when the Statute provides alternative remedy and that remedy is not resorted to, or has become barred, resort cannot be had to S.482 of the Code which will only have the effect of making the provisions of the Code redundant.

To appreciate the rival contention it is necessary to refer to the relevant provisions of the Code. Ss.82 and 83 of the Code empowers the Court to issue proclamation and attach property of the person who is found to have absconded. The manner of attachment of property is provided in S.83. In the present case learned Magistrate issued proclamation and attached property of petitioner. That attachment was completed by 5.6.2004. Petitioner did not appear in Court either voluntarily or was brought before court within two years from 5.6.2004. It was on 3.2.2011 that on the basis of an out of Court settlement 2nd respondent withdrew the complaint and petitioner was acquitted under S.257 of the Code. S.85 of the Code deals with release of attachment and restoration of property attached. Under sub-s.(2) of S. 85, if the proclaimed person does not appear within the time specified in the proclamation the property under attachment shall be "at the disposal of the State Government", but the property is not to be sold by the State Government until expiration of six months from the date of attachment and until any claim preferred or objection made under S.84 has been disposed of under the said provision; unless the property attached is subject to speedy and natural decay. Sub-s.(3) of S.85 which is relevant for the decision of this case reads:

(3). If, within two years from the date c f the attachment, any person whose property is or has been at the disposal of the State Government, under sub-s.(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.

So far as the person proclaimed is concerned, the remedy available to him, unless he has appeared within the time specified in the proclamation as provided under sub-s.(2) of S.85, is to resort to sub-s.(3) of S. 85 for which he must have either appeared or was brought before Court within two years from the date of attachment and proved to the satisfaction of the Court circumstances referred in sub-s.(3). Then the Court shall direct release of the property provided, if it is not already sold by the Government, or, in case the property or any portion of it is already sold, to deliver to the person proclaimed the residue or the sale proceeds after satisfying all cost incurred in consequence of the attachment.

In para. 22 of Mrs. V.G. Peterson v. O.V. Forbes & Anr. (supra) it is held:

We have assumed that the Court had the power to attach the properties of the alleged contemnor; but have held that it had no power in law to make these over to the Government. The attachment however could only subsist so long as the contemnor was alive. On the contemner''s death the attachment could not in law or equity continue. For, the purpose for which the attachment was made, viz., to secure the presence of the alleged contemnor could no longer be achieved. Obviously, in such a case, the rightful owner of the property would be entitled to restoration of the property on the contemnor''s death.

I am afraid the said observations do not apply to the facts of the present case. Observations made in a judgment is not to be blindly followed in every case, for, a decision is authority for the case it decides and the question whether a decision has application in another case should depend on the facts of that case. The above quoted observations are not made in relation to sub-s.(3) of S.85 of the Code. In a latter decision Vimalben Ajitbai Patel v. Vatslabeen Ashokbhai Patel (2008 (2) KLT SN 9 (C. No. 10) (SC) also the Supreme Court has observed that once the accused surrenders, steps are to be recalled, but, that decision also did not relate to the scope and application of sub-s.(3) of S.85 of the Code. A learned Judge of this Court in Moideen Vs. Sub Inspector of Police, held with reference to sub-s.(3) of S.85 of the Code that for the said provision to apply, two mandatory conditions are to be satisfied; that the person proclaimed must have appeared voluntarily or was brought before Court within two years of the date of attachment and; he must prove to the satisfaction of the Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, or that he had no notice of the proclamation to enable him to attend the Court within the time specified in the proclamation.

It is pointed out by learned Senior Advocate that it is open to the Criminal Court to entertain a petition by the proclaimed person even after the expiry of the period of two years mentioned in sub-s.(3) of S.85 of the Code. Learned Senior Advocate has made reference to the decision of this Court in Pharma Kuries (P) Ltd. Vs. Soju, where learned Judge observed that so far as proceedings under Ss.83 to 86 of the Code are concerned, the application of Ss.4 to 24 of the Act is not excluded in view of S.29(2) of the Said Act.

Having gone through the relevant provisions of the Code and the decisions on the point, I regret that I am unable to agree with the observation made in Pharma Kuries (P) Ltd. v. Soju to the extent it concerns application of S.5 of the Act to sub-s.(3) of S.85 of the Code (which alone I am considering in this proceeding). I do not also think that the question whether S.5 of the Act has application to sub-s.(3) of S.85 of the Code requires reference to a larger Bench. The reason is that the observation made, by the learned Judge in Pharma Kuries (P) Ltd. v. Soju to the extent it concerns sub-s.(3) of S.85 of the Code is only obiter, as the learned Judge was not required to decide that question in the said case. The question whether the period of two years mentioned in sub-s.(3) of S.85 is a period of limitation for an application to be made by the person proclaimed or, is a condition precedent for his requesting release of the property did not arise for a decision in Pharma Kuries (P) Ltd. v. Soju. On the other hand, in that case learned Judge was only concerned with the question whether S.5 of the Act applied to a claim or objection made under sub-s.(1) of S.84 of the Code by a person other than the person proclaimed. This is clear from the first paragraph of the decision in Pharma Kuries (P) Ltd. Vs. Soju, where the question raised for decision is.

Is S.5 of the Limitation Act applicable at all to a claim petition under S.84(1) of the Code of Criminal Procedure? This is the question of law raised in this revision petition directed against an order passed by the learned Magistrate dismissing a claim petition filed by the petitioner under S.84 (1) of the Code of Criminal Procedure.

The ratio of that decision is only that under sub-s. (1) of S. 84 of the Code is subject to Ss. 4 to 24 of the Act. I am unable to accept that the period of two years mentioned in sub-s. (3) of S.85 of the Code is a period of limitation for an application by the proclaimed person so that, question of application of Ss. 4 to 24 of the Act would arise. Instead, it is one of the twin conditions the person proclaimed has to satisfy for release of property sale proceeds under sub-s. (3) of S.85. This is clear from sub-s. (1) of S.84 of the Code. S.84, as aforesaid deals with claims or objections by persons other than the proclaimed person who claims to have an interest in the property attached. Sub-s. (1) of S.84 (1) of the Code says.

(1) If any claim if preferred to, or objection made to the attachment of, any property attached under S.83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under S.83, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part:

Provided that any claim preferred or objection made within the period allowed by this subsection may, in the event of death of the claimant or objector, be continued by his legal representative.

Two things emerge from S.84;

(i) there should be a claim preferred or objection made by a person other than a person proclaimed to the property attached and; (ii) such claim must be preferred or objection made within six months from the date of attachment. S.84 contemplates an application either in the form of a claim or objection to be preferred made within a period of 6 months from the date of attachment. Needless to say therefore, that the period of 6 months referred to in sub-s.(1) of S.84 of the Code is a period of limitation prescribed for preferring a claim or making an objection to the attached property.

It is interesting to note that while sub-s. (1) of S.84 refers to Claims preferred and objections made for which a time limit (six months) is provided, sub-s. (3) of S.85 does not refer to any ''application''. The said provision only requires that the proclaimed person must voluntarily appear or is brought before the Court within two years of the date of attachment and, proved to the satisfaction of such Court either that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant or that had no notice of the proclamation. If the twin conditions are satisfied the Court which ordered the attachment has no option but to order release of the property. Of course, the question whether in the meantime property which was at the disposal of the Government has been sold also would arise. If the property is not sold the Court can release attachment and direct its restoration and, if the whole or any portion of the property is sold by the Government, the Court has the power to order release of the residue and/or the sale proceeds after defraying the costs.

I do not forget about S.86 of the Code. The heading of that Section reads:

Appeal from order rejecting application for restoration of attached property.

But the body of that Section makes no mention of any ''application'' (preferred under sub-s. (3) of S.85) but only says about the right of a person aggrieved "by any refusal to deliver the property or the proceeds of the Sale thereof" to appeal. The expression "application" referred to in the heading of S.86) can mean an objection to a Court; the request to a judicial officer; or the act of making or preferring a request. Hence, the expression "application" referred to in the heading of S.86 can equally mean a request made by the proclaimed person to the Court under sub-s. (3) of S.85 of the Code. No doubt, in the case of ambiguity the heading or marginal note to the Section could be said in the interpretation of the provision but it cannot override or control the provision itself. It is relevant to refer to the decision of the Supreme Court in Challamane Huchha Gowda Vs. M.R. Tirumala and Another, , where though in relation to an application to ser aside the sale under O.21 R.89 of the CPC it was held that the Rule does not provide that the application has to be in a particular form and that even a memo with a prayer to set aside the sale is sufficient. In AIR 1926 662 (Lahore) the view taken is that it is not only necessary to make the petition but also to prove the necessary facts within the period of two years. I respectfully disagree with the view that there should be a petition. So far as sub-s.(3) of S.85 of the Code is concerned, I am of the view that for the reasons I have stated, a written application is not absolutely necessary. It is however not necessary for me to go into the question whether the necessary facts are also to be proved within the period of two years though. I may have a different view on that question also. In my view; the conditions are that the proclaimed person must either appear or be brought before Court within the period of two years from the date of attachment and proves to the satisfaction of the Court the circumstances stated in sub-s.(3) of S.85 of the Code.

I stated that the period mentioned in sub-s.(3) of S.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-s.(3) of S.85 of the Code is not a period of limitation but one of the twin conditions precedent, application of Ss.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 loses 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 Bom. 485). In the view I have taken, with great respect disagree with the observation made in Pharma Kuries (P) Ltd. v. Soju (supra) regarding the application of S.5 of the Act to the extent it concerns sub-s.(3) of S.85 of the Code.

In the present case it is not disputed that the request to lift attachment and release the property is being made even in this proceeding much after the expiry of two years from the date of attachment. One of the twin conditions under sub-s.(3) of S.85 of the Code is not complied by petitioner. He therefore cannot make a request to the learned Magistrate to lift the attachment and release the property. In that situation, he cannot request this Court to pass an order under S.482 of the Code. The principle.

Quando aliquid prohibetur, prohibetur at omne quod devenitur ad illud.

(whatever is prohibited by law to be done directly cannot legally be effected by an indirect or circuitous contrivance) must apply.

The Supreme Court in Dharmatma Singh Vs. Harminder Singh and Others, has reiterated that the inherent power under S.482 of the Code cannot be exercised in regard to matters specifically covered by other provisions of the Code.

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) S.5 of the Limitation Act has no application to the period of two years prescribed under sub-s.(3) of S.85 of the Code of Criminal Procedure.

But that does not leave petitioner without any remedy at all. Referring to sub-s.(2) of S.85 of the Code I stated that on the happening of the contingency referred therein the property attached "shall be at the disposal of the State Government". Attachment by itself does not confer title but only prevents alienation. When the property attached is placed at the disposal of the Government, it does not pass title over the property to the Government. There is no vesting of title with the Government but it only gives the Government the right for enjoyment of income from the property during continuance of attachment. By virtue of sub-s.(2) of S.85 of the Code the Government has the power to sell the attached property subject to the conditions mentioned therein. On such sale, title to the attached property passed to the purchaser and in the circumstances stated in sub-s.(3) of S.85, the Court retains power to direct payment of the sale proceeds less the costs incurred in consequence of the attachment, to the person proclaimed. Since the attached property is at the disposal of the Government and since, I found that the power under sub-s.(3) of S.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 is 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 such a request to the Government in that regard, the Government shall look into the mater and pass appropriate order as circumstances warranted.

Learned Senior Advocate submits that petitioner has only a fractional interest in the property attached and that there are other persons having interest in the property. If there is any person other than petitioner having interest in the property attached, they can move the learned Magistrate under sub-s. (1) of S.84 of the Code and to their claim or objection, the decision in Pharma Kuries (P) Ltd. v. Soju would apply. They can also move the Government as aforesaid, for appropriate reliefs as the case is not pending before the learned Magistrate.

With the above observations and directions this Crl. M.C is dismissed.