TMI Blog2021 (11) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... tertained, she did not file the suit to establish her rights in the property. Be that as it may, under Section 85(1), if proclaimed person person appears within the time specified in procolamation order, the Court is empowered to make an order to release the property from attachment. If 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 of Government. Yet property shall not be sold until any claim preferred or objection made under Section 84 has been disposed of under that Section. Pending attachment under Section 83 of Cr.P.C.; same property was attached before judgment in 2008 in the suit instituted by the Complainant. In the said summary suit, consent terms were filed in October, 2019. Whereafter on 10th October, 2019, the suit was disposed of and consent decree was drawn. Whereafter Registrar of City Civil Court was directed to unseal the property and hand over possession to Dinesh Singh Lakra, director of the Petitioners-Company. Admittedly, the property in question was under attachment of City Civil Court till October, 2019, and thus after drawing the consent decree in Oct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tifiable cause for not seeking release of raising the attachment after two years. In this case, the learned Metropolitan Magistrate did not consider the circumstances, which prevented the Petitioners for making the claim under Section 85(3) of Cr.P.C. within a period of two years. In the circumstances and for the reasons stated, the impugned order dated 21st November, 2019 is quashed and set aside and the learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai, is directed to decide Petitioners application on merits - petition allowed. - Writ Petition No. 6107 / 2019 Alongwith Writ Petition No. 6104 / 2019 and Writ Petition No. 6105 / 2019 and Writ Petition No. 6106 / 2019 - - - Dated:- 16-11-2021 - SANDEEP K. SHINDE J. Mr. Ashok M. Saraogi, Advocate for Petitioners in All Matters. Mr. A.R. Patil, APP for State/ Respondent No.1. **** Judgment : - 1. Rule. 2. Rule made returnable forthwith. Heard, finally with the consent of the parties. 3. These petitions under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, are directed against the order dated 21st November, 2019 (a common order) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant to withdraw the complaints and disposed of the same. In consequence, vide order dated 19th October, 2019, Petitioners-accused were acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act in all aforesaid complaints. Well before withdrawing the complaints, the Complainant and the Petitioners had also filed the consent terms in the summary suit on 10th October, 2019. Whereafter, the attachment was lifted by the City Civil Court and directed the Registrar, to hand over possession of the said property to Dinesh Lakra, director of the Petitioners-Company. 6. In the backdrop of aforestated facts, the Petitioners herein, moved an application under Section 85 of the Cr. P. C. in CC/447/SS/2005; CC/448/SS/2005; CC/449/SS/2005; CC/450/SS/2005; CC/451/SS/2005; CC/27/SS/2013, to lift the attachment, release and restore the said property to them. The Complainant (Respondent No. 2 herein), recorded his no objection for releasing and restoring the said property to the Petitioners. These applications were heard and rejected by order dated 21st November, 2019 on the following grounds; (i) On previous occasion, identical application was rejected and the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the first time, they moved an application on 22nd October, 2019 under Section 85 of Cr.P.C. In view of this, one of the reason for rejecting the application of the Petitioners, that earlier application was rejected and order passed therein, cannot be reviewed was incorrect. The next ground for rejection was that the Petitioners did not approach the Court for release and restoration of the said property, within two years from the date of attachment. 11. In the backdrop of the facts aforesaid, the question for the determination is; whether the right of the Petitioners to seek release of property under Section 85 of Cr.P.C. beyond two years from the date of its attachment stands extinguished? 12. Section 85 of Cr.P.C. reads as under; 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 expirat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd order of attachment shall be subject to result in such suit. Herein, Soniya had filed an application purportedly under Section 84 and although her claim and objection to attachment, was not entertained, she did not file the suit to establish her rights in the property. Be that as it may, under Section 85(1), if proclaimed person person appears within the time specified in procolamation order, the Court is empowered to make an order to release the property from attachment. If 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 of Government. Yet property shall not be sold until any claim preferred or objection made under Section 84 has been disposed of under that Section. 14. The facts in the case are peculiar. Herein, pending attachment under Section 83 of Cr.P.C.; same property was attached before judgment in 2008 in the suit instituted by the Complainant. In the said summary suit, consent terms were filed in October, 2019. Whereafter on 10th October, 2019, the suit was disposed of and consent decree was drawn. Whereafter Registrar of City Civil Court was directed to unseal t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Therefore if the Court finds that the person could not approached to seek release and restoration of property within two years due to circumstances beyond his control then in such a case propriety rights of such person in the property would not extinguish automatically. Therefore I conclude and hold thus, Subsection 3 of Section 85 empowers the Court to entertain the application for release and restoration of the property beyond two years from the date of attachment, if such a person proves to the satisfaction of the Court that he was prevented by a sufficient cause, from making an application for release and restoration of the property. Thus, to be stated that two years period referred for lifting the attachment cannot be read literally to say the belated application is not maintainable, even if there is a justifiable cause for not seeking release of raising the attachment after two years. 17. In this case, the learned Metropolitan Magistrate did not consider the circumstances, which preven ..... X X X X Extracts X X X X X X X X Extracts X X X X
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