TMI Blog2017 (9) TMI 1959X X X X Extracts X X X X X X X X Extracts X X X X ..... ars about the date of proclamation, attachment and subsequent arrest. To some extent, the order of the trial Court is correct that de hors of the outcome of the criminal proceedings, proclamation for absconding or concealing is an independent cause of action. At the same time, if reasonable cause shown the attachment made consequent to the proclamation can be raised. The two years period referred for lifting the attachment cannot be read literally to say the belated application are not maintainable, even if there is a justifiable cause for not appearing before the Court or for not seeking relief of raising the attachment after two years. The petitioner is given liberty to file fresh petition before the trial Court stating out all the facts with details and reasons for non appearance despite proclamation and the reason for not filing petition to lift the attachment within the time prescribed under Section 85 (3) of Cr.P.C. - Petition ordered. - Crl. O.P. No. 18113 of 2017 - - - Dated:- 1-9-2017 - Dr. G. Jayachandran, J. For the Appellant : S. Palanirajan. ORDER Dr. G. Jayachandran, J. 1. Petitioner was arrayed as an accused in a private complaint filed fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make an order to release the property from attachment. Under Section 85 (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 or until any claim preferred or objection made under Section 84 Cr.P.C. Sub-clause (3) of Section 85 Cr.P.C., which is relevant for the present case is that if within two years from the date of 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, 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 no such notice of the proclamation as to enable him to attend within the time specified therein, such property shall be delivered to him or if it had been sold after satisfying all the cost incurred in consequence of the attachment his residue shall be returned. 6. In this case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years from the date of attachment the Court looses 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 Bombay 485). In the view I have taken, with great respect I disagree with the observation made in Pharma Kuries (P) Ltd. v. Soju (supra) regarding the application of Sec. 5 of the Act to the extent it concerns sub sec. (3) of Sec. 85 of the Code. ...................... 18. 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) Section 524 of the Limitation Act has no application to the period of two years prescribed under sub sec. (3) of Sec. 85 of the Code of Criminal Procedure. ............. Since the attached property is at the disposal of the Government and since, I found that the power under sub sec. (3) of Sec. 85 of the Code cannot any m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the property released even within the period of two years from the date of attachment. But, as the petition itself is not maintainable, it can only be dismissed, as has been done by the courts below. Revision fails and it is dismissed. Dismissal of the petition will not affect the rights of the petitioner, if any, to approach the civil court. 10. With great respect to the learned Judges who have rendered the above cited judgments, this Court wish to state while the attachment of the accused property is made pursuant to a judicial order suggesting the aggrieved party to approach the executive for remedy is not appropriate. Vesting the property with Government to review a judicial order passed under Section 83 of the code is alien to Indian legal system. Order passed under Section 83 is subject to Section 84 and 85 of the code. The Courts are bound to consider application filed under Section 85 (3) on merits, whether notice of proclamation was properly served on the party and whether the application filed beyond the two years prescribed under the statute is explained with reasonable cause. Holding Section 5 of the Limitation Act is not applicable and to direct the aggrieved per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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