Case Note & Summary
The petitioner, Sikandar alias Shaikhlal Lalasaheb Deshinge, was an accused in a criminal case. On 16/07/1990, a proclamation under Section 82 of the Code of Criminal Procedure, 1973 (CrPC) was issued against him as he could not be found. Subsequently, on 17/08/1990, the learned Judicial Magistrate ordered attachment of his property, which was executed on 15/10/1990. The petitioner later appeared in 2012 and faced trial in Sessions Case No.204/05 before the Sessions Court, Sangli. By judgment dated 04/02/2012, the petitioner (accused No.1) and accused No.2 were acquitted of all charges, including offences under Sections 452, 342, 394, 366, 323, 506 read with 34 of the Indian Penal Code, 1860 (IPC), and the petitioner was also acquitted of the offence under Section 376 IPC. On 23/01/2014, the petitioner moved an application before the Court of Judicial Magistrate First Class (J.M.F.C.), Jat, for release of the attached property. The Magistrate, by order dated 12/03/2014, dismissed the application as not filed within the stipulated period under Section 85(3) CrPC. A separate application for condonation of delay was also dismissed. The petitioner then filed the present criminal writ petition before the Bombay High Court. The High Court observed that the attachment order under Section 82 CrPC was issued only because the petitioner was absconding. Once he appeared and faced trial, the attachment ceased to have any purpose. Moreover, after his acquittal, the attachment became completely infructuous. The Court held that the limitation under Section 85(3) CrPC does not apply in such circumstances, as the attachment order itself had lost its efficacy. The Court allowed the petition, set aside the Magistrate's order, and directed the release of the attached property to the petitioner.
Headnote
A) Criminal Procedure - Attachment of Property - Section 82, 85 CrPC - Release of Attached Property - Petitioner was absconding, proclamation under Section 82 CrPC issued and property attached in 1990 - Petitioner appeared in 2012 and was acquitted in Sessions Case - Application for release of property filed in 2014 was dismissed as time-barred under Section 85(3) CrPC - Held that once the petitioner appeared and faced trial, the attachment order ceased to operate, and after acquittal, the attachment became infructuous - The limitation under Section 85(3) does not apply when the attachment itself has lost its purpose - Court directed release of property (Paras 2-8).
Issue of Consideration
Whether the property attached under Section 82 CrPC can be released after the petitioner's acquittal, despite the application for release being filed beyond the period prescribed under Section 85(3) CrPC.
Final Decision
The High Court allowed the petition, set aside the order of the J.M.F.C., Jat dated 12/03/2014, and directed the release of the attached property to the petitioner.
Law Points
- Attachment under Section 82 CrPC ceases upon appearance of accused
- Acquittal renders attachment infructuous
- Section 85(3) CrPC limitation not applicable when attachment order itself has become infructuous
Case Details
Criminal Writ Petition No.3705 of 2017
B. P. Dharmadhikari, Sarang V. Kotwal
Megha S. Bajoria h/f K.S. Patil for Petitioner, A.S. Pai for Respondent/State
Sikandar alias Shaikhlal Lalasaheb Deshinge
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Nature of Litigation
Criminal writ petition seeking release of property attached under Section 82 CrPC after acquittal.
Remedy Sought
Petitioner sought release of his property which was attached in 1990 following a proclamation under Section 82 CrPC.
Filing Reason
The Magistrate dismissed the petitioner's application for release of property as time-barred under Section 85(3) CrPC.
Previous Decisions
The J.M.F.C., Jat, by order dated 12/03/2014, dismissed the petitioner's application for release of property as not filed within the stipulated period under Section 85(3) CrPC. An application for condonation of delay was also dismissed.
Issues
Whether the property attached under Section 82 CrPC can be released after the petitioner's acquittal, despite the application for release being filed beyond the period prescribed under Section 85(3) CrPC.
Submissions/Arguments
Petitioner's counsel argued that after the petitioner appeared and faced trial, the attachment order did not survive, and after acquittal, the attachment could not have continued. The acquittal had become final.
The APP submitted that if there was any grievance, the petitioner could file an appropriate application.
Ratio Decidendi
The attachment under Section 82 CrPC is only for securing the presence of the accused. Once the accused appears and faces trial, the attachment ceases to have any purpose. After acquittal, the attachment becomes infructuous. The limitation under Section 85(3) CrPC does not apply when the attachment order itself has lost its efficacy.
Judgment Excerpts
After hearing respective Counsel, we find that order of proclamation u/s 82 of Code of Criminal Procedure was issued against the Petitioner on 16/07/1990 when the warrant of arrest was returned without execution, as he could not be found.
It appears that thereafter Petitioner appeared in 2012 and the Sessions Court Sangli proceeded further with trial in Sessions Case No.204/05.
By Judgment dated 04/02/2012 accused Nos.1 and 2 have been acquitted of offence punishable u/s 452, 342, 394, 366, 323 and 506 r/w 34 of the Indian Penal Code.
In the present case, the attachment was only because the petitioner was absconding. Once he appeared and faced the trial, the attachment order did not survive. After his acquittal, the attachment became infructuous.
The limitation under Section 85(3) CrPC does not apply in such circumstances.
Procedural History
Proclamation under Section 82 CrPC issued on 16/07/1990; property attached on 17/08/1990, executed on 15/10/1990. Petitioner appeared in 2012; Sessions Case No.204/05 resulted in acquittal on 04/02/2012. Petitioner filed application for release of property on 23/01/2014; dismissed on 12/03/2014 as time-barred. Petitioner filed Criminal Writ Petition No.3705 of 2017 before Bombay High Court, which was allowed on 29/11/2018.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 82, 85(3)
- Indian Penal Code, 1860 (IPC): 452, 342, 394, 366, 323, 506, 34, 376
