Kerala High CourtGireeshkumar vs State Of Kerala on 25 June, 2005IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                            PRESENT:

                 THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

                FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938

                                   OP(Crl.).No. 464 of 2016 (Q)
                                      -----------------------------
 CC. NO.516/2016 FROM LP.NO.74/2005 FROM C.C. NO.321/2000 OF JUDICIAL FIRST
                            CLASS MAGISTRATE COURT-I, ALAPPUZHA.
                CRIME NO.418/1999 OF ALAPPUZHA NORTH POLICE STATION.
                                                 .......

PETITIONER(S):
-----------------------

                     GIREESHKUMAR, AGED 35,
                    S/O. RADHAKRISHNAN, THAIPARAMBIL,
                    AGP WARD-X, AMBALAPPUZHA, ALAPPUZHA.


                     BY ADV. SRI.P.SHANES METHAR.

RESPONDENT(S):
--------------------------

                     STATE OF KERALA,
                     REPRESENTED BY PUBLIC PROSECUTOR,
                     HIGH COURT OF KERALA, ERNAKULAM.


                     BY PUBLIC PROSECUTOR SRI.T.R. RENJITH.


                    THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION
                    ON 21-10-2016, THE COURT ON THE SAME DAY DELIVERED
                    THE FOLLOWING:




rs.

OP(Crl.).No. 464 of 2016 (Q)

                                 APPENDIX

PETITIONER'S EXHIBITS:-


EXHIBIT P1    TRUE COPY OF THE FINAL REPORT IN CRIME NO.418/99 OF
              ALAPPUZHA NORTH POLICE STATION, ALAPPUZHA DISTRICT.

EXHIBIT P2    TRUE COPY OF THE ORDER DATED 25-06-2005 ATTACHING
              THE PROPERTY OF THE PETITIONER.

EXHIBIT P3    TRUE COPY OF THE APPLICATION DATED 15-03-2016 SUBMITTED BY
              THE PETITIONER BEFORE THE MAGISTRATE TO RELEASE THE
              PROPERTY FROM ATTACHMENT.


RESPONDENT'S ANNEXURES:-       NIL.




                                                //TRUE COPY//


                                                P.S.TO JUDGE

rs.



             RAJA VIJAYARAGHAVAN, V., J.
            ------------------------------------------
                 O.P.(Crl) No.464 of 2016
            ------------------------------------------
           Dated this the 21st day of October, 2016


                       J U D G M E N T~~~~~~~~1.The petitioner is the 8th accused in Crime No.418 of 1999

  of Alappuzha Police Station. The offence alleged is under

  Sections 143, 147, 148 read withSection 149of the IPC

  and underSection 3(2)of the PDPP Act.         It appears that

  immediately prior to the commencement of trial, the

  petitioner absconded. The case against him was split up.

  Proceedings underSections 82and83of the Code of

  Criminal Procedure was initiated and his case was

  transferred to the list of Long Pending Cases and the same

  is now pending as L.P.No. 74 of 2005. Later, in the year

  2016, when the petitioner came on leave, he was arrested

  and produced before the learned Magistrate and the caseO.P.(Crl) No.464 of 2016      -2-was re-filed as C.C.No.516 of 2016. The petitioner was

  thereafter released on bail on 14.3.2016.      It is only

  thereafter the petitioner came to understand about the

  proceedings initiated against him underSection 82of the

  Code of Criminal Procedure. It appears that from Ext.P2,

  the learned Magistrate has authorised the District

  Collector, Alappuzha to cause the property comprised in

  Re.Sy.No.330/5-2 of the Ambalappuzha Village to be

  attached in the manner prescribed in Section 83 and to

  hold the said attachment pending further order of this

  Court.2.According to the petitioner, the order of attachment was

  not known to the petitioner and there was no proper

  publication.      He prays that Ext.P2 order passed be

  quashed and also prays that necessary directions be

  issued to the Judicial Magistrate of First Class-I,

  Alappuzha to accept Ext.P3 petition and pass appropriateO.P.(Crl) No.464 of 2016        -3-orders.3.The learned Public Prosecutor, on instructions, would

  submit that the petitioner is an absconding accused and

  upon his surrender, he is not entitled to file an application

  under Section 85(3) of the Code for release of property

  after the lapse of two years. Reliance is also placed on

  the decision of this court in Moideen v. Sub Inspector

  of Police and Another [2010(3) KLT 886] to buttress his

  contentions.4.I have considered the rival submissions and have gone

  through the materials on record.5.Admittedly, in the case on hand, the proceedings were

  initiated as against the petitioner on 25.6.2005.          In

  Moideen (supra), this Court had occasion to hold as

  follows:"18. On a proper analysis ofS.82to85of Code of Criminal Procedure, it can only
             be found that when a property is attached
             underS.83of Code of Criminal Procedure,O.P.(Crl) No.464 of 2016          -4-the    property    shall  vest    with  the
             Government from the date of attachment,
             subject to the right of any person other
             than the absconding accused as provided
             under S.84, either to file a petition within
             a period of six months from the date of
             attachment or a suit on the rejection of
             the claim or objection and also subject to
             the right of the absconding accused to get
             the property released within the period
             specified in the proclamation by his
             appearance or within a period of two
             years from the date of attachment on his
             surrender and establishing that he did not
             abscond or conceal himself and did not
             receive any notice of proclamation so as
             to enable him to appear before the Court
             within   the    period   specified  in  the
             proclamation. If the said period is over,
             an absconding accused is not entitled to
             file an application to get the property
             released under sub-section (3) ofS.85of
             Code of Criminal Procedure. The question
             whether petitioner is entitled to approach
             the Civil Court is not to be settled in this
             revision. It is also to be noted that in the
             application filed under sub-section (3) ofS.85of Code of Criminal Procedure,
             petitioner has not contended that he was
             not absconding and that he did not
             receive notice of proclamation, which are
             mandatory to get 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.O.P.(Crl) No.464 of 2016      -5-6.In view of the above binding precedent of this Court, the

  petitioner cannot be heard to contend that the petition is

  maintainable and the learned Magistrate be directed to

  pass orders on Ext.P3.    This petition fails and therefore

  the same is dismissed.     However, the dismissal of this

  petition will not affect the rights of the petitioner to

  initiate appropriate proceedings in accordance with law, if

  the same is legally permissible.Petition is disposed of.Sd/-RAJA VIJAYARAGHAVAN, V.
                                          JUDGE



Ps/21/10/16