SABU Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER was an accused in C.C. No.556 of 2005 of the court of learned Judicial First Class Magistrate-I, Aluva. Allegedly because petitioner absconded, learned Magistrate initiated steps under Sections 82 and 83 of the Code of Criminal Procedure (for short, "the Code") and certain property was placed under attachment. C.C.No.556 of 2005 was ultimately disposed of by the learned Magistrate by Annexure-B, order dated 16.01.2008 under Section 320(8) of the Code. In the year 2010, petitioner filed C.M.P.No.1038 of 2010 (in C.C.No.556 of 2005) claiming release of property attached. That petition was dismissed by the learned Magistrate as per Annexure-C, order dated October 4, 2010 holding that property was attached on 08.08.2002 and that petitioner/accused has no right to get the property released from attachment after two years from the date of attachment in the light of the decision in Moideen v. Sub Inspector of Police (2010 (3) KLT 886 = 2010 (3) KLJ 112). Learned counsel contends that learned Magistrate was not correct in dismissing C.M.P.No.1038 of 2010. Learned counsel pointed out that it is not in the capacity as accused or that the property belonged to him at the time of attachment that he has preferred C.M.P.No.1038 of 2010. According to the petitioner, property in question at the time of attachment belonged to his father, that property was not liable to be attached and the claim made in C.M.P.No.1038 of 2010 is as a legal heir of his deceased father to whom the property belonged. Learned counsel contends that in such circumstances the claim came under Section 84 of the Code and the decision relied on by learned Magistrate only dealt with a claim preferred by the accused under Section 85(3) of the Code which has no application. I have heard learned Public Prosecutor also.

(2.) SECTION 84 of the Code deals with claims and objections at the instance of any person other than the proclaimed person on the ground that claimant or objector has an interest in the property and such interest is not liable to be attached under SECTION 83 of the Code. In the present case it is true that petitioner was accused in C.C.No.556 of 2005 but, presently he fills up a different character, as legal heir of his deceased father to whom according to him the property belonged and who was entitled to make a claim under SECTION 84 of the Code. The decision referred supra did not refer to a claim or objection made any person other than the proclaimed person. Hence in the light of the claim made by petitioner as legal heir of his deceased father to whom property allegedly attached belonged, the view taken by learned Magistrate that in view of the decision in Moideen's case (referred supra) C.M.P.No.1038 of 2010 filed after two years of the attachment cannot be sustained, is not correct.

(3.) READING Section 84(1) of the Code it appears to me that the person other than proclaimed person has to make any claim or prefer objection. Necessarily it has to be in writing. If that be so, in the absence of any indication to the contra, Sections 4 to 24 of the Limitation Act can apply. Learned Magistrate is entitled to entertain a claim or objection made under Section 84(1) of the Code by any person other than the person proclaimed or his legal heir even after the period prescribed and condone the delay on showing sufficient cause. But, if by the time the claim or objection is made the property which is at the disposal of the Government is already disposed of, then right of the claimant or objector who comes to the court after six months with an application for condonation of delay is only to get the sale proceeds less the expenses incurred by the State Government for maintenance of the property. I am inclined to agree with the view of learned Judge in Pharma Kuries (P) Ltd. v. Soju to the extent the decision concerned a claim or objection preferred under Section 84 of the Code. Resultantly this Criminal Miscellaneous Case is allowed. Annexure-C, order dated October 4, 2010 on C.M.P.No.1038 of 2010 in C.C.No.556 of 2005 of the court of learned Judicial First Class Magistrate-I, Aluva is set aside. C.M.P.No.1038 of 2010 is remitted to the court of learned Magistrate for fresh disposal after giving petitioner an opportunity to seek condonation of delay under Section 5 of the Limitation Act as held in Pharma Kuries (P) Ltd. v. Soju (referred supra). I make it clear that if ultimately the claim/objection of petitioner that property belonged to his father and hence was not liable to be attached is accepted, relief which the petitioner would get depend on the question whether the property has already been disposed of by the State Government. If the property has already been disposed of, entitlement of petitioner is to get the sale proceeds less the expenses incurred by the State Government for maintenance/sale of the property. Learned Magistrate shall also ensure that all the legal heirs of deceased father of petitioner are given notice of C.M.P.No.1038 of 2010 to avoid future claims and disputes.