Allowed

Francis v. State of Kerala

Kerala HC23 Nov 2022Crl.MC/598/2013

Case brief

AI extract

What is this about?

High Court allowed a criminal misc. case challenging the attachment of the petitioner's property under Sections 82 and 83 of Cr.P.C. The court held that since the petitioner acquired ownership prior to the proclamation, the attachment was illegal and ordered its release.

What did the court decide?

Annexure-A4 order set aside and attachment over the property in Re-survey No.441/4 of Ambaloor village released.

Francis Vs State of Kerala — Property and Title | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

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WEDNESDAY, THE 23^RD DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA,

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1944

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CRL.MC NO. 598 OF 2013

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AGAINST C.M.P.NO.5110/2012 IN C.C.NO.1968/2009 [LPR 9/2009] ON THE FILE OF JUDICIAL MAGISTRATE OF FIRST CLASS ,

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IRINJALAKUDA

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PETITIONER/PETITIONER:

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FRANCIS S/O. ANTHONY, VERNGADAN HOSUE, OLLUR, THRISSUR. BY ADVS. SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN

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RESPONDENT/RESPONDENT :

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STATE OF KERALA REP. BY S.I. OF POLICE PUDUKKAD, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.NOUSHAD K.A., PP

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 598 OF 2013

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BECHU KURIAN THOMAS, J

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CRL.M.C.No.598 of 2013

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Dated this the 23^rd day of November, 2022

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ORDER

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Petitioner challenges the order dated 04.10.2012 issued by the

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Judicial First Class Magistrate Court, Irinjalakuda in C.M.P.No.5110/2012 in C.C.No.1968 of 2009.

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Petitioner herein was a claimant, who had filed a petition to release

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his property from an attachment ordered on 21.10.2008 while initiating steps under Section 82 and 83 of Code of Criminal Procedure, 1973. According to the petitioner, he had purchased 2.22 Ares of property on 22.10.2007 in survey No.441/4 of Ambaloor village as per Annexure-A1 sale deed. The vendor to the said document had purchased the property from one Sri.Simon on 22.10.2007. Sri.Simon had, in turn, purchased the said property from one Sri.Pauly, on 12.02.2007, who was the first accused in C.C.No.1943/2007, which was renumbered as C.C.No.1968/2009, which arose from Crime No.368/2007 of Pudukkad Police Station.

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The claim of the petitioner is that at the time when the proceedings under Section 82 and 83 of Cr.P.C was initiated, against Sri.Pauly and other accused, petitioner herein had already become the owner and therefore her property cannot be attached in a proceeding

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CRL.MC NO. 598 OF 2013

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against the said Sri.Pauly. Though, Annexure-A3 application was filed, seeking to release the property from attachment, the learned Magistrate by Annexure-A4 common order dated 04.10.2012, dismissed the said application stating that there were series of revenue recovery proceedings existing on the property and the transfer was carried out concealing those revenue recovery proceedings.

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It is elementary that property once transferred by a registered sale deed, the title passes to the purchaser and the said property cannot thereafter be proceeded against for the dues or liability of the prior owner unless there was a subsisting charge.

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The proceedings initiated under Sections 82 and 83 of Cr.P.C., against Sri.Pauly was only on 20.10.2008 and by that time, petitioner became the absolute owner of the property. Petitioner is not a proclaimed person under Section 82 of Cr.P.C. Therefore, the property of the petitioner cannot be proceeded against under Section 82 and 83 of Cr.P.C.

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Section 83 specifically stipulates that the Court issuing a proclamation under Section 82 may, at any time after the issue of the proclamation, order the attachment of any property, belonging to the proclaimed person. Since on 22.10.2007 petitioner was the

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owner and in possession of the property and he was not a

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CRL.MC NO. 598 OF 2013

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proclaimed offender, the attachment against his property is illegal. Therefore Annexure-A4 order is incorrect and is hence liable to be set aside.

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Accordingly, I allow C.M.P.No.5110/2012 in C.C.No.1968/2009 on the files of the Judicial First Class Magistrate Court, Irinjalakuda and release the attachment over the property in Re-survey No.441/4 of Ambaloor village, having an extent of 2.22 Ares.

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This Crl.M.C.is allowed as above.

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Sd/BECHU KURIAN THOMAS JUDGE

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AMV/03/12/2022

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CRL.MC NO. 598 OF 2013

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APPENDIX

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PETITIONERS ANNEXURES :

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ANNEXURE-A1	COPY OF THE DOCUMENT NO.6119/2007 DATED 22.10.2007
ANNEXURE-A2	COPY OF THE DOCUMETN NO.967/2007 DATED 12.02.2007.
ANNEXURE-A3	COPY OF C.M.P.NO.5110/2012 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, IRINJALAKUDA DATED 26.05.2012.
ANNEXURE-A4	COPY OF THE ORDER PASSED IN C.M.P.NO.5110/2012 BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, IRINJALAKUDA, DATED 04.10.2012.
ANNEXURE-A5	COPY OF THE ORDER IN CRL.M.P.NO.19469/2008 PASSED BY JUDICIAL FIRST CLASS MAGISTRATE COURT-II, DATED 30.06.2009.

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RESPONDENTS ANNEXURES :

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ANNEXURE-1 THE	VILLAGE OFFICER'S CERTIFICATE

Francis v. State of Kerala

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Francis v. State of Kerala

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