Allowed

Annie Varghese v. State of Kerala

Kerala HC23 Nov 2022Crl.MC/604/2013

Case brief

AI extract

What is this about?

The High Court held that property transferred via registered sale deed before proclamation issuance cannot be attached under Cr.P.C. Sections 82 and 83 against a prior owner's dues. The court allowed the criminal miscellaneous petition quashing the attachment order released the property.

What did the court decide?

C.M.P. No. 5113/2012 allowed; attachment over property in Re-survey No. 441/4 of Ambaloor village released.

Annie Varghese 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. 604 OF 2013

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AGAINST C.M.P.NO.5113/2012 IN C.C.NO.1968/2009 [L.P.R.9/2009] ON THE FILES OF JUDICIAL MAGISTRATE OF FIRST CLASS

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IRINJALAKUDA

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PETITIONER/PETITIONER:

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ANNIE VARGHESE W/O. VARGHEESE, PALIAKERA, OLLUR VILLAGE, 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 PROSEUCTOR, HIGH COURT OF KERALA, ERNAKULAM.

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PP SRI.NOUSHAD K.A

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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. 604 OF 2013

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BECHU KURIAN THOMAS, J

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......…..................................

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CRL.M.C.No.604 of 2013

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….................................. Dated this the 23rd day of November, 2022

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ORDER

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Petitioner challenges the order dated 04.10.2012 issued by

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the Judicial First Class Magistrate Court, Irinjalakuda in C.M.P.No.5113/2012 in C.C.No.1968 of 2009.

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Petitioner herein was a claimant, who had filed a petition to release her 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, she had purchased 2.63 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.Pauly on 12.02.2007. The said Sri.Pauly 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

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CRL.MC NO. 604 OF 2013

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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 in possession of the property and therefore her property cannot be attached in a proceeding 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 the 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.

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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

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CRL.MC NO. 604 OF 2013

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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. 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 20.10.2008 petitioner was the owner and

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in possession of the property and she was not a proclaimed offender, the attachment against her 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.5113/2012 in

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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 2.63 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/30/11/2022

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CRL.MC NO. 604 OF 2013

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APPENDIX

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PETITIONERS ANNEXURES :

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ANNEXURE-A1	COPY OF 22.10.2007	THE	DOCUMENT NO.6118/2007 DATED
ANNEXURE-A2	COPY OF 12.02.2007	THE	DOCUMENT NO.969/2007 DATED
ANNEXURE-A3	COPY OF JUDICIAL IRINJALAK	C.M.P.N FIRST UDA DA	O.5113/2012 ON THE FILE OF THE CLASS MAGISTRATE COURT, TED 26.05.2012
ANNEXURE-A4	COPY OF BY THE J IRINJALAK	THE OR UDICIAL UDA, D	DER PASSED IN C.M.P.NO.5113/2012 FIRST CLASS MAGISTRATE COURT, ATED 04.10.2012.
ANNEXURE-A5	COPY OF PASSED B COURT-11,	THE Y JU THRISS	ORDER IN CRL.M.P.NO.19469/2008 DICIAL FIRST CLASS MAGISTRATE UR DATED 30.06.2009.

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RESPONDDENTS ANNEXURES :

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ANNEXURE – R1 COPY OF THE VILLAGE OFFICER'S CERTIFICATE

Annie Varghese v. State of Kerala

Case brief

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Annie Varghese v. State of Kerala

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