Allowed

Leena Jose v. State of Kerala

Kerala HC23 Nov 2022Crl.MC/605/2013

Case brief

AI extract

What is this about?

In Crl.M.C. No.605/2013, the Kerala High Court quashed an order dismissing an application to release property from attachment under Sections 82/83 of Cr.P.C., as the petitioner had become the absolute owner through sale before proceedings commenced against the prior owner.

What did the court decide?

The application (C.M.P.No.5111/2012) is allowed and the attachment on the property is released.

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

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1944

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CRL.MC NO. 605 OF 2013

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AGAINST C.M.P.NO.5111 OF 2012 IN CC 1968/2009 [L.P.R.NO.9/2009] OF JUDICIAL MAGISTRATE OF FIRST CLASS,

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IRINJALAKUDA

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PETITIONER/PETITIONER :

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LEENA JOSE, W/O. JOSE, PALIAKARA HOUSE, 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.

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SMT.M.K.PUSHPALATHA, SR.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.605 OF 2013

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BECHU KURIAN THOMAS, J

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CRL.M.C.No.605 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.5111/2012 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 2.02 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.Jose on 22.10.2007. Sri.Jose 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.605 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.605 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.5111/2012 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 2.02 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.605 OF 2013

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APPENDIX

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PETITIONERS ANNEXURES :

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ANNEXURE-A1	COPY OF THE DOCUMENT NO.6116/2007 DATED 22.10.2007
ANNEXURE-A2	COPY OF THE DOCUMENT NO.968/2007 DATED 12.02.2007
ANNEXURE-A3	COPY OF C.M.P.NO.5111/2012 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.5111/2012 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-11, THRISSUR DATED 30.06.2009.

Leena Jose v. State of Kerala

Case brief

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Leena Jose v. State of Kerala

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