Revision petition sought to lift property attachment imposed due to accused's abscondence. Court held that proceedings abated as accused was presumed dead per Section 108 Evidence Act, thus attachment lifted despite Section 85(3) Cr.P.C. bar.
The attachment over the petitioner's father's property is declared abated and lifted.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 16TH DAY OF JUNE 2023 / 26TH JYAISHTA, 1945
CRL.REV.PET NO. 41 OF 2021
AGAINST THE ORDER/JUDGMENT IN SC 460/2006 OF ADDITIONAL DISTRICT
COURT & SESSIONS COURT - VI, KOLLAM/ V ADDL.MACT
REVISION PETITIONER/S:
SAJEEV
AGED 42 YEARS
S/O.LEKSHMANAN, MUNAVELIL VEEDU, SOORANADU VILLAGE,
KOLLAM DISTRICT.
BY ADVS.
C.RAJENDRAN
SRI.B.N.HASKAR
RESPONDENT/S:
THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
OTHER PRESENT:
PP M.C.ASHI
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 16.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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CRL.REV.PET NO. 41 OF 2021
O R D E R
Dated this the 16th day of June, 2023
The revision petitioner’s father Lekshmanan was the accused in Crime No.65/2003 of Sooranad Police Station registered for offences punishable under Section 55(A) and (H) of Abkari Act. He was arrested and granted bail after committal of the case to the Sessions Court. Therein the case was numbered as S.C No.460/2006. After he was enlarged on bail, Lekshmanan failed to appear in court, resulting in proceedings under Sections 82 and 83 of Cr.P.C being initiated. In that proceedings, the immovable property belonging to Lekshmanan was attached on 16.06.2009. The whereabouts of Lekshmanan was not known to the petitioner or his other relatives from 02.04.2008 onwards. Therefore, the police was informed and Crime No.2021/2008 under the caption man missing was registered at Sooranad Police Station. After detailed investigation the Police filed UN (Un detected) report before the court. As the whereabouts of the accused was not known for more than seven years, a certificate issued by the Sub Divisional Magistrate, stating Lekshmanan is missing for the past eight years and that fact is certified under Section 108 of the Evidence Act (‘the Act’ for short)
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CRL.REV.PET NO. 41 OF 2021
in view of the bar contained under Section 85(3) of the Cr.P.C. Hence this revision petition.
4.Indisputably, the bar under Section 85(3) prohibits lifting of attachment over properties after three years. In the case at hand, the property was attached way back on 16.06.2009. As such, under normal circumstances, no question of lifting the attachment arises. In this regard it is pertinent to note that the accused, whose abscondence had resulted in the property being attached, is presumed to be dead based as per Section 108 of the Act. This court in Kumaran v. Muriyad Service Co-operative Bank, Thrissur and Another [2010 (2) KHC
229] , has held that an attachment under Sections 82 and 83 subsists only as long as the accused is alive and the proceedings will abate and the attachment get automatically lifted, on the death of the accused. Insofar as the Sub Divisional Magistrate has issued a certificate under Section 108 of the Act, certifying that the whereabouts of Lekshmanan not know for the past eight years, the presumption is that Lekshmanan is not alive. Being so, the dictum in Kumaran (supra) would apply and the proceedings stand abated that the accused Lekshmanan is presumed to be death, his whereabouts not being known for the past eight years, the dictum in Kumaran (supra) would apply and the
CRL.REV.PET NO. 41 OF 2021
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proceedings stand abated.
The attachment brought over Lekshmanan’s property, pursuant to his abscondence in S.C No.460/2006 of the Additional District and Sessions Judge-VI, Kollam, is declared as abated. Consequently the attachment stands lifted.
Sd/V.G ARUN JUDGE
SJ
3 issues framed by the court
Whether the statutory bar under Section 85(3) of Cr.P.C. prevents lifting attachment after three years.
Whether proceedings under Sections 82 and 83 Cr.P.C. abate when the accused is presumed dead under Section 108 of Evidence Act.
Whether attachment of property abates automatically when accused is presumed to be dead due to missing for eight years.
Colour shows how this judgement treated each authority
Kumaran v. Muriyad Service Co-operative Bank, Thrissur and AnotherApplied¶24
[2010 (2) KHC 229]
4 provisions across 3 enactments
Sajeev
The State of Kerala
V.G. Arun
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court