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2008(1) Bankmann 107
KERALA HIGH COURT
R. Basant, J.
Pharma Kuries (P) Ltd. —Petitioner
versus
Soju —Respondent
Criminal R.P. No. 2037 of 2006
Decided on 30.8.2006
Held: Having carefully gone through all the stipulations, I am satisfied that even though special procedure is stipulated as to how such claims are to be considered and special periods of limitations is prescribed under Sections 84(1), 84(4) and 85(3), there is nothing which can justify a conclusion, notwithstanding the insistence on “express exclusion” under Section 29(2) of the Limitation Act that by necessary intendment, even in the absence of an express stipulation for exclusion, Sections 4 to 24 must be held to be not applicable. The learned Counsel for the 2nd respondent has placed reliance on the decisions in Panchu Gopal Mallik & Another v .The State & Anr., 1955 Cri L.J. 1343, to contend that identical provisions in the CrPC prior to its amendment in 1973 were held by the Calcutta High Court to constitute a complete Code regarding claims against attachment by the offender and other claimants.
The said decision does not at all consider the play of Section 29(2) which statutory provision was not in force at the relevant time. The precise question as to whether provisions in the Code prior to amendment would indicate express exclusion of Sections 4 to 24 did not come up for consideration before the Calcutta High Court in the said decision even impliedly or incidentally. I am in these circumstances satisfied that the language employed, scheme, purpose and object of the stipulations in Sections 83 to 86 do not at all justify a conclusion that the application of Sections 4 to 24 as mandated under Section 29(2) is not permissible or possible while considering the claims against attachment by the indicatee as also those claiming rights over the property. (Paras 22 & 23)
That leads us to the next question whether in the absence of a specific application under Section 5, the Court below was obligated to or could/should have condoned the delay in filing the claim petition. This Court in Nadubhagom N.S.S. Karayogam v. Gopalan Nair, 1979 KLT 166 (Division Bench) and Arya R. & A. Co. v. State of Kerala, 1986 KLT SN3 C. No. 4, has clearly held that it is not necessary to insist on a formal application. But I must alertly note that the prayer is not for exclusion of any period but for extension of the period of limitation under Section 5. Where extension and not exclusion is claimed, it will certainly be for the person claiming such exclusion to strictly establish all relevant facts before the Court. The rules of natural justice further insist and mandate that the adversary must also be given opportunity to take note of the specific contentions on the basis of which extension of the period of limitation under Section 5 is claimed. He must also be given opportunity to controvert the assertions, substantive his contentions and to prove the contra. In these circumstances, except in exceptionable cases where factual disputes are not there or factual disputes can be resolved without any detailed inquiry, it will only be reasonable to insist on a proper application under Section 5. In the facts and circumstances of this case, even though the crucial assertion is made that the petitioner did not have knowledge of the attachment. I am satisfied that the petitioner must be directed to file a proper application under Section 5 narrating all relevant circumstances so that the Court can consider whether the delay is liable to be condoned under Section 5. (Para 24)
Result: Revision allowed accordingly.
R. Basant, J.—Is Section 5 of the Limitation Act applicable at all to a claim petition under Section 84(1) of the Code of Criminal Procedure? This is the question of law raised in this revision petition directed against an order passed by the learned Magistrate dismissing a claim petition filed by the petitioner under Section 84(1) of the Code of Criminal Procedure.
2. The learned Magistrate dismissed the application on two grounds, namely the application has not been filed within the period of 6 months as stipulated in Section 84(1), Criminal Procedure Code and that the right of the petitioner over the property has not been satisfactorily established.
3. To the skeletal facts first. A complaint was filed by the 2nd respondent herein against the 1st respondent alleging commission of an offence punishable under Section 138 of the N.I. Act. The complaint was filed in 1997. Long later after completing all proceedings, the matter came up for judgment on 6.3.2000. From that date, the accused started absconding. He is not available to be apprehended even now. Steps to procure the presence of the respondent were taken by the learned Magistrate and an item of property over which he has rights was attached by the Court as per order passed under Section 83 of the CrPC on 3.12.2002.
4. The attachment was in force and continued from 3.12.2002. The petitioner herein, a private limited company came before Court on 18.11.2004 with a claim petition under Section 84(1), CrPC. It was contended that the petitioner came to know of the order of attachment effected on 3.12.2002, only on 10.11.2004 and thereafter within 8 days, the claim petition under Section 84(1), CrPC was filed. The petitioner contended that long prior to the date on which the attachment was effected, a registered sale deed on which the attachment was effected, a registered sale deed dated 12.4.2002 was executed by the 1st respondent and his brothers assigning their interest in the property to the petitioner herein. It was in these circumstances contended that on the date of the attachment (3.12.2002) or after12.4.2002 (the date of the sale deed) the 1st respondent or his brothers had no right over the property attached.
5. The application was opposed by the complainant 2nd respondent. He raised the plea of limitation. He further contended that it was a collusive document executed between the absconding 1st respondent and the petitioner and that the said document cannot be said to have conferred any rights on the petitioner herein.
6. The Court below did not collect any oral evidence. Exts. C1 to C3 were marked before the Court below.
7. The learned Magistrate had proceeded to consider whether the belated application which has not been filed within a period of 6 months from the date of attachment is barred by limitation. That point was answered against the petitioner. Even though it was found to be barred by limitation, the Court below appears to have tentatively considered the question whether the petitioner has rights over the property attached. Even though the title deed was produced and marked and the same was executed long prior to attachment, the Court below appears to have taken the view that the document cannot be held to confer any rights on the petitioner inasmuch as mutation, etc; in pursuance of Ext. C1 were not shown to have been effected promptly and contemporaneously with Ext. C1.
8. The learned Counsel for the petitioner, the learned Counsel for the 2nd respondent as also the learned Public Prosecutor have been heard. The
questions that arise for consideration are:
(i) Whether the delay in filing the petition under Section 84(1), Cr.P.C. is liable to be condoned by invoking the powers under Section 5 of the Limitation Act.
(ii) Whether the Court below was justified in coming to the conclusion, in spite of production of Ext. C1, that the petitioner’s right and title in the property attached have not been established.
9. The first and the crucial question
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