IMPORTANT POINT
Whatever is prohibited by law to be done directly cannot legally be effected by indirect or circuitous contrivance.

Thomas P. Joseph, J.—Questions urged for a decision are:

(i) Whether an accused against whom the complaint was withdrawn by the complainant and consequently was acquitted, could even after expiry of two (2) years from the date his property was attached seek release of attachment and restoration of the property, under sub sec.(3) of Sec.85 of the Criminal Procedure Code (for short “the Code”) ?

(ii) Whether, Section 4 to 24 of the Indian Limitation Act, 1963 (for short “the Act” would apply to the period of two years mentioned in sub-section (3) of Section 85 of the Code?

2. A resume of facts is necessary for decision of the question. The 2nd respondent filed a complaint before learned Judicial First Class Magistrate-II, Aluva alleging that petitioner committed offence under Section 138 of the Negotiable Instruments Act. Learned Magistrate issued summons to the petitioner. He appeared through counsel but thereafter there was no appearance. Learned Magistrate initiated steps under Sections 82 and 83 of Code on 4.6.2003. The property (allegedly) belonging to the petitioner was attached by 5.6.2004 and on 5.7.2004 learned Magistrate received report of the Village officer to that effect. The case was included in the long pending register since in spite of coercive steps taken, presence of petitioner could not be procured. Later the dispute was settled between petitioner and the 2nd respondent. The case was re-filed as CC No. 35 of 2011 and by Annexure-II, order dated 3.6.2011, learned Magistrate permitted the 2nd respondent to withdraw the complaint under Section 257 of the Code. That resulted in the acquittal of petitioner.

3. Petitioner has filed this proceeding under Section 482 of the Code requesting to quash the order dated 04-06-2003 issuing steps against him under Sections 82 and 83 of the Code and the order of attachment passed by the learned Magistrate in respect of the right, title and interest of petitioner in the property attached.

4. Learned Senior Advocate has contended that while acquitting petitioner, learned Magistrate has not issued any direction regarding release of the property, by the disposal of the case learned Magistrate has become functus officio and hence petitioner has approached this Court requesting to exercise its power under Section 482 of the Code. Learned Senior Advocate argued that the purpose of initiating steps under Sections 82 and 83 of the Code is to procure presence of the proclaimed person before Court, the purpose in the present case is served by Annexure-II, order dated 3.6.2011 whereby the complaint was withdrawn and petitioner was acquitted. Hence, it is no longer necessary to retain attachment over the property. Learned Senior Advocate has invited my attention to the decision of the Supreme Court in Mrs. V.G. Peterson v. O.V. Forbes and. another.1 It is also argued that petitioner has only a fractional interest in the property attached since it is ancestral property over which his brother and sisters also have right. In the circumstances, it is argued that for the. ends of justice this Court could pass an order setting aside proceedings of learned Magistrate under Sections 82 and 83 of the code attaching the property and direct release of the said property to the petitioner. Learned Senior Advocate submitted that the Government has not so far disposed of the property.

5. Learned Public prosecutor submitted that so far as release of attachment and restoration of property are concerned, the Code specifically provides remedy under Section 8S and in such circumstances petitioner had to avail the remedy under the said provision. Petitioner ought to have appeared before the learned Magistrate within two years of the date of attachment and proved that he had not absconded or concealed himself for the purpose of avoiding execution of the warrant and that he had no notice of proclamation to enable him attend the Court within the time specified therein. Petitioner having not done that he