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 leaned 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) Cr.P.C and that the right of the petitioner over the property attached 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 6.03.2000. From that date, the accused started absconding. He is not available to be apprehended even now. Steps to procure the presence of the 1st 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 Cr.P.C on 3.12.02.

4. The attachment was in force and continued from 3.12.2002. The petitioner herein, a private limited company came before court on 18.11.04 with a claim petition under Section 84(1) Cr.P.C. It was contended that the petitioner came to know of the order of attachment effected on 3.12.02, only on 10.11.04 and thereafter within 8 days, the claim petition under Section 84(1) Cr.P.C was filed. The petitioner contended that long prior to the date on which the attachment was effected, a registered sale deed dated 12.4.02 was executed by the 1st respondent and his brother assigning their interest in the property to the petitioner herein. It was in these circumstances contended that on the date of the attachment (3.12.02) or after 12.4.02 (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 bared 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 in as much 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 is whether Section 5 of the Limitation Act is applicable to a petition under Section 84(1) of the Cr.P.C