Can an absconding accused, whose property is attached under Section 83 of Code of Criminal Procedure, file an application, after the expiry of two years from the date of attachment, to release the property as provided under Section 85 of Code of Criminal Procedure, is the question to be settled in this revision.

2. The facts are not disputed. Petitioner was the sixth accused in C.C.No.129/1989 on the file of Judicial First Class Magistrate's Court-I, Kozhikode. As he was absconding and his presence could not be procured and disposal of the case against the other accused was delayed unnecessarily, learned Magistrate split up the case as against the sixth accused and re-filed it as C.C.No.283/1990. The case as against the remaining accused were proceeded and as per judgment dated 30.1.1993, those accused were acquitted of all the offences. As the presence of the petitioner could not be procured, in spite of coercive steps, C.C.No. 283/1990 was subsequently included in the long pending register, as provided under Rule 16 of Criminal Rules of Practice, after complying with the procedure provided under Sections 82 and 83 of Code of Criminal Procedure, as L.P.No.43/1994. While so, petitioner surrendered on 29.5.2000 before the Magistrate and consequently, L.P.No. 43/1994 was re-filed as C.C.No.113/2000. Petitioner was released on bail. While the case as against the petitioner was being tried, on 31.7.2000, he filed C.M.P.No.3969/2000 under sub-section (3) of Section 85 of Code of Criminal Procedure to release the property attached under Section 83 of Code of Criminal Procedure. Petitioner, in the petition, contended that his properties were attached under Section 83 of Code of Criminal Procedure and he appeared before the court on 29.5.2000 and was released on bail and therefore, the attached property is to be released. Learned Magistrate, as per order dated 31.7.2000, dismissed the petition. Petitioner challenged that order before Sessions Court along with an application to condone the delay. That application was dismissed and consequently, the appeal was also dismissed. It was challenged before this Court in Crl.R.P.No. 1080/2002. This Court set aside the order dismissing the application for condonation of delay and directed the Sessions Court to dispose the appeal on merit. Learned Sessions Judge, as per impugned judgment dated 23.9.2003, dismissed the appeal confirming the order passed by the Magistrate. It is challenged in this revision.

3. Learned counsel appearing for the petitioner argued that Sections 83 to 85 of Code of Criminal Procedure do not provide that the property attached under Section 83 of Code of Criminal Procedure would vest with the Government and sub-section (3) of Section 85 of Code of Criminal Procedure provides that even if the property attached was sold, the absconding accused is entitled to file an application to release the same and the purpose of attachment is not to punish an accused or to deny his rights in his property, but, only to secure the presence of the accused for trial and once the absconding accused surrendered before the court, the property is to be released to him. It was pointed out that the property was not sold by the Government and is still in the possession of the Government and therefore, petitioner is entitled to get the property released and dismissal of the petition is illegal.

4. Learned Public Prosecutor submitted that the property was attached as petitioner absconded and proclamation was issued under Section 82 of Code of Criminal Procedure and petitioner did not appear within the period mentioned in the proclamation and though an absconding accused, on his surrender or production before the court, is entitled to get the property released, it can only be as provided under sub-section (3) of Section 85 of Code of Criminal Procedure and such an accused has to establish that he did not abscond and he was unaware of the proclamation and such an application shall be fi