B. KEMAL PASHA, J.

1. Annexure A2 order, by which the court below has dismissed CMP No. 1656/2013 filed by the petitioner in C.P. No. 11/2006, seeking the release of his property from the attachment effected under Section 83 Cr.P.C., is under challenge.

2. The petitioner is the 2nd accused in Crime No. 237/1992 of the Tanur Police Station. The final report was filed in the matter, for the offences under Sections 143, 147, 148, 395, 450, 427 and 295A read with Section 149 IPC and Section 3(I)(xv) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

3. The final report was taken on file by the Judicial First Class Magistrate's Court-I, Parappanangadi as C.P. No. 11/2006. As the petitioner was not available, coercive steps were taken by the court below for procuring his presence. As his presence could not be procured, steps under Sections 82 and 83 Cr.P.C. were initiated. A proclamation was issued under Section 82 Cr.P.C. Finally, an order of attachment of his property was issued by the court below under Section 82 Cr.P.C., on 05.04.2006. Consequently, the property of the petitioner was attached.

4. Thereafter, the petitioner voluntarily appeared before the court below on 25.07.2007, and moved for bail. Even though very serious offences were alleged against the petitioner and the other accused, the court below had chosen to enlarge the petitioner on bail on the same day itself. The case against the petitioner also was committed to the Court of Session. Subsequently, the Sessions Court acquitted him through Annexure A1 judgment, on 15.10.2007.

5. The petitioner has approached the court below through CMP No. 1656/2013 seeking to get the attachment lifted and to get his property delivered back to him under Section 85(3) Cr.P.C. The court below has dismissed the said CMP through Annexure A2, mainly on two grounds. According to the court below, no satisfactory evidence was adduced by the petitioner before the court below to show that the petitioner was not deliberately absconding or evading process. Further, according to the court below, the two years' time for getting the property delivered by proving to the satisfaction of the court below that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, was over and therefore, the attachment could not be lifted.

6. Heard Sri. K.K. Mohamed Ravuf, the learned counsel for the petitioner and Sri. Tom Jose Padinjarekkara, the learned Additional DGP.

7. The learned counsel for the petitioner has argued that the provisions contained in Sections 82 and 83 are not penal in nature; whereas it is meant for procuring the presence of the concerned persons before court. Further, it has been pointed out that the petitioner was enlarged on bail on the same day of his surrender on 25.07.2007 by the court below and therefore, any further satisfaction of the court below was not required in the matter within the meaning of Section 85(3) Cr.P.C.

8. Per contra, the learned Additional DGP has pointed out that if the petitioner had surrendered before the court below within the period prescribed in the proclamation, no satisfaction of the court below was called for; at the same time, in case of surrender after the period mentioned in the proclamation, within two years from the date of attachment, he has got a liability to prove to the satisfaction of the court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant. Precisely, the argument is that in order to exercise the powers conferred on the court under Section 85(3) Cr.P.C., there is a burden on the part of the concerned person to prove to the satisfaction of the court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant.

9. The learned counsel for the petitioner has invited the attention of this Court to the decision in V.G. Paterson Vs. O.V. Forbes and Others, AIR 1963 SC 692 : (1963) 1 SCR 40 Supp : (197