IMPORTANT POINTS
Two years' period has already been elapsed from the date of issuance of the order of attachment as contemplated by sub-section (2) of Section 85, the properties undoubtedly will be at the disposal of the Government.

ORDER :

Order dated 28.03.2018 passed by the Special Judicial First Class Magistrate Court (N.I. Act cases), Kozhikode (for short, 'the court below') in C.M.P.No.1427 of 2018, is sought to be quashed in the proceedings on hand. Petitioner is accused in S.T.No.2200 of 2016 filed by the second respondent before the court below under Section 142 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act').

2. C.M.P.No.1427/2018 was dismissed by the court below mainly for two reasons as follows:

(i) Satisfactory evidence was not adduced by the petitioner before the court below to show that he was not deliberately absconding or evading process.

(ii) Two years time as contemplated by Section 85 Cr.P.C for getting the property lifted from attachment has been elapsed.

3. According to Sri.J.R.Prem Navaz, the learned counsel for the petitioner, the court below is perfectly unjustified in dismissing the application seeking to lift his immovable property from attachment. According to him, Sections 82 and 83 Cr.P.C are not of penal nature and meant only for procuring the presence of the petitioner before the court. Petitioner was never absconding or concealing himself for the purpose of avoiding execution of warrant issued against him. According to him, once the petitioner surrenders before the court and non-bailable warrant pending against him stands cancelled, he cannot be treated as an absconder. The learned counsel invited this Court's attention to sub-section (3) of Section 85 Cr.P.C to contend that on moving a formal application, the properties under attachment or the sale proceeds thereof will be released to the petitioner, whose properties have been attached. According to him, the courts are bound to consider the application filed under sub-section (3) of Section 85 Cr.P.C on merits and the direction issued to approach the Government and to request for a release of the property, will amount to divesting the powers of the court. According to him, in the aforesaid circumstances Annexure A2 order dated 28.3.2018 in C.M.P No.1427/2018 in S.T. No.2200/2016 passed by the Special Judicial First Class Magistrate, (N.I. Act Cases), Kozhikode is liable to be quashed.

4. According to Sri.Prem Navaz, the learned counsel for the petitioner, the accused appeared before the court after five years of the order of attachment and that delay was not caused wilfully. According to him, he came to know about the order of attachment of the property only when the court has ordered his acquittal after facing trial and immediately he applied for lifting of the same. Thereupon, he was informed that permission from the court is required and accordingly he has applied before the Special Judicial First Class Magistrate Court (N.I Act Cases), Kozhikode, for obtaining the same by filing C.M.P No.1427/2018.

5. According to the learned counsel, when the petitioner appeared after receiving process issued against him in the prosecution on hand, he was enlarged on bail. Evidence was adduced by the complainant and the accused was examined under Section 313(1)(b) Cr.P.C. Thereafter, the case was transferred to Judicial First Class Magistrate Court II (Mobile), Kozhikode and was taken on file as S.T.No.5587/2010. On his failure to appear there, non-bailable warrant was issued against him. When he continued to remain absent, despite issuance of non-bailable warrant against him, steps under Sections 82 and 83 Cr.P.C were also ordered against him. The report of the Village Officer was obtained and on its basis, immovable property of 11.88 cents, comprised in Re.Sy.No.33/84 of Karuvanthuruthy village belonging to the petitioner was ordered to be attached on 20.02.2011 by the District Collector. Consequently, the property was attached on 18.10.2011 and ultimately the case against the petitioner was transferred to the register of long pending cases as L.P.No.7/2012. The petitioner was abroad all throughout the above proceedings of the case. He got knowledge about the proceeding