Important points:
The requirement of a written application would arise only on lapse of two year period made mentioned in Section 85(3) Cr.P.C. and failure to arrest the accused or non-appearance of accused within that period. What is relevant is whether the accused was arrested within two years or voluntarily appeared within that time and proved to the satisfaction of the court that there is no wilful absence. If he was released on bail on his arrest or appearance, on satisfaction of sufficient reason for his non appearance, it would be a sufficient ground to exercise the jurisdiction under Section 85(3) Cr.P.C. for releasing the property, that too, without any application.

ORDER :

Steps were initiated under Sections 82 and 83 Cr.P.C. against the accused by attaching the property having an extent of 11 cents comprised in Re-survey No.173/8 in Block-II of Pavithreswaram village. Subsequently, he surrendered before the Court and ended in acquittal after trial. It is thereafter on 13.3.2007, he passed away. The unmarried daughter of the deceased submitted a petition under Section 85 Cr.P.C. for lifting the attachment. That petition was dismissed as barred by limitation even without tracing the case records by the learned Magistrate.

2. The learned Judicial First Class Magistrate I, Kollam had not even traced out the case file so as to satisfy whether the accused had appeared within a period of two years from the date of attachment and enlarged on bail on his appearance, but dismissed the petition on the ground of bar of limitation.

3. Section 85 Cr.P.C. is extracted below for reference:

“85. Release, sale and restoration of attached property.-

(1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment.

(2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government; but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under section 84 has been disposed of under that section, unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner; in either of which cases the Court may cause it to be sold whenever it thinks fit.

(3) If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub-section (2), appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale, and the residue of the property, shall, after satisfying there from all costs incurred in consequence of the attachment, be delivered to him.” (emphasis supplied)

4. The expression “the property under attachment shall be at the disposal of the State Government” incorporated in Section 85(2) Cr.P.C. always would stand subject to the application of Section 85(3) Cr.P.C. and the conditions enumerated therein. The expression 'shall be at the disposal of' pertaining to the property under attachment is not absolute, but subject to the contingencies enumerated under Section 85(3) Cr.P.C.. This might be the reason why the legislature has in its wisdom incorporated the expression “shall be at the disposal of the State Government” with respect to the property under attachment, instead of using the word “shall vest with the State Government” or incorporating a clause extinguishing the right, title and interest of the accused over the property. The mandate under Section 85(3) Cr.P.C. is that if within two years from the date of attachment, the accused appears voluntarily or is apprehended and brought before the Court by whose order the property was attached or the court to which such court is subordinate and proves to the satisfaction of such court that (1) he did not abscond or conceal himself for the purpose of avoiding execution of warrant and that (2) he had no such notice of proclamation so as to enable him to attend within the time specified therein, the property attached or its sale proceeds after deducting the expenses incurred in conse