Point of law: After abscondence, if the accused surrendered and obtained bail, all the standing warrants were cancelled and the accused is no longer an absconder.

ORDER :

This a petition filed under Section 482 of Cr.P.C to quash Annexure-A4 order dated 07.03.2018 and the petitioner herein is the accused in S.T.No.4620/2019, refiled as C.C.No.1017/2017, on the files of the Judicial First Class Magistrate Court-III, Thrissur.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the 1st respondent.

3. Since, the question of lifting attachment alone is involved and the same would cause no prejudice to the complainant, who admittedly withdrawn the complaint, notice to the complainant is dispensed with.

4. In this case, prosecution alleging commission of offence under Section 138 was launched by the complainant. But the presence of the accused for trial failed to be secured.

Accordingly, the trial court proceeded under Sections 82 and 83 of Cr.P.C. and the property of the accused having an extent of 8.9 ares comprised in schedule 1/1 Sy.No.96/2 of Pullut Village was attached. Thereafter the case was included in the Long Pending register. Later, the accused surrendered before the Magistrate Court. Subsequently, the complaint was withdrawn as per Annexure-A2.

5. It is submitted by the learned counsel for the petitioner that the matter has been settled and, accordingly, the complainant withdrew the complaint and the accused was acquitted under Section 257 of Cr.P.C.

6. It is at this juncture, the present petition was filed to lift the attachment in the property of the accused. But the learned Magistrate dismissed the application holding that such a petition cannot be allowed after expiry of two years from the date of attachment referring decision of this Court in Babu M.C. v. State of Kerala and another [2011 (3) KHC 244].

7. The learned counsel for the petitioner placed decision reported in Abdul Khader v. State of Kerala [2015 (5) KHC 361], holding otherwise, where it has been held as under:

The purpose of the attachment had come to an end as was held by the Apex Court in Vimlaben(supra). Matters being so, any further enquiry is not required. When the Court below was satisfied that the petitioner had not absconded or concealed himself for avoiding execution of the warrant against him, that satisfaction itself was sufficient to release the property from attachment, in favour of the petitioner. When a formal application is not contemplated, that satisfaction itself will automatically result in the cessation of the attachment, and the property has to be delivered to such a person. The Court below shall take note of the fact that the attachment had already been ceased on 25/07/2007 itself and thereafter, there was no specific attachment in respect of the property, as the attachment became automatically lifted. Matters being so, Annexure-A2 order passed by the Court below in CMP No.1656/2013 in CP No.11/2006 is erroneous and is liable to be quashed.

8. In the above decision, this Court referred a decision of the Apex Court reported in Vimlaben Abhijitbhai Patel v. Vatslaben Ashokbhahi Patel [AIR (2008) SC 2675 : 2008 (2) KHC 396 : 2008 (2) KLT SN 10]. In Para 32 of the above decision, it was held as under:

The provisions contained in Section 82 of the Code of Criminal Procedure were put on the Statute book for certain purpose. It was enacted to secure the presence of the accused. Once the said purpose is achieved, the attachment shall be withdrawn. Even the property which was attached should be restored. The provisions of the Code of Criminal Procedure do not warrant sale of the property despite the fact that the absconding accused had surrendered and obtained bail. Once he surrenders before the Court and the standing warrants are cancelled, he is no longer an absconder. The purpose of attaching the property comes to an end.

9. In this case the Apex Court held that after abscondence, if the accused surrendered and obtained bail, all the standing warrants were cancelled and the accused is no longer an absconder. Further it was held that the purpose of attachment also c