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2024 Supreme(All) 1077
IN THE HIGH COURT OF ALLAHABAD
HON'BLE ABDUL MOIN, J.
Faiyaz Abbas – Appellant
Versus
State Of U.P. Thru. Prin. Secy. Home Lko. And Another – Respondents
Criminal Appeal No. - 194 of 2024
Decided on : 18-07-2024
Advocate Appeared:
For the Appellant : Mohd. Kumail Haider, Bal Keshwar Srivastava, Ravi Patel
For the Respondent:-G.A.
IMPORTANT POINT
An attachment order under Section 83 of the Criminal Procedure Code can only be issued for property that belongs to the proclaimed person, and the court must ascertain ownership before issuing such an order.
Headnote:
CRIMINAL PROCEDURE - ATTACHMENT OF PROPERTY - Section 82, Section 83, Section 84 of the Criminal Procedure Code - The court discussed the provisions of Sections 82, 83, and 84 of the Criminal Procedure Code, emphasizing that property can only be attached if it belongs to the proclaimed person. The court interpreted Section 83 to mean that an attachment order requires a finding that the property belongs to the accused. The court found that the lower court erred in not considering ownership and affirmed that the attachment of the appellant's property was improper.
Fact of the Case:
The appellant, Faiyaz Abbas, challenged the order of the Special Judge, POCSO Court, which rejected his application under Section 84 of the Criminal Procedure Code against an attachment order under Section 83. The attachment was based on an FIR lodged against his son, Faiz Abbas, and the appellant claimed ownership of the attached property through a will.
Finding of the Court:
The court found that the lower court failed to consider the ownership of the property, which belonged to the appellant and not to the accused. The court emphasized that the attachment order under Section 83 could only apply to property belonging to the proclaimed person.
Issues: Whether the property attached under Section 83 of the Criminal Procedure Code belonged to the accused, and whether the lower court erred in its interpretation of the law regarding property attachment.
Ratio Decidendi: The court held that for an attachment order under Section 83 to be valid, there must be a finding that the property belongs to the proclaimed person. The court reiterated that the law must be followed as prescribed, and the attachment of property not belonging to the accused is impermissible.
Final Decision: The appeal was allowed, and the orders of attachment and the rejection of the appellant's objections were set aside.
JUDGMENT :
Hon'ble Abdul Moin, J.
1. Rejoinder affidavit filed today is taken on record.
2. Heard Shri Bal Keshwar Srivastava, learned counsel for the appellant as well as Shri Angad Vishwakarma, learned A.G.A. for the State-respondent(s).
3. The instant criminal appeal has been filed under Section 86 of the Criminal Procedure Code (hereinafter referred to as "Code") challenging the order dated 12.07.2023, a copy of which is annexure 3 to the appeal, passed by learned Special Judge, POCSO Court No.2, Lucknow. By the said order, the application filed by the appellant under Section 84 of the Code has been rejected.
4. The short facts as urged by the learned counsel for the appellant is that an F.I.R. had been lodged by Saiyyad Ali Hasan against Faiyaz Abbas (the appellant herein), Faiz Abbas (the son of the appellant) and Smt. Guddo (the wife of the appellant). The F.I.R. was lodged on 28.11.2015 under the provisions of Section 3 & 4 of POCSO Act as well as under Sections 323, 328, 363, 376, 504 & 506 of I.P.C.
5. As the authorities were unable to ensure the appearance of Shri Faiz Abbas, the son of the appellant, consequently an order under Section 82 of the Code dated 12.01.2023, a copy of which is annexure 4 to the appeal, was passed. Subsequently, an order dated 06.02.2023, a copy of which is part of annexure 4 to the appeal, was also passed under Section 83 of the Code whereby the property of the appellant herein was attached which is said to be the house of the appellant.
6. As the house belongs to appellant herein, namely, Shri Faiyaz Abbas, he filed his objections under Section 84 of the Code specifically pointing out that the appellant is the sole owner of the house by way of a will, and that his son namely Faiz Abbas has got nothing to do with the house and as the appellant is living in the house, consequently, the attachment order be set aside.
7. The learned court, vide order impugned dated 12.07.2023, after considering the objections filed by the appellant indicating the aforesaid, was of the view that while deciding the objections under the provisions of Section 84 of the Code, the court is not required to decide the dispute pertaining to the ownership of the house and that as the accused Faiz Abbas is only residing in two rooms of the entire house, consequently, the order of attachment under Section 83 of the Code has correctly been passed and therefore, the objections filed by the appellant have been rejected.
8. Being aggrieved, the instant appeal has been filed.
9. The argument of the learned counsel for the appellant is that the provision of Section 83 of the Code categorically provides that an attachment order can be passed for the property belonging to the proclaimed person who does not appear. Thus, the contention is that sine-qua-non to an order being passed under the provision of Section 83 of the Code is a finding, may be prima facie, to the effect that the property being attached belongs to the accused and without recording of such a finding in this regard, the property of a third person, may be in this case belonging to the father of the accused namely the appellant, could not have been attached. He also contends that despite the objections in this regard being filed, the learned court has patently erred in law in affirming the order of attachment passed under the provisions of Section 83 of the Code solely on the ground that the accused is residing in two rooms of the entire house and as such, it was within the power of the authority concerned, while issuing the order under Section 83 of the Code, to have directed for attachment of the property. He thus contends that the order impugned merits to be set aside.
10. On the other hand, learned A.G.A. on the basis of averments contained in the counter affidavit argues that the F.I.R. has been lodged in the year 2015 against the accused Faiz Abbas, the appellant herein and the wife of appellant and thus there is no illegality and infirmity which has been committed by
