TaxTMI 
TaxTMI 
2011 (7) TMI 1388
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....n 138 of the Negotiable Instruments Act. Learned Magistrate issued summons to the petitioner. He appeared through counsel but thereafter there was no appearance. Learned Magistrate initiated steps under Secs.82 and 83 of Code on 04-06-2003. The property (allegedly) belonging to the petitioner was attached by 05-06-2004 and on 05-07-2004 learned Magistrate received report of the Village officer to that effect. The case was included in the long pending register since in spite of coercive steps taken, presence of petitioner could not be procured. Later the dispute was settled between petitioner and the 2nd respondent. The case was refiled as CC No.35 of 2011 and by Annexure-II, order dated 03-06- 2011, learned Magistrate permitted the 2nd respondent to withdraw the complaint under Sec.257 of the Code. That resulted in the acquittal of petitioner. 3. Petitioner has filed this proceeding under Sec.482 of the Code requesting to quash the order dated 04-06-2003 issuing steps against him under Secs.82 and 83 of the Code and the order of attachment passed by the learned Magistrate in respect of the right, title and interest of petitioner in the property attached. 4. Learned Senior Adv....
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....refer to the relevant provisions of the Code. Secs. 82 and 83 of the Code empowers the Court to issue proclamation and attach property of the person who is found to have absconded. The manner of attachment of property is provided in Sec.83. In the present case learned Magistrate issued proclamation and attached property of petitioner. That attachment was completed by 05-06-2004. Petitioner did not appear in Court either voluntarily or was brought before court within two years from 05-06-2004. It was on 03-02-2011 that on the basis of an out of Court settlement 2nd respondent withdrew the complaint and petitioner was acquitted under Sec. 257 of the Code. Section 85 of the Code deals with release of attachment and restoration of property attached. Under sub sec. (2) of Sec. 85, if the proclaimed person does not appear within the time specified in the proclamation the property under attachment shall be "at the disposal of the State Government", but the property is not to be sold by the State Government until expiration of six months from the date of attachment and until any claim preferred or objection made under Sec.84 has been disposed of under the said provision; unless the propert....
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.... restoration of the property on the contemnor's death." 9. I am afraid, the said observations do not apply to the facts of the present case. Observations made in a judgment is not to be blindly followed in every case, for, a decision is authority for the case it decides and the question whether a decision has application in another case should depend on the facts of that case. The above quoted observations are not made in relation to sub sec. (3) of Sec.85 of the Code. In a latter decision Vimalben Ajitbai Patel v. Vatslabeen Ashokbhai Patel (2008 (2) KLT SN 9 (Case No.10) also the Supreme Court has observed that once the accused surrenders, steps are to be recalled, but, that decision also did not relate to the scope and application of sub sec. (3) of Sec. 85 of the Code. A learned Judge of this Court in Moideen V. Sub Inspector of Police (2010 (3) KLT 886) held with reference to sub sec.(3) of Sec.85 of the Code that for the said provision to apply, two mandatory conditions are to be satisfied; that the person proclaimed must have appeared voluntarily or was brought before Court within two years of the date of attachment and; he must prove to the satisfaction of the Court ....
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....inst an order passed by the learned Magistrate dismissing a claim petition filed by the petitioner under S.84 (1) of the Code of Criminal Procedure." 12. The ratio of that decision is only that under sub sec.(1) of Sec.84 of the Code is subject to Secs. 4 to 24 of the Act. I am unable to accept that the period of two years mentioned in sub sec.(3) of Sec.85 of the Code is a period of limitation for an application by the proclaimed person so that, question of application of Secs. 4 to 24 of the Act would arises. Instead, it is one of the twin conditions the person proclaimed has to satisfy for release of property/sale proceeds under sub sec.(3) of Sec.85. This is clear from sub sec.(1) of Sec.84 of the Code. Section 84, as aforesaid deals with claims or objections by persons other than the proclaimed person who claims to have an interest in the property attached. Sub sec.(1) of Sec.84 (1) of the Code says. "(1) If any claim if preferred to, or objection made to the attachment of, any property attached under section 83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an int....
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....lication' (preferred under sub sec. (3) of Sec.85) but only says about the right of a person aggrieved "by any refusal to deliver the property or the proceeds of the Sale thereof" to appeal. The expression "application" (referred to in the heading of Sec.86) can mean an objection to a Court; the request to a judicial officer; or the act of making or preferring a request. Hence, the expression "application" referred to in the heading of Sec.86 can equally mean a request made by the proclaimed person to the Court under sub sec.(3) of Sec.85 of the Code. No doubt, in the case of ambiguity the heading or marginal note to the Section could be an aid in the interpretation of the provision but it cannot override or control the provision itself. It is relevant to refer to the decision of the Supreme Court in Chellamma Huchha Gowda v. M.R. Tirumala and another (2004) 1 SCC 453), where though in relation to an application to set aside the sale under order 21 Rule 89 of the Code of Civil Procedure it was held that the Rule does not provide that the application has to be in a particular form and that even a memo with a prayer to set aside the sale is sufficient. In Butta Singh v. Emperor (....
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....ibetur, prohibetur at omne quod devenitur ad illud" (whatever is prohibited by law to be done directly cannot legally be effected by an indirect or circuitous contrivance) must apply. The Supreme Court in Dharmatma Singh V. Harminder Singh and others (2011) 6 SCC 102 has reiterated that the inherent power under sec.482 of the Code cannot be exercised in regard to matters specifically covered by other provisions of the Code. 18. In the view of what I have stated above the questions urged are answered as under (i) merely because the complaint against an accused is withdrawn by the complainant and the accused is consequently acquitted, he cannot after the expiry of two years from the date of attachment of his property, request to lift the attachment and release the property. (ii) Section 524 of the Limitation Act has no application to the period of two years prescribed under sub sec.(3) of Sec.85 of the Code of Criminal Procedure. 19. But that does not leave petitioner without any remedy at all. Referring to sub sec.(2) of Sec.85 of the Code I stated that on the happening of the contingency referred therein the property attached "shall be at the disposal of ....