Jurisdiction to pass attachment order cannot be assumed unless a proclamation under section 82 Cr.P.C has been issued.: High Court of Karnataka

Property of the absconder can be attached anytime after the non-appearance of the accused in pursuance of a proclamation, it may, however, be advisable to wait for a period of 30 days from the date on which the accused was required to appear. SRI. NITHYA SHAMBHAVANANDA V. STATE OF KARNATAKA[WRIT PETITION NO.10076 OF 2020 (GM-RES)] in the High Court of Karnataka single bench consisting of JUSTICE SURAJ GOVINDARAJ.

Facts are that the petitioner is the owner of the property through a sale deed executed by POA of Sheelam Gopal Reddy, who is accused in an open case. The trial is taking place before Addl. Sessions Judge, who had ordered the attachment of the petitioner’s property under S.83 of Cr.P.C. An application was filed by the petitioner under S.84 of Cr.P.C, which was rejected. Thus petitioner has filed a writ of certiorari.

The counsel for the petitioner contended the accused had not been proclaimed as an absconder. The property does not belong to the accused person and cannot be attached in a criminal case for the purpose of securing the appearance. The petitioner is in possession, occupation, and enjoyment of the aforesaid property. And that the order suffers from severe legal infirmities and should be set aside.

The prosecution contended that proclamation that there was no hurdle to invoke S.83 of the Cr.P.C, the court had directed the attachment of immovable property owned and possessed as on that date by the accused Gopal Sheelam Reddy and passed the impugned order.

The Court discussed when can a property of the accused be attached under Section 83 of the Cr. P.C and made reference to judgement in Devendra Singh v State of U.P., the court observed that “Section 82 and section 83 are to be read in harmony. Thus, except in cases covered by the proviso to section 82(1) the attachment order has to maintain a distance of not less than thirty days from the date of the publication under section 82. The word at any time in section 83(1) only mean that if after the issue of proclamation, either of the two conditions mentioned in Clauses (a) and (b) of the provision to section 83(1) comes into existence, an order of attachment may be made without waiting for thirty days to expire. Even is such a case the Magistrate has to record his reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence.”

Considering the law and the facts of the case the court held that, there was no proclamation as regards the accused, i.e. Sheelam Gopal Reddy, to be an absconder in terms of Section 82 of the Cr.P.C. Such being the case, there being no proclamation, property belonging to such accused could not have been attached under Section 83 of Cr.P.C. Thus the court allowed Writ of certiorari setting aside the order of the Addl. Sessions Judge.

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