Only The Property Belonging To The "Proclaimed Person" Can Be Attached U/S 83 Cr.P.C.: Allahabad HC
The Allahabad High Court ruled that no order of attachment under Section 83 CrPC could be passed if the property does not belong to the person against whom the order has been passed.
The Court was hearing a Criminal Appeal challenging the order rejecting the application of the appellant under Section 84 of the Cr.P.C.
A Single Bench of Justice Abdul Moin observed, “... the sine-qua-non to an order being passed under the provisions of Section 83 of the Code would be of a finding, may be prima facie, that the property for which the attachment order is being passed belongs to the accused person and consequently, without such finding, obviously, no such order could have been passed under the provision of Section 83 of the Code..”
Advocate Mohd. Kumail Haider appeared for the Appellant.
Brief Facts-
An F.I.R. was lodged against the Appellant, his wife, and his son under Sections 3 & 4 of the POCSO Act and under Sections 323/328/363/376/504/506 IPC. As the authorities were unable to secure the presence of the Appellant's Son, an Order u/S 82 of Cr.P.C. was passed attaching the property of the Appellant on the premise that his son used to reside in two rooms of the entire house. He filed objections u/s 84 of the Code stating that he is the sole owner of the property and that his son has nothing to do with the house, consequently, the attachment order be set aside. Hence, this appeal.
The Court noted, "...it clearly emerges that the property in fact belongs to the appellant and not his son Faiz Abbas, the proclaimed person, consequently, it was in the fitness of things that this aspect of the matter should have been considered by the concerned court instead of rejecting the application..”
The Court also noted that the Trial Court's findings are patently perverse, considering sub-section (1) & (2) of Section 83 of the Code which stipulates that only property of 'Proclaimed Person' can be attached.
Furthermore, the Court elaborated the fallacious reasoning of the Concerned Court by giving an example of rented premise and observed, “Mere residence of the proclaimed person in rented premises by no stretch of imagination or by operation of law can empower the concerned authority to seize or attach the rented property as the said rented property would not belong to the proclaimed person.”
The Court mentioned the decision in the case of Nazir Ahmad v. King Emperor 1936 SCC OnLine PC 41 and quoted, "where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."
Accordingly, the Court allowed the Criminal Appeal and set aside the attachment order.
Cause Title: Faiyaz Abbas v. State of U.P. (Neutral Citation: 2024:AHC-LKO:48788)
Appearance:
Adv. Mohd. Kumail Haider, Adv. Bal Keshwar Srivastava, and Adv. Ravi Patel