The Allahabad High Court while allowing an appeal said that where a proclaimed person may be residing in rented premises. 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.
A Single Bench of Justice Abdul Moin passed this order while hearing a Criminal Appeal filed by Faiyaz Abbas.
The criminal appeal has been filed under Section 86 of the Criminal Procedure Code challenging the order dated 12.07.2023 passed by the Special Judge, POCSO, Lucknow. By the said order, the application filed by the appellant under Section 84 of the Code has been rejected.
The facts as urged by the counsel for the appellant is that an F.I.R had been lodged by Saiyyad Ali Hasan against Faiyaz Abbas (the appellant), 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.
As the authorities were unable to ensure the appearance of Faiz Abbas, the son of the appellant, consequently an order under Section 82 of the Code dated 12.01.2023. Subsequently, an order dated 06.02.2023 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.
As the house belongs to appellant herein, namely, 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.
The court by order 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.
The argument of the 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.
On the other hand, 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 the competent court while passing the order under Section 83 of the Code in attaching the property of the accused and further, no perversity emerges from the order dated 12.07.2023 whereby the objections filed by the appellant against the order under Section 83 of the Code have been rejected. He thus contends that the appeal merits to be dismissed.
The Court observed that,
From a perusal of record, it emerges that admittedly, an F.I.R had been lodged in the year 2015 against the appellant namely Faiyaz Abbas (the appellant), Faiz Abbas (the son of the appellant) and Smt Guddo (the wife of the appellant). As the son of the appellant, Faiz Abbas was not appearing, consequently, an order under Section 82 of the Code was initially issued on 12.01.2023 and thereafter, the order under Section 83 of the Code dated 06.02.2023 was passed whereby the property in question was attached. As the property belongs to the appellant on the basis of a will, the appellant filed his objections under Section 84 of the Code whereby this fact of the property belonging to him, on the basis of a will, was specifically urged before the court. The court by order dated 12.07.2023 has been of the view that the said attachment order has been passed in order to ensure the appearance of the accused Faiz Abbas and as the accused was residing in two rooms of the property in question, consequently, there is no error in the attachment order. The court had gone to the extent of also saying that while passing of an order under the provision of Section 84 of the Code, the ownership and possession of the property is not to be ascertained.
From the perusal of the provisions of Subsections (1) & (2) of Section 83 of the Code, it clearly emerges that the court while issuing a proclamation under Section 82 of the Code may, for reasons to be recorded in writing, at any time after issue of the proclamation, order of the attachment of any property movable or immovable, or both, belonging to the proclaimed person.
Thus from perusal of subsections (1) & (2) of Section 83 of the Code, it is apparent that it is the property which belongs to the proclaimed person which is to be attached.
“From the objections as were raised by the appellant before the concerned court, 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 on the ground that while deciding the application, the ownership or possession of the property is not required to be seen.
The aforesaid finding and reasoning is found patently perverse, more particularly, considering subsections (1) & (2) of Section 83 of the Code which clearly stipulates that it is only the property belonging to the proclaimed person which can be attached. Thus, 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 which in turn has been affirmed with the dismissal of the objections filed by the appellant”, the Court further observed while allowing the appeal.
The Court set aside the order dated 12.07.2023, as well as the attachment order dated 06.02.2023.