[Criminal Law Amendment Ordinance 1994] Owner Entitled To Seek Custody Of Property Subjected To Interim Attachment On Furnishing Security: MP High Court

The Madhya Pradesh High Court has clarified that the Criminal Law (Amendment) Ordinance, 1944 ('1994 Ordinance') confers right upon person whose property is subjected to ad interim attachment to file an application under Section 8 for release of property, subject to furnishing security to the satisfaction of District Judge.

Section 8 of the 1994 Ordinance states, "Any person whose property has been or is about to be attached under this Ordinance may, at any time apply to the District Judge to be permitted to give security in lieu of such attachment and where the security offered and given is in the opinion of the District Judge satisfactory and sufficient, he may withdraw or, as the case may be, refrain from passing, the order of attachment". 

The Bench comprising Justice Sheel Nagu and Justice Devnarayan Mishra on perusing the provisions of the 1994 Ordinance, observed:

"...when an order of interim attachment is made awaiting the same to become absolute, the person who is adversely affected by the ad interim attachment can make an application u/S.8 furnishing security to the District Judge concerned, who, in turn, is empowered to assess the sufficiency of the said security and thereafter pass appropriate order regarding ad-interim custody subject to the final attachment". 

The appellant in this case held lease hold rights on behalf of Indian Oil Company qua a retail outlet at Satna. Consequent to the appellant and her husband being charged with offences punishable Section 13 of the Prevention of Corruption Act, 1988 and ('Criminal misconduct by a public servant'), and Section 120(B) of IPC ('Punishment of criminal conspiracy'), the appellant's retail outlet was temporarily attached by an ad interim attachment order.

The appellant thus moved an application under Section 8 of the 1994 Ordinance seeking permission of Trial Court to operate the said retail outlet, which was rejected by the Special Judge. 

On perusing the provisions of the 1994 Ordinance, the Court ascertained that when an order of interim attachment is made awaiting the same to become absolute, the person who isadversely affected by the ad interim attachment could under Section 8 of the Ordinance furnishing security to the District Judge concerned, who, in turn, would be empowered to assess the sufficiency of the said security and thereafter pass appropriate order regarding ad-interim custody subject to the final attachment. 

However, the Court noted that in the present case, the application submitted by the appellant before the Special Judge did not indicate any offer to furnish security and was thus, incomplete and not in accordance with Section 8 of the Ordinance. 

"The District Judge ought to have either returned the application or dismissed the same as not maintainable, but instead impugned order was passed rejecting the request for permission to run the retail outlet," the Court said. 

It further took note that another Coordinate Bench of the Court had earlier rejected a similar prayer of the appellant to operate the retail outlet on the ground that since the final order of attachment had not been passed, the prayer was premature. In view of the afore discussion however on Section 8 of the 1994 Ordinance, the Court found the said decision of the Co-Ordinate Bench per incuriam.

"In view of above discussion and the fact that the application by appellant itself was not in the right format and also there was no prayer for furnishing of security before the District Judge, this Court deems it appropriate to dispose of this appeal with liberty to appellant to file appropriate application u/S.8 along with furnishing adequate security. If the District Judge/Special Judge finds the security to be satisfactory and sufficient, then the Court shall pass appropriate order as expeditiously as possible," it added, while disposing the appeal. 

Citation: 2024 LiveLaw (MP) 1

Case Title: Smt. Girja Devi Tiwari v. State of Madhya Pradesh

Case Number: CRIMINAL APPEAL No. 13140 of 2023

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