Property Where Accused Resides But Does Not Own, Including Rented Premises, Can't Be Attached U/S 83 CrPC: Allahabad HC

The court emphasized that properties where the accused resides but does not own, such as rented residences, are excluded from such attachments.

With this observation, a bench of Justice Abdul Moin set aside an order passed by the Court under 83 CrPC, in which the property belonging to the father of the accused booked under the POCSO Act was attached.

“…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,” the Court observed.

The Court further clarified that a prerequisite (sine qua non) for issuing an order under Section 83 CrPC is the finding, even if only prima facie, that the property in question belongs to the accused.

The Court stressed that no attachment order can be legitimately issued under Section 83 CrPC without such a finding.

The case in brief

An FIR was lodged in November 2015, under provisions of Sections 3 & 4 of the POCSO Act as well as under certain Sections of IPC by one Saiyyad Ali Hasan against Faiyaz Abbas (the appellant herein), Faiz Abbas (the son of the appellant) and Smt. Guddo (the wife of the appellant).

As the authorities were unable to ensure the appearance of Faiz Abbas (the son of the appellant), an order under Section 82 CrPC was passed.

Subsequently, an order under Section 83 CrPC was passed by the Court whereby the property of the appellant herein was attached, on the grounds that Abbas was living in the said house

As the house belongs to the appellant, he filed his objections under Section 84 CrPC, specifically pointing out that he is the sole owner of the house and that his son (Abbas) has nothing to do with it. Thus, it was prayed that the attachment order be set aside.

The court dismissed the appellant's objections under Section 84 CrPC stating that determining ownership was unnecessary and that the attachment order under Section 83 was correctly issued since the accused (Abbas) resided in two rooms of the house.

Aggrieved by this order, the appellant filed the instant appeal while arguing that the provision of Section 83 CrPC categorically provides that an attachment order can be passed for the property belonging to the proclaimed person who does not appear.

Thus, it was contended that the property of a third person, in this case belonging to the father of the accused, could not have been attached.

On the other hand, the counsel for the state justified the order of attachment.

High Court's observations

Perusing the mandate of Section 82 and 83 of CrPC, the Court, at the outset, noted that a court, while issuing a proclamation under Section 82 CrPC, for reasons to be recorded in writing, at any time after issuing of the proclamation, order of the attachment of any property movable or immovable, or both, belonging to the proclaimed person.

Against this backdrop, the Court opined that since the property in fact, belongs to the father of the accused (Abbas), the proclaimed person, 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.

“It was also meaningless for the concerned court to have indicated that it was not the entire property which has been attached rather only two rooms were attached in which the accused was residing. Once, as already indicated above, it is only the property belonging to the proclaimed person which can be attached, consequently, there cannot be any occasion of attachment of the property in which the accused may be residing,” the Court further observed.

The Court also added that the mere residence of the proclaimed person in rented premises doesn't empower the concerned authority to seize or attach the rented property as the said rented property would not belong to the proclaimed person.

Keeping in view of the aforesaid discussion, the criminal appeal was allowed and the order of the attachment was set aside.

Appearances

Counsel for Appellant: Mohd. Kumail Haider, Bal Keshwar Srivastava, Ravi Patel

Counsel for Respondent: AGA Angad Vishwakarma