[Section 85(3) CrPC] Legal Heirs Of Accused Can Approach Court For Release Of Attached Property After Expiry Of Statutory Period: Kerala HC

Reiterating that there is no absolute prohibition in entertaining an application under Section 85(3) CrPC at the instance of an accused even after the expiry of statutory period, the Kerala High Court recently said that nothing will preclude the legal heir of the accused from submitting an application in this regard when the accused is no more.

Justice Ziyad Rahman A. A. relied upon the court's recent decision in Transsafe Refrigeration Private Ltd. (M/s.) and another v. State of Kerala and another wherein it was held that even after expiry of the said period, an application at the instance of the accused can be entertained.

"In the light of the observations made by this Court in the said decision, it is clear that there is no absolute prohibition in entertaining an application at the instance of the accused even after the expiry of the statutory period," the bench said.

Facts

A 22-year-old had earlier approached Chief Judicial Magistrate Kottayam for release of their Nooranad village property from attachment. In 2009, the property had been attached by the court in a pending case against his father.

The petitioner Vishnu M. came to know about the attachment only after his father's death. His application was dismissed by the magistrate on the ground of delay - the application was filed more than two years after the attachment.

Contentions 

The counsel appearing for the petitioner, Advocate M. R. Sarin, contended before high court that neither the petitioner nor his father was aware of the proceedings pending before the Chief Judicial Magistrate, and no summons was ever served to them.

The counsel submitted that the petitioner could not have submitted the application within the time frame stipulated as he was not aware of such proceedings. It was also argued that since the petitioner's father passed away in 2017, the entire proceedings against him (father) now stand abated.

Public Prosecutor Advocate Sreeja V, on the contrary, contended that the petition is not maintainable as an alternative remedy under Section 86 CrPC is available to the petitioner.

The PP also argued that since the application to restore the attached property was submitted beyond the statutory period of two years contemplated under Section 85(3) of Cr.P.C., the property already stands vested with the government, and the remedy of the petitioner is to move the State for getting the said property released.

Findings 

The Court, after considering the contentions raised by both the counsels and relying on the decision in Transsfe Refrigeration Private Ltd. and another v. State of Kerala and another, said:

"When the principles laid down by this Court in the said decision are applied in this case, it has to be noted that the petitioner is the son of the deceased accused. When it is held that an accused is entitled to submit an application even after the period of limitation stipulated under section 85, nothing will preclude the legal heir of the accused from submitting an application in this regard when the accused is no more."

The court also noted that the petitioner got the right over the property in question by way of inheritance in 2020 upon the death of his father, and the attachment was ordered in the year 2009,

Thus, under no circumstances, the opportunity to submit an application to the petitioner can be denied. This is mainly so, since the petitioner could not have submitted the said application within the statutory period of two years from the date of attachment. It is also relevant that the accused is no more, and the proceedings stand abated, the Court observed. 

Regarding the contention raised about the maintainability of the petition due to existence of an alternative remedy, the court said the petition can be entertained looking into the peculiar facts and circumstances of the case.

"This is particularly in view of the fact that the application of the petitioner was rejected without considering the same on merits and was rejected merely because it was not maintainable," it added.

Allowing the petition, the court remitted the matter back to the Magistrate for fresh consideration.

Case Title: Vishnu M v. State of Kerala & Anr. 

Citation: 2022 LiveLaw (Ker) 582

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