(1.) Mr. Siddhartha Sah, Advocate holding brief of Mr. Sanjeev Singh, Advocate for the petitioner submitted that Abhishek Bisht is facing prosecution for the offence punishable under Section 138 Negotiable Instruments Act pursuant to the complaint filed by the complainant; since, accused Abhishek Bisht did not appear before the Trial Magistrate, proclamation under Section 82 Cr.P.C. was issued against Abhishek Bisht; on the request of prosecution, Trial Court passed order for the attachment of the house belonging to the present petitioner. It has further been contended that house, in question, does not belong to accused Abhishek Bisht and is the sole property of the present petitioner, therefore, same cannot be attached. He further contended that objections were filed by the present petitioner before the learned Magistrate to the same effect whereupon learned Magistrate has passed order 'keep on file' and did not proceed to decide the claim of the petitioner. He further contended that property not belonging to the accused cannot be attached under Section 83 of the Cr.P.C.; if such objection is raised, learned Trial
(2.) Magistrate is duty bound to decide the question before passing the order under Section 83 Cr.P.C.
(3.) Sections 83 and 84 of the Cr.P.C. are being reproduced herein to appreciate the argument raised by the learned counsel for the petitioner:-
"83. Attachment of property of person absconding.- (1) The court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person:
Provided that where at the time of the issue of the proclamation the court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued,
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local jurisdiction of the court,
It may order the attachment simultaneously with the issue of the proclamation.
(2) Such order shall authorize the attachment of any property belonging to such person within the district in which it is made; and it shall authorize the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate.
(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-
(a) by seizure; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or
(d) by all or any two of such methods, as the court thinks fit.
(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the collector of' the district in which the land is situate, and in all other cases-
(a) by taking possessions or
(b) by the appointment of' a receiver; or
(c) by an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to any one on his behalf; or
(d) by all or any two of such methods, as the Court thinks fit.
(5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the court.
(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908)."
84. Claims and objections to attachment.
(1) If any claim is preferred to, or objection made to the attachment of, any property attached under section 83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under section 83, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part:
Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the even of the death of the claimant or objector, be continued by his legal representative.
(2) Claims or objections under sub-section (1) may be preferred or made in the court by which the order of attachment is issued, or, if the claim or objection is in respect of property attached under an order endorsed under sub-section (2) of section 83, in the court of the Chief Judicial Magistrate of the district in which the attachment is made.
(3) Every such claim or objection shall be inquired into by the court in which it is preferred or made:
Provided that, if it is preferred or made in the court of a Chief judicial Magistrate, he may, make it over for disposal to any Magistrate subordinate to him.
(4) Any person whose claim or objection has been disallowed in whole or in part by an order under subsection (1) may, within a period of one year from the date of such order, institute a suit to establish the right which the claims in respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive.";