ABOOBACKER @ UNNI S/O AVARAN v. THE STATE OF KERALA & VILLAGE OFFICER, PORUR VILLAGE, MALAPPURAM DIST.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 2ND DAY OF MARCH 2017/11TH PHALGUNA, 1938** **Crl.MC.No. 1311 of 2017 () ---------------------------** **(AGAINST THE ORDER IN CMP NO.5758/2016 IN CC NO.2891/2016 OF JFCM-I, THRISSUR)** **PETITIONER(S)//ACCUSED:** **----------------------** **ABOOBACKER @ UNNI S/O AVARAN, PARAMMEL HOUSE, CHERUR, PULINGODE, MALAPPURAM DIST.** **BY ADV. SRI.BABU S. NAIR** **RESPONDENT(S)//STATE & COMPLAINANT:** **-----------------------------------** **1. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI- 682 031 FOR THE CIRCLE INSPECTOR OF POLICE, THRISSUR EAST POLICE STATION, THRISSUR DIST.** **2. THE VILALGE OFFICER, PORUR VILLAGE, MALAPPURAM DIST.- 679 339** ## **R BY PUBLIC PROSECUTOR SRI.AMJAD ALI** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 2702-2017, THE COURT ON 2/3/2017 PASSED THE FOLLOWING:** **Crl.MC.No. 1311 of 2017 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------ANNEXURE A TRUE COPY OF THE ORDER DATED 25-11-2016 IN CMP NO.5758/2016 IN CC NO.2891/2016 OF THE JFCM-1, THRISSUR** **ANNEXURE B TRUE COPY OF THE COMMUNICATION GIVEN BY THE ASSISTANT PUBLIC PROSECUTOR JFCM-1, THRISSUR DATED NIL** **ANNEXRUE C TRUE COPY OF THE COMMUNICATION GIVEN BY THE DISTRICT COLLECTOR,MALAPPURAM TO THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM DATED 1-2-2017** **ANNEXRUE D TRUE COPY OF THE COMMUNICATION ISSUED B Y THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM TO THE DISTRICT COLLECTOR, MALAPPURAM DATED 6-2-2017** **ANNEXURE E TRUE COPY OF THE ORDER DATED 25-1-2016 IN CRL.MC NO.2723/2014 OF THIS HON'BLE COURT** **RESPONDENT(S)' EXHIBITS** **----------------------NIL** **/TRUE COPY/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No.1311of 2017** - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of March, 2017 ## **O R D E R** The petitioner herein is arrayed as the second accused in CC No.2891/2016 of JFCM-I, (originally CC No.349/2000 of JFCM-I) Thrissur for offences punishable under Section 379 read with section 34 IPC. 2. The accused did not appear before the court below in CC 349/2000. Hence, coercive steps were initiated against him including proclamation and attachment under Sections 82 and 83 of Cr.P.C in the year 2002. Subsequently, he appeared before the court below and was released on bail. Pursuant to the proclamation and attachment, an extent of 1.4568 hectars land comprised in RS No.120/2 in Block No.140 of Porur village belonging to the petitioner was kept under attachment. After appearance of the accused, he filed an application as CMP No.5758/2016 for lifting the attachment,which was dismissed by the learned Magistrate by Annexure A order holding that under Section 85 (3) of Cr.P.C., a person against whom proclamation is issued must appear within two years from the date of attachment and only if shows sufficient reasons, attachment can be lifted. Since the petition was not filed within two years from the date of Crl.M.C.No.1311/2017 2 attachment, the petition was dismissed. Thereafter, the petitioner moved the Government for withdrawing the attachment. Pursuant to the above, the Assistant Public Prosecutor, by Annexure B, give a legal advise to the District Collector, that since the accused had appeared before the court below there was no legal embargo in revoking the attachment order. It was forwarded by the District Collector to the Commissioner of Land Revenue by Annexure- C, enclosing necessary documents, the order of the court below and other relevant revenue documents. The Land Revenue Commissioner had communicated by Annexure D to the District Collector, that since the earlier application filed before the court below was dismissed, considering the fact that the application for withdrawal of the attachment was filed 13 years thereafter and since the District Collector had not given specific recommendation, he was required to give his opinion on the subject. Aggrieved by the above, preferred this Crl.M.C. 3. Heard and examined the records. 4. Admittedly, the case against the petitioner herein commenced in the year 2000 and the attachment was effected in the year 2002. The petitioner appeared before the court below long thereafter and by Annexure A order, the court below has refused to revoke the attachment for the reason that it was within the domain of the Government and the petition is not filed within two years from the date of attachment. 3 Crl.M.C.No.1311/2017 5. Learned counsel for the petitioner relied on Annexure E order of this Court in Crl.M.C.2723/2014 and the decision of this Court in **Abdul Khadar v. State of Kerala[2015(5) KHC 361)** . In Abdul Khadar's case, this court held that once the accused appear before the court and enlarged on bail recording the appearance there is no purpose in retaining the attachment order. The court held that, he is no longer an absconder from the date of the attachment and formal order revoking the attachment was not required. It was held that attachment stood lifted automatically. The court relied on the decision reported in **Vimlaben Ajitbhai Patel v. Vatslaben Ashokbahi Patel [2008 (2) KHC 396]** to support the above conclusion.. In Vimlaben's case , it was held by the Supreme Court that, the provisions contained in Section 82 of Cr.P.C. were put on the statute book for certain purpose. It was enacted to secure the presence of the accused and once the said purpose is achieved, the attachment shall be withdrawn. In Abdul Khadar's case, the only question that came up for consideration was whether on appearance of the accused before the court below within the stipulated period of two years, a separate order lifting the attachment was required. The court, negativing the contention held that once the accused appears, there was no purpose of continuing the attachment and the attachment ceased to be in existence thereafter. In Crl.M.C.No.2723/2014, this court held that no separate order lifting the attachment was required 4 Crl.M.C.No.1311/2017 and necessary reliefs were granted. It was on a premise that, once the accused appears within the stipulated period of two years, there was no purpose in retaining the attachment and the attachment has to be lifted. 6. In the case at hand, the petitioner herein has approached this court much after the statutory period . By that time, the matter was within the domain of the Government. Since the property has not been sold pursuant to the attachment, it is for the Government to take an appropriate decision on the facts and circumstances of the case. Evidently, no purpose will be served by retaining the attachment. Annexure B clearly shows that the Assistant Public Prosecutor had expressed his opinion that there was no embargo in withdrawing the attachment. Even though in Annexure C, the District Collector had not specifically disclosed his opinion, by forwarding the above recommendation along with supporting documents and in the absence of any clear objection raised by the District Collector against the lifting the attachment, it can only deemed to be a communication recommending withdrawal of the attachment. Hence, there was no reason why the Land Revenue Commissioner should entertain a doubt regarding the nature of the recommendation made by the District Collector. The Land Revenue Commissioner could have passed the order on the basis of Annexure C itself. 7. In the light of the above, I am inclined to dispose of the 5 Crl.M.C.No.1311/2017 Crl.M.C. with a direction that the Land Revenue Commissioner shall pass appropriate orders within ten days from the date of receipt of a copy of this order, after taking into consideration all the relevant inputs, including further recommendation, if any received from the District Collector. Crl.M.C.is disposed of as above. Sd/- **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. Crl.M.C.No.1311/2017 6