Usha Jossy and others v. V.C. George and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **THURSDAY, THE 3RD DAY OF JULY 2014/12TH ASHADHA, 1936** ## **Crl.MC.No. 3380 of 2014 ()** **--------------------------CMP NO. 5124/2014 IN CC.NO. 323/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I, PALA DATED 19-05-2014** **-----------------------** ## **PETITIONERS/PETITIONERS :** **-------------------------------------------** ## **1. USHA JOSSY, AGED 50 YEARS** - **W/O.JOSSY THOMAS, VELLAIPARAMBIL VEED, KURAVILANGADU KOTTAYAM.** ## **2. ANAND JOSSY** **S/O.JOSSY THOMAS, VELLAIPARAMBIL VEED, KURAVILANGADU KOTTAYAM.** ## **3. ARUN JOSSY** **S/O.JOSSY THOMAS, VELLAIPARAMBIL VEED, KURAVILANGADU KOTTAYAM.** **BY ADVS.SMT.JEENA JOSEPH SRI.G.D.PANICKER** ## **RESPONDENTS/COUNTER PETITIONER :** **------------------------------------------------------------** ## **1. V.C.GEORGE** - **S/O.CHACKO, THATTARAPPARAYIL VEEDU, KALATHOOR KARA KURAVILANGADU, KOTTAYAM, PIN-686633.** ## **2. STATE OF KERALA** - **REP. BY GOVT.PLEADER, HIGH COURT OF KERALA ERNAKULAM, PIN-682 031.** **R2 BY PUBLIC PROSECUTOR SMT.S. HYMA** ## **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** **Crl.MC.No. 3380 of 2014 () -------------------------------------** ## **APPENDIX** |**PETITIONERS' ANNEXURES :**|**PETITIONERS' ANNEXURES :**| |---|---| |**-------------------------------------------**|| |**ANNEXURE A1:**|**TRUE COPY OF THE SETTLEMENT DEED NO.484/13 DT.1-3-2013**| ||**IN FAVOUR OF THE PETITIONERS.**| |**ANNEXURE A2:**|**TRUE COPY OF THE SALE DEED EXECUTED BY THE**| ||**PETITIONERS ON 20-2-2014 INFAVOUR OF THE E.D.JOSEPH.**| |**ANNEXURE A3:**|**TRUE COPY OF THE ORDER IN CC 323/2014 DT.11-2-2014.**| |**ANNEXURE A4:**|**CERTIFIED COPY OF THE ORDER IN CMP 5124/2014 IN**| ||**CC 323/2014 DT.19-5-2014 OF THE JFCM COURT NO.I, PALA.**| |**RESPONDENT(S)'**|**EXHIBITS : NIL**| |**--------------------------------------------------------------**|| **//TRUE COPY//** **P.A. TO JUDGE Mn** ## K. RAMAKRISHNAN, J. -----------------------------------------------------------------Criminal M.C. No.3380 of 2014 --------------------------------------------------------------------Dated this the 3[rd] day of July, 2014 ## O R D E R This criminal miscellaneous case is filed by the petitioners, challenging the order passed by the Judicial First Class Magistrate Court-I, Pala, in C.M.P. No.5124/2014 in C.C.323/2014 under Section 482 of the Code of Criminal Procedure (hereinafter called 'the Code'). 2. It is alleged in the petition that, the first petitioner's husband Mr.Jossy Thomas, was accused in S.T.2632/2009 pending before the Judicial First Class Magistrate Court, Pala. Since the accused in that case did not appear, non-bailable warrant was issued against him and proceedings under Section 82 and 83 of the Code of Criminal Procedure was also initiated. The property belonging to the accused having an extend of 20.63 Ares of land was attached on 26.02.2011. Thereafter the case was transferred to the register of long pending cases as Crl.M.C.No. 3380/ 2014 2 L.P.66/2011. The accused was still absconding and he abandoned the petitioners. Now he is residing with some other lady. He had settled the property in their favour, as per document No. 484/2013 dated 01.03.2013. They were not aware of the court proceedings. Thereafter, they have sold the property to one E.D. Jose and paid of the liability and a petition was filed by the complainant, seeking permission to withdraw the complaint and accordingly, the case was re-filed as C.C.323/2014 and he was permitted to withdraw and the accused was acquitted as per AnnexureA3 order. Thereafter, the petitioner filed Crl.M.P.No.5124/2014 before the Magistrate Court to lift the attachment under Section 85 of the Code of Criminal Procedure, but the learned magistrate dismissed the application by Annexure-IV order, which is being challenged before this court under Section 482 of the Code of Criminal Procedure. 3. Considering the nature of relief in the Crl.M.C.No. 3380/ 2014 3 petition, this court felt that, this can be disposed of at the admission stage itself, after hearing the counsel for the petitioner and learned Public Prosecutor. 4. The counsel for the petitioner submitted that, the petitioners are unfortunate wife and children of a person, who is the accused in the case, who abandoned them. Thereafter, he executed a settlement deed in respect of this property and in order to discharge the liabilities, they have sold the property to one Joseph and on the basis of the petition filed by the complainant in the main case, the case was withdrawn. While the case was pending, the property was attached under Section 83 of the Code of Criminal Procedure. Now the case is ended in acquittal of the accused. Further they have not aware of the attachment. So according to the learned counsel, the order passed by the court below is unsustainable in law. 5. The application was opposed by the learned Public prosecutor. Crl.M.C.No. 3380/ 2014 4 6. It is an admitted fact that, the petitioners are the wife and children of accused Jossy Thomas in C.C.323/2014 on the file of the Judicial First Class Magistrate Court-I, Pala. This case was originally taken on file as S.T.2632/2009 and since the accused did not appear, as part of the proceedings, the learned magistrate initiated in Section 82 and 83 of the Code of Criminal Procedure, this property was attached on 26.02.2011. The accused was still absconding. It is thereafter, as per Annexure-3 order, the case was re-filed as C.C.323/2014 and the complainant filed an application for withdrawal of the case and as per Annexure-3 order, the complainant was permitted to withdraw the complaint and the accused in that case was acquitted that was dated 11.02.2014. It is also seen from the documents produced that, settlement deed in favour of the petitioners and the subsequent sale deed in favour of one Joseph produced as Annexure-A1 and A2, were executed during the pendency of the attachment. Further Crl.M.C.No. 3380/ 2014 5 Section 85(2) of the Code specifically says that, the application for lifting the attachment of the property has to be filed by the person, whose property is attached within two years from the date of attachment. If it is not done within two years, then the court has become functus officio and it will have to be done by the Government, as after two years the property will be at the disposal of the Government. This was so held by this court in the decision reported in **Babu v. State of Kerala (2011(3) KLT 383** . In the same decision it has been held that merely because complaint against an accused is withdrawn by the complainant and the accused is consequently acquitted, he cannot after expiry of two years from the date of attachment of his property request to lift attachment and the remedy is to apply for the government for that purpose. So under the circumstances, the lower court was perfectly justified in dismissing the application, as it was filed after two years of the attachment. The remedy of the petitioners Crl.M.C.No. 3380/ 2014 6 is to approach the Government for getting the property released. Further, an appeal will lie against the order before the Sessions Court. So on that ground also the application is not maintainable before this court under Section 482 of the Code of Criminal Procedure. So the petitioner is not entitled to get any relief and the petition is liable to be dismissed. So the petition is dismissed with above observation. If an application is filed by the petitioner for lifting the attachment before the Government, then the Government is directed to consider and dispose of that application in accordance with law, within two months from the date of filing of the application. The petitioner is directed to produce this order along with the application before the Government, when she applies for this purpose. Sd/- **K. RAMAKRISHNAN, JUDGE** // True Copy// P.A. to Judge ss