Magistrate Cannot Postpone Decision On Ownership Objections Raised By Third Party U/S 84 Cr.P.C. Until After Attachment Order Is Executed: Jammu & Kashmir and Ladakh High Court

The Jammu & Kashmir and Ladakh High Court has held that Magistrate cannot postpone decision on ownership objections raised by third party under Section 84 Criminal Procedure Code until after attachment order is executed under Section 83 Criminal Procedure Code.

The Court was considering a Petition challenging an order passed by Judicial Magistrate 1st Class (Sub Registrar) while dealing with the objections of the Petitioner in terms of Section 84 of the Cr. P. C and directed the Deputy Commissioner to provide status report regarding two orders and the said Authority was asked to implement these orders and file compliance report.

The single bench of Justice Sanjay Dhar observed, "...if a third party raises an objection prior to the attachment of the property, the court has to decide the same and if the court comes to the conclusion that the property does not belong to the accused, the court can pass an order, either declining to attach the property or withdraw the attachment order. So, the observation of the learned trial Magistrate that the objections of the petitioner can be considered only after attachment of the property is effected on spot, is not in accordance with law."

The Petitioner was represented by Advocate Iman Abdul Muiz while the Respondent was represented by Advocate Sheikh Mushtaq.

Facts of the Case

The Deputy Commissioner, Srinagar, was directed to attach the whole or any part of the immovable property as well movable property of accused, Respondent No.2 and to seize bank accounts of the said accused. The Trial Magistrate framed the opinion that only upon receipt of compliance report from the Deputy Commissioner, conclusion about ownership of the bank account, can be drawn. Later, a complaint for offence under Section 138 of the Negotiable Instruments Act was filed by Respondent No.1 against Respondents No.2 and 3 before the Trial Magistrate wherein the Trial Magistrate issued process against the Respondents.

During trial of the complainant, the Accused stopped appearing in the case which compelled the Trial Magistrate to issue non-bailable warrants against them. It was reported by the executing officer that both the accused absconded to Delhi and cannot be arrested and accordingly they were declared absconders and proclamation in terms of Section 82 of the Cr. P. C was directed to be issued. The order was challenged by Respondent No.3 and Trial Magistrate was further directed to defer the proceedings of proclamation and attachment of property of the said accused. The said orders were accordingly recalled.

At the instance of the Petitioner, the Magistrate passed the impugned order whereby he concluded that the compliance report in respect of order dated June 01, 2023 is necessary before proceeding further in the matter, meaning thereby that the trial Magistrate sought implementation of attachment orders passed in respect of the property in question and has framed an opinion that the objections of the petitioner would be considered only after attachment order is implemented on spot.

Reasoning By Court

The Court at the outset noted that the procedure adopted by the trial Magistrate is not countenanced by law as a bare perusal of the provisions contained in Section 83 and 84 of the Cr. P. C would reveal that after issuance of proclamation under Section 82 of the Cr. P. C, the Court can proceed to attach property of the accused under Section 83 of the Cr. P. C.

"It is also clear that Section 84 of the Cr. P. C provides that objections to the effect that the property does not belong to the accused can also be raised within six months from the date of such attachment. However, it does not bar raising of objection prior to the attachment," the Court observed.

The impugned order was thus set aside and trial Magistrate was directed to proceed ahead and decide the objections filed by the Petitioner to the attachment order most expeditiously after hearing the parties, without waiting for the compliance report of the Deputy Commissioner concerned.

The Petition was accordingly allowed.

Cause Title: Sheikh Showkat vs. Ghulam Jeelani Chesti & Others

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