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Synopsis

The Allahabad High Court recently set aside an order passed by a Special POCSO court  in Lucknow ordering attachment of the house of the father of a proclaimed absconder. The order under Section 83 of the Criminal Procedure Code (CrPC) was issued to ensure the appearance of the absconder.

The bench of Justice Abdul Moin said that subsections (1) & (2) of Section 83 of the Code clearly stipulate that it is only the property belonging to the proclaimed person which can be attached.

"Mere residence of the proclaimed person in rented premises by no stretch of imagination or by operation of law can empower the concerned authority to seize or attach the rented property as the said rented property would not belong to the proclaimed person," court said.

Faiz Abbas, his father Faiyaz Abbas and his mother Guddo were made accused in an FIR lodged in 2015 under Sections 3 & 4 of the POCSO Act and Sections 323, 328, 363, 376, 504 & 506 of the I.P.C.

As the authorities were unable to ensure the appearance of Faiz Abbas, consequently an order under Section 82 of the CrPC dated January 12, 2023 was issued. Subsequently, an order dated February 2, 2023 was also passed under Section 83 of the Code whereby the property of Faiz's father, Faiyaz was attached which was his house.

Faiyaz filed his objections under Section 84 of the Code specifically pointing out that he was the sole owner of the house. However, the Special Court held that it was required to decide the dispute pertaining to the ownership of the house and as Faiz was residing in two rooms of the house, the order of attachment under Section 83 of the Code had correctly been passed.

The high court noted that from perusal of subsections (1) & (2) of Section 83 of the Code, it is apparent that it is the property which belongs to the proclaimed person which is to be attached and in the case at hand, it was clear that the property in fact belonged to Faiyaz not his son Faiz. 

"This aspect of the matter should have been considered by the concerned court instead of rejecting the application on the ground that while deciding the application, the ownership or possession of the property is not required to be seen," court held.

The high court held the Special Court's finding and reasoning was patently perverse, more particularly, considering subsections (1) & (2) of Section 83 of the Code.

Furthermore, court pointed out that the Special Court's indication in its order that it was not the entire property which has been attached rather only two rooms were attached in which the accused was residing was also meaningless. 

"Once, as already indicated above, it is only the property belonging to the proclaimed person which can be attached, consequently, there cannot be any occasion of attachment of the property in which the accused may be residing," court said. 

Counsel for Appellant: Advocates Mohd. Kumail Haider, Bal Keshwar Srivastava and Ravi Patel

Case Title: Faiyaz Abbas v. State of UP and Another