Chapter VI
Section 85 CrPC: Release, sale and restoration of attached property
New Law Update (2024)
Section 96 BNSS
TRIAL COURT
Punishment
Procedural – Warrant / Summons Process
Cognizable?
Bailable?
Compoundable?
Bare Act Text
(1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment.
(2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government; but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under section 84 has been disposed of under that section; unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner, in either of which cases the Court may cause it to be sold whenever it thinks fit.
(3) If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under Sub-Section (2), appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein, such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the attachment, be delivered to him.
Important Sub-Sections Explained
Section 85(2)
This sub-section dictates the fate of attached property if a proclaimed person fails to appear within the specified time. It clarifies that while the property comes under the State Government’s control, its sale is restricted for six months, pending any claims, unless it’s perishable or its immediate sale benefits the owner.
Section 85(3)
This crucial sub-section provides a window for the restoration of attached property or its sale proceeds. If the proclaimed person appears within two years of attachment and successfully proves that they did not abscond to avoid a warrant and lacked sufficient notice of the proclamation, the property must be returned to them after deducting attachment costs.
Landmark Judgements
Smt. Saroj v. State of U.P. and Ors. (2007):
The Allahabad High Court elucidated the critical conditions for restoration of attached property under Section 85(3) CrPC. It ruled that the applicant bears the burden of proving to the Court’s satisfaction that they neither absconded to avoid a warrant nor had sufficient notice of the proclamation to appear within the stipulated time. Fulfillment of these twin conditions is paramount for securing the release of property.
Subhash Kumar v. State of U.P. (1998):
This Allahabad High Court judgment reinforced that the restoration of attached property, or its sale proceeds, under Section 85(3) CrPC is mandatory, provided the applicant successfully proves two conditions: non-abscondence to avoid a warrant and lack of adequate notice of the proclamation. The Court stressed that these conditions must be strictly satisfied for an order of restoration.
Draft Format / Application
IN THE COURT OF THE (Name of Magistrate/Judge)
AT (City/District)
Criminal Misc. Application No. _______ of _______
IN THE MATTER OF:
(Name of Applicant/Petitioner)
Son/Daughter of (Father’s Name)
Resident of (Full Address)
…Applicant/Petitioner
VERSUS
THE STATE OF (Name of State)
…Respondent
APPLICATION UNDER SECTION 85(3) OF THE CODE OF CRIMINAL PROCEDURE, 1973
FOR RESTORATION OF ATTACHED PROPERTY
MOST RESPECTFULLY SHOWETH:
1. That the Hon’ble Court was pleased to issue an order of attachment of the property belonging to the applicant/proclaimed person, bearing C.R. No./Case No. ________, dated ________, in connection with F.I.R. No. _______, under Section(s) _______, Police Station _______, District _______.
2. That pursuant to the said order, the following property of the applicant was attached:
(a) (Detailed description of Property 1)
(b) (Detailed description of Property 2)
(c) (etc.)
3. That the applicant submits that he/she did not abscond or conceal himself/herself for the purpose of avoiding the execution of the warrant issued by this Hon’ble Court. (Elaborate briefly, e.g., due to illness, being out of station for work, unaware of proceedings, etc.)
4. That the applicant further submits that he/she had no notice of the proclamation issued under Section 82 CrPC as to enable him/her to attend before this Hon’ble Court within the time specified therein. (Elaborate briefly, e.g., proclamation not properly published, residence vacant, misinformation, etc.)
5. That the applicant has now appeared voluntarily before this Hon’ble Court (or was apprehended on ______) and is ready to face the proceedings as per law.
6. That the period of two years from the date of the attachment has not yet expired. The attachment was made on ________.
7. That the attached property, or its net proceeds if sold, is liable to be delivered to the applicant after satisfying all costs incurred in consequence of the attachment, as per Section 85(3) CrPC.
PRAYER:
It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:
a) Direct the release and restoration of the attached property (or its net sale proceeds if sold, or the residue of the property) to the applicant.
b) Pass such other or further order(s) as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
AND FOR THIS ACT OF KINDNESS, THE APPLICANT, AS IN DUTY BOUND, SHALL EVER PRAY.
Place: (City)
Date: (Date)
(Signature of Applicant/Petitioner)
(Name of Applicant/Petitioner)
Through,
(Signature of Advocate)
(Name of Advocate)
(Enrollment No.)
(Address of Advocate)