Can property belonging to parents of absconding accused be attached? Allahabad High Court answers

The Allahabad High Court recently held that a court cannot order the attachment of a property in which the proclaimed person (a person accused of an offence who is absconding) may have been residing if the property does not belong to him [Faiyaz Abbas vs State of UP]..Justice Abdul Moin made the observation while setting aside a trial court order attaching two rooms in which the proclaimed person had been residing. The property belonged to the father of the proclaimed person.The Court said that Section 83 (attachment of property of person absconding) of the Code of Criminal Procedure (CrPC) makes it clear that only the property belonging to the proclaimed person can be attached.“From the perusal of the provisions of Subsections (1) & (2) of Section 83 of the Code, it clearly emerges that the court while issuing a proclamation under Section 82 of the Code may, for reasons to be recorded in writing, at any time after issue of the proclamation, order of the attachment of any property movable or immovable, or both, belonging to the proclaimed person," the Court said. .The judgement was passed on an appeal moved by the proclaimed person’s father (appellant) against a trial court's July 2023 order. The appellant Faiyaz Abbas, his wife Guddo and their son Faiz Abbas are accused in a rape case dating back to 2015.Since the son of the appellant (Faiz Abbas) was untraceable, a trial court issued a proclamation against him last year and later ordered the attachment of two rooms in which he had been residing at his father’s property. The appellant objected to this attachment, saying that he was the sole owner of the house and that his son Faiz had nothing to do with it. However, the trial court rejected the objection and opined that it was not required to decide on disputes pertaining to the ownership of the house..However, the High Court said the trial court should have considered the objection since only a proclaimed person's property can be attached under Section 83 of the CrPC. “The aforesaid finding and reasoning is found patently perverse, more particularly, considering subsections (1) & (2) of Section 83 of the Code which clearly stipulates that it is only the property belonging to the proclaimed person which can be attached. Thus, the sine-qua-non to an order being passed under the provisions of Section 83 of the Code would be of a finding, may be prima facie, that the property for which the attachment order is being passed belongs to the accused person and consequently, without such finding, obviously, no such order could have been passed under the provision of Section 83 of the Code which in turn has been affirmed with the dismissal of the objections filed by the appellant," the High Court observed. .The Court also said it was meaningless on the trial judge’s part to have stated that only two rooms were being attached since the accused was residing in them.“To elaborate this fallacious reasoning of the concerned court, an example may be taken where a proclaimed person may be residing in rented premises. 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,” the High Court added.The Court thus allowed the appeal and set aside the attachment order. .Advocate Mohd Kumail Haider, Bal Keshwar Srivastava and Ravi Patel represented the appellant.Advocate Angad Vishwakarma represented the State..[Read Judgment]