Magistrate Cannot Postpone Decision On Third Party Ownership Objections U/S 84 Of CrPC Until After Attachment Is Executed: J&K High Court
The High Court of Jammu and Kashmir and Ladakh has held that a Magistrate is legally obligated to adjudicate objections filed under Section 84 of the Code of Criminal Procedure (CrPC) by third parties before an attachment order under Section 83 CrPC is carried out. Any postponement of such adjudication pending physical attachment or receipt of compliance reports is contrary to law, the court ruled.
These observations were made by Justice Sanjay Dhar while setting aside an order of the Judicial Magistrate 1st Class (Sub-Registrar), Srinagar, who had deferred hearing third-party objections on the grounds that attachment had not yet been implemented and a compliance report was awaited from the Deputy Commissioner.
The High Court held that the statutory provisions under Sections 83 and 84 CrPC must be read harmoniously to protect the interests of innocent third parties whose property may be wrongfully targeted for attachment.
Justice Dhar observed that after issuance of a proclamation under Section 82 CrPC, the Magistrate may indeed order the attachment of property under Section 83. However, Section 84 CrPC expressly provides a legal remedy for third parties to raise objections claiming that the attached property does not belong to the accused, he added.
Importantly, the Court emphasized that although Section 84 allows such objections to be filed within six months from the date of attachment, there is no legal embargo against filing or adjudicating such objections before attachment is carried out. In fact, the court pointed out that once such an objection is raised, the Magistrate has a duty to decide whether the property truly belongs to the accused.
Justice Dhar clarified,
“It does not bar raising of objection prior to the attachment. Thus, 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.”
The Court found the trial Magistrate’s reasoning that the objections would only be considered after the attachment order was implemented to be not in accordance with law. It was further held that the Magistrate’s insistence on awaiting a compliance report from the Deputy Commissioner before proceeding with adjudication of objections lacked any legal basis.
Accordingly, the High Court set aside the order passed by the Magistrate and directed that the petitioner’s objections under Section 84 CrPC be decided forthwith and without awaiting any compliance report.
Justice Dhar directed,
“The learned trial Magistrate is 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 case stemmed from a complaint filed under Section 138 of the Negotiable Instruments Act. After the accused failed to appear, the Magistrate issued non-bailable warrants and declared the accused as absconders, subsequently ordering proclamation under Section 82 CrPC.
Though the proclamation and initial attachment proceedings were stayed by the High Court in early 2023, the Magistrate later issued a fresh order under Section 83 CrPC, directing the Deputy Commissioner to attach both movable and immovable property of the accused, including bank accounts held in the name of Firdous Educational Institute.
Sheikh Showkat, the petitioner, claimed ownership of the attached property and filed a petition under Section 482 CrPC challenging the attachment. The High Court previously dismissed the petition on grounds of alternative statutory remedy under Section 84 CrPC and allowed the petitioner to raise objections before the Magistrate.
However, when the Magistrate refused to entertain those objections until a compliance report was received from the Deputy Commissioner, the petitioner returned to the High Court leading to these observations.
Case Title: Sheikh Showkat Vs Ghulam Jeelani Chesti & Ors.
Citation: 2025 LiveLaw (JKL)
