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Section 85(3) CrPC: Legal Heirs Of Accused Can Approach Court For Release Of Attached Property After Expiry Of Statutory Period: Kerala HC

Raashi Saxena ,
  15 November 2022       Share Bookmark

Court :
Hon’ble High Court of Kerala
Brief :

Citation :
2022 LiveLaw (Ker) 582

Vishnu M Vs. State of Kerala & Anr.

12th October 2022

Justice Ziyad Rahman A. A.

Petitioner : VISHNU.M


The Kerala High Court recently stated that nothing will prevent the legal heir of the accused from submitting an application even when the accused is no longer alive, reiterating that there is no absolute prohibition in entertaining an application under Section 85(3) CrPC at the instance of an accused even after the expiration of the statutory period.


Section 85(3) of the CrPC

  • Section 85 talks about release, sale and restoration of attached property.
  • According to section 85(3), if, within two years from the date of the attachment, any person whose property is or has been at the State Government's disposal under subsection (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.

Section 86 of the CrPC

  • Any person listed in Section 85, Subsection (3), who feels wronged by a failure to surrender property or the sale proceeds may file an appeal with the court to which appeals from the first-mentioned Court's judgments typically lie.


  • A 22-year-old had earlier sought that their Nooranad village property be released from attachment before Chief Judicial Magistrate of Kottayam. The property had been seized by the court in 2009 during a proceeding involving his father.
  • The petitioner Vishnu M. only learned of the attachment after his father passed away. The magistrate rejected his application on the grounds of delay because it was submitted more than two years after the attachment.


  • The main issue here was whether the petitioner was entitled to the property even after the delay in his application u/s 85(3) of the CrPC.


  • Advocate M. R. Sarin, who represented the petitioner in court, argued that neither the petitioner nor his father were made aware of the proceedings taking place before the Chief Judicial Magistrate and that no summons was ever delivered to them.
  • The attorney said that because the petitioner was unaware of the processes, he could not have submitted the application within the allotted time frame.
  • Additionally, it was asserted that since the petitioner's father passed away in 2017, all legal actions against him (the father) had been halted.


  • On the other hand, Public Prosecutor Advocate Sreeja V argued that the petition is not maintainable because the petitioner has access to an alternative remedy under Section 86 CrPC.
  • The PP also claimed that since the request to release the attached property was made beyond the two-year waiting period specified in Section 85(3) of the Cr.P.C., the government already owns the property and the petitioner's only option is to ask the State to release the property.


  • The court was of the view that it is important to keep in mind that the petitioner is the son of a dead accused during the application of the established rules while deciding this case.
  • The court further noted that the attachment was authorised in 2009, but the petitioner received the right to the subject property through inheritance in 2020 following the passing of his father.
  • Regarding the argument made that the petition could not be maintained because an alternative remedy existed, the court stated that the petition might be considered after taking into account the unusual facts and circumstances of the case.


  • Justice Ziyad Rahman A. A. cited the court's recent ruling in Transsafe Refrigeration Private Ltd. (M/s) and another v. State of Kerala and another [CRL.MC NO. 5610 OF 2022], where it was determined that an application at the accused's request can still be considered after the allotted time period had passed.
  • The court granted the petition and sent the case back to the magistrate for new consideration.

Click here to download the original copy of the judgement

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