Section 85 CrPC: Release, Sale and Restoration of Attached Property and Appeal under Section 86

Sections 85 and 86 of the Code of Criminal Procedure, 1973 dealt with the release, sale and restoration of property attached after a proclamation against an absconding person, and the right of appeal where restoration was refused. This article explains the law applicable under the CrPC before implementation of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Meaning and scope of Section 85 CrPC

Section 85 CrPC was titled "Release, sale and restoration of attached property". It operated after attachment of property under Section 83 CrPC. Its purpose was to regulate what happens to attached property depending on whether the proclaimed person appears within time, remains absent, or later satisfies the Court that the statutory conditions for restoration are met.

Release of property when the proclaimed person appears - Section 85(1)

This provision connects the attachment with the proclamation process. Timely appearance therefore removes the basis for continuing the attachment under this mechanism.

When can attached property be sold? - Section 85(2)

If the proclaimed person does not appear within the time stated in the proclamation, the attached property is placed at the disposal of the State Government. Section 85(2), however, imposed safeguards before sale:

• ordinarily, the property could not be sold until six months had expired from the date of attachment; and
• any claim or objection made under Section 84 CrPC had to be disposed of before sale.

An earlier sale could be ordered where the property was subject to speedy and natural decay or where the Court considered sale beneficial to the owner.

Restoration within two years - Section 85(3)

Section 85(3) provided a further remedy where the person appeared voluntarily, or was apprehended and brought before the competent Court, within two years from the date of attachment. Restoration was not automatic. The person had to satisfy the Court on both statutory requirements:

• that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant; and
• that he did not have such notice of the proclamation as would have enabled him to attend within the time specified.

If those requirements were proved, the property was to be delivered back after deduction of the costs incurred because of the attachment. If the property had already been sold, the net sale proceeds were to be delivered. If only part had been sold, the net proceeds of that part and the remaining property were to be delivered.

Section 86 CrPC: Appeal against refusal to restore attached property

Section 86 was titled "Appeal from order rejecting application for restoration of attached property". A person falling within Section 85(3), who was aggrieved by refusal to deliver the property or its sale proceeds, could appeal to the Court to which appeals ordinarily lay from sentences passed by the Court that refused restoration.

Practical points for an appeal under Section 86

The appellant would ordinarily need to identify the attachment and proclamation proceedings, the application made under Section 85(3), the order refusing delivery, and the material relied upon to show compliance with the two conditions in Section 85(3). The appellate forum is determined by the ordinary appellate channel from the sentences of the Court whose refusal is challenged.

Relationship with Sections 82 to 84 CrPC

The provisions formed a connected statutory sequence. Section 82 CrPC governed proclamation for a person absconding; Section 83 CrPC governed attachment; Section 84 CrPC governed claims and objections by persons asserting an interest in attached property; Section 85 governed release, sale and restoration; and Section 86 provided the specified appeal against refusal of restoration.

Corresponding provisions under BNSS

For proceedings governed by the Bharatiya Nagarik Suraksha Sanhita, 2023, the corresponding provisions are Section 88 BNSS for release, sale and restoration and Section 89 BNSS for appeal. The numbering of the connected provisions also changed: claims and objections are dealt with in Section 87 BNSS.

This page explains the statutory scheme for general legal information. The applicable provision and procedural route should be checked against the date and facts of the particular proceeding.