Section 85 CrPC: Release, Sale and Restoration of Attached Property - Section 88 BNSS
Section 85 of the Code of Criminal Procedure, 1973 (CrPC) governed the release, sale and restoration of property attached following a proclamation against an absconding person. Its corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is Section 88.
What is release, sale and restoration of attached property?
Attachment is a court-directed legal measure affecting property in proceedings to compel a person's appearance. Release removes that attachment. Sale is the disposal of attached property under the statutory conditions. Restoration is the return of eligible property or its net sale proceeds after the statutory requirements are satisfied.
The provisions operate alongside proclamation and attachment procedures: Section 82 CrPC and Section 83 CrPC, corresponding broadly to Sections 84 and 85 BNSS. Third-party claims and objections are governed by Section 84 CrPC or Section 87 BNSS, as applicable.
Section 88 BNSS and Section 85 CrPC explained
Subsection (1): Release when the proclaimed person appears on time
If the proclaimed person appears within the period specified in the proclamation, the court must order release of the attached property. The provision uses mandatory language and is directed at the attachment arising from that proclamation.
Subsection (2): State Government custody and restrictions on sale
If the proclaimed person fails to appear within the specified period, the attached property is at the disposal of the State Government. Ordinarily, it cannot be sold until six months from the date of attachment have expired and claims or objections under Section 87 BNSS (formerly Section 84 CrPC) have been disposed of.
The court may, however, direct an earlier sale where the property is subject to speedy and natural decay or the court considers sale beneficial to the owner. Being at the disposal of the State Government does not mean that immediate sale is automatically permitted.
Subsection (3): Restoration within two years
Within two years from the date of attachment, a person whose property has come under subsection (2) may appear voluntarily or be apprehended and brought before the court that ordered attachment, or a court to which it is subordinate. Restoration requires proof satisfactory to that court that the person did not abscond or conceal himself to avoid execution of the warrant and lacked sufficient notice of the proclamation to attend within the specified period.
When those conditions are met, the court must deliver the property, the net proceeds if it has been sold, or the unsold property together with net proceeds of the portion sold, after deducting costs incurred because of the attachment.
Key statutory time limits
| Event | Time limit or condition |
|---|---|
| Appearance following proclamation | Within the time specified in the proclamation |
| Ordinary restriction on sale | Six months from attachment, and disposal of relevant claims or objections |
| Application of subsection (3) restoration protection | Appearance or production before the relevant court within two years from attachment |
| Earlier sale | Possible for property subject to speedy and natural decay, or where sale benefits the owner |
How to seek restoration and challenge a refusal
A person seeking restoration should identify the attachment order and property, the date of attachment, the proclamation and relevant appearance dates, and evidence supporting the two statutory requirements concerning absence of deliberate evasion and lack of adequate notice. The competent court evaluates those matters on the evidence.
If restoration of property or sale proceeds is refused, Section 86 CrPC, or the corresponding Section 89 BNSS, provides an appeal to the court to which appeals ordinarily lie from sentences of the court refusing restoration. The applicable procedural regime and limitation rules should be checked for the individual case.
Claims by persons other than the proclaimed person raise a different question: their interests in attached property may be considered through the claims-and-objections procedure in Section 87 BNSS or Section 84 CrPC, rather than solely through the restoration mechanism described here.
Section 85 of the Code of Criminal Procedure, 1973 - substantive provisions
Section 85(1): Where the proclaimed person appears within the time specified in the proclamation, the court shall order release of the property from attachment.
Section 85(2): Where the person does not appear, the attached property is at the disposal of the State Government. It must not ordinarily be sold before six months from attachment or before disposal of claims or objections under Section 84 CrPC. Exceptions permit sale of property subject to speedy and natural decay or where sale benefits its owner.
Section 85(3): Where the person appears or is brought before the appropriate court within two years from attachment and establishes both absence of intent to evade the warrant and insufficient notice of the proclamation, the court shall restore the property or relevant net sale proceeds, less costs caused by attachment.
These paragraphs preserve the substantive meaning of the original three subsections in readable form. For exact statutory wording, consult the official enactments linked below.
Official legislation and references
- Bureau of Police Research and Development - Bharatiya Nagarik Suraksha Sanhita, 2023 (PDF), including Section 88 and the related provisions.
- Maharashtra Police - Code of Criminal Procedure, 1973 (PDF), including Section 85.
- India Code - official central legislation database (search by Act name and section).
Frequently asked questions
Which BNSS section replaced Section 85 CrPC?
Section 88 BNSS corresponds to Section 85 CrPC and concerns release, sale and restoration of attached property.
Can attached property be sold immediately?
Ordinarily no. The six-month restriction and disposal of relevant objections apply, subject to the statutory exceptions for perishable property or sale beneficial to its owner.
Can attached property be restored after sale?
Yes, where the requirements of subsection (3) are satisfied, the eligible person may receive net sale proceeds after deduction of attachment-related costs.
Is Section 85 CrPC still relevant?
Yes, for understanding the earlier law and proceedings governed by the CrPC savings provisions. For the current corresponding provision, consult Section 88 BNSS.
This article provides general legal information, not advice for a specific case. Verify the applicable law and court orders before acting.