Indian criminal procedure | Updated legal guide

Section 86 CrPC and Section 89 BNSS: Appeal Against Refusal to Restore Attached Property

When a court refuses to return property attached following a proclamation, or refuses to release its sale proceeds, the affected person may have a statutory right of appeal. This guide explains the former Section 86 of the Code of Criminal Procedure, 1973 and its corresponding current provision, Section 89 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Current law: The BNSS came into force on 1 July 2024. Section 89 BNSS corresponds to Section 86 CrPC. The applicable procedural law in an individual matter depends on the commencement and saving provisions, particularly Section 531 BNSS, and the procedural history of the case.

Meaning and scope of Section 86 CrPC

Section 86 CrPC, titled Appeal from order rejecting application for restoration of attached property, provided a remedy where a person covered by Section 85(3) CrPC was aggrieved by a refusal to deliver attached property or the proceeds of its sale. The appeal lies to the court that ordinarily hears appeals from sentences passed by the court that refused restoration.

The equivalent modern provision is Section 89 BNSS, which refers to Section 88(3) BNSS instead of Section 85(3) CrPC. This is a specific statutory appeal relating to restoration after attachment, not a general appeal against every attachment order.

Text of the applicable legal provisions

Section 86, Code of Criminal Procedure, 1973

Any person referred to in sub-section (3) of section 85, who is aggrieved by any refusal to deliver property or the proceeds of the sale thereof may appeal to the Court to which appeals ordinarily lie from the sentences of the first-mentioned Court.

Section 89, Bharatiya Nagarik Suraksha Sanhita, 2023

Any person referred to in sub-section (3) of section 88, who is aggrieved by any refusal to deliver property or the proceeds of the sale thereof may appeal to the Court to which appeals ordinarily lie from the sentences of the first-mentioned Court.

The operative right of appeal remains substantially the same; the cross-reference reflects the renumbering of the restoration provision under the BNSS.

Who can file an appeal?

The right belongs to a person within the restoration provision in Section 85(3) CrPC or Section 88(3) BNSS who has been refused delivery of the attached property or its sale proceeds. Under the restoration provision, the person must come before the relevant court within two years of attachment and satisfy the statutory conditions concerning absence of intent to evade the warrant and insufficient notice of the proclamation.

The court considers whether the claimant has established those conditions. Where property has been sold, restoration can concern the net proceeds; where only part was sold, it may concern the remaining property and net sale proceeds, after the attachment-related costs specified in the law.

How does the appeal work?

1. Identify the refusal order

Obtain the order refusing restoration or delivery of sale proceeds, together with the original attachment and proclamation orders, where relevant.

2. Identify the competent appellate court

Section 86 CrPC and Section 89 BNSS direct the appeal to the court to which appeals ordinarily lie from sentences of the court that issued the refusal. The proper forum therefore depends on which court made the order and the applicable appellate structure.

3. Prepare the grounds of appeal

Explain why the refusal is legally or factually incorrect. Relevant material may include proof of the circumstances of non-appearance, the notice received, the date of attachment, title or interest in the property, and any evidence presented to the court below.

4. Check limitation and filing requirements

Neither Section 86 CrPC nor Section 89 BNSS itself specifies a standalone number of days for filing this appeal. The applicable limitation rules, court procedure, and any available exclusion or condonation of delay should be checked promptly for the particular case. The two-year period in the restoration provision is not automatically the appeal-filing period.

Related provisions on proclamation and attachment

Section 82 CrPC concerns proclamation for an absconding person; Section 83 CrPC concerns attachment; Section 84 CrPC governs third-party claims and objections; and Section 85 CrPC provides for release, sale and restoration. Their corresponding BNSS provisions include Sections 84, 85, 87 and 88 respectively. Section 86 BNSS separately introduces a provision dealing with identification and attachment of property of a proclaimed person.

Frequently asked questions

What is the current equivalent of Section 86 CrPC?

Section 89 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Can a refusal to return the proceeds of sold property be appealed?

Yes. The provision expressly covers refusal to deliver the property or the proceeds of its sale to a person covered by the restoration subsection.

Does Section 89 BNSS apply to all old CrPC proceedings?

Not necessarily. Section 531 BNSS contains repeal and saving provisions. The procedural stage and commencement date must be considered before selecting the governing statute.

Official legal sources

This article is general legal information, not advice for a specific proceeding. Consult the authoritative statutory text, current rules and a qualified legal professional before filing.