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2002 DIGILAW 481 (KAR)

NANA RAO v. UNION OF INDIA

2002-08-06

N.K.JAIN, V.G.SABHAHIT

body2002
V. G. SABHAHIT, J. ( 1 ) THIS PETITION IS FILED BY SRI NANA RAO WHO IS A RETIRED DEPUTY SUPERINTENDENT of POLICE, HAVING SERVED BOTH IN THE STATE GOVERNMENT AND IN the CENTRAL BUREAU OF INVESTIGATION. IT IS AVERRED THAT THIS IS A PUBLIC interest LITIGATION AND ON THE WRIT PETITION FILED BY THE PETITIONER IN W. P. NO. 17433 OF 1997 DIRECTIONS TO INVESTIGATE OFFENCE OF DISPROPORTIONATE assets PUNISHABLE UNDER SECTION 13 (L) (E) OF THE PREVENTION OF CORRUPTION act WAS INITIATED AGAINST SRI S. BANGARAPPA WHICH ENDED IN THE CENTRAL bureau OF INVESTIGATION PLACING A CHARGE-SHEET AGAINST HIM IN C. C. NO. 47 OF 1999. IT IS FURTHER AVERRED THAT SINCE THE ACCUSED IN THE SAID CASE IS trying TO ALIENATE PROPERTIES AND IF IT IS NOT STOPPED, EVEN IF THE CASE ends IN CONVICTION AND THERE IS AN ORDER OF FORFEITURE OF HIS ILLEGALLY obtained ASSETS, THE PROPERTY CANNOT BE FORFEITED AND WHEREFORE, THE petitioner GOT ISSUED NOTICE DATED 5-3-2002 AS PER ANNEXURE-A TO THE first RESPONDENT-UNION OF INDIA REQUESTING IT TO MAKE AN APPLICATION under SECTION 3 OF THE CRIMINAL LAW AMENDMENT ORDINANCE, 1944 (IN short, THE ORDINANCE' ). HE ALSO MADE REPRESENTATION TO THE LOKAYUKTA, additional DIRECTOR GENERAL OF POLICE, DIRECTOR GENERAL OF POLICE, CHIEF secretary, GOVERNMENT OF KARNATAKA AS PER ANNEXURES-C TO F REQUESTING them TO MAKE AN APPLICATION UNDER SECTION 3 OF THE ORDINANCE, authorising THE FILING OF AN APPLICATION TO THE DISTRICT JUDGE FOR ATTACHMENT of THE PROPERTIES IN SOME CASES AND ALSO IN ALL CASES FALLING UNDER the OFFENCES MENTIONED IN THE SCHEDULE TO THE ORDINANCE BUT NO ACTION has BEEN TAKEN IN THE MATTER AND WHEREFORE, THIS WRIT PETITION HAS BEEN filed FOR THE FOLLOWING PRAYERS: (A) WRIT OF MANDAMUS DIRECTING THE RESPONDENTS TO INITIATE ACTION under SECTION 3 (1) OF THE ORDINANCE IN ALL CASES IN WHICH THEY HAVE committed OFFENCES REFERRED TO IN THE SCHEDULE TO THE ORDINANCE, PARTICULARLY against SRI S. BANGARAPPA AND SRI KARIMLAL AND OTHERS OR IN the ALTERNATIVE. (B) TO ISSUE A WRIT OF MANDAMUS OR DIRECTION TO THE RESPONDENTS TO examine FEASIBILITY OR NECESSITY TO INITIATE ACTION UNDER SECTION 3 (1) OF the ORDINANCE AGAINST THOSE ACCUSED PERSONS WHO HAVE COMMITTED OFFENCES falling UNDER THE SCHEDULE TO THE ORDINANCE. (C) FOR SUCH OTHER APPROPRIATE WRIT OR DIRECTION AS THE CASE MAY BE including THE AWARD OF COST. (B) TO ISSUE A WRIT OF MANDAMUS OR DIRECTION TO THE RESPONDENTS TO examine FEASIBILITY OR NECESSITY TO INITIATE ACTION UNDER SECTION 3 (1) OF the ORDINANCE AGAINST THOSE ACCUSED PERSONS WHO HAVE COMMITTED OFFENCES falling UNDER THE SCHEDULE TO THE ORDINANCE. (C) FOR SUCH OTHER APPROPRIATE WRIT OR DIRECTION AS THE CASE MAY BE including THE AWARD OF COST. ( 2 ) HEARD THE LEARNED COUNSEL APPEARING FOR THE PETITIONER AND PERUSED the MATERIAL ON RECORD. ( 3 ) THE LEARNED COUNSEL APPEARING FOR THE PETITIONER SUBMITTED THAT the PROVISIONS OF THE ORDINANCE, ARE STILL IN FORCE AND THE SAME HAVE been AMENDED FROM TIME TO TIME INCLUDING THE AMENDMENT MADE BY THE prevention OF CORRUPTION ACT, 1988 TO THE PROVISIONS OF THE ORDINANCE. HE SUBMITTED THAT IF AN APPLICATION FOR ATTACHMENT OF THE PROPERTIES secured BY COMMITTING THE OFFENCE IS NOT MADE BEFORE THE DISTRICT JUDGE as PER SECTION 3 OF THE ORDINANCE, EVEN IF THE CASE ENDS IN CONVICTION AND forfeiture OF THE PROPERTY THE SAME CANNOT BE EXECUTED AS THE ACCUSED would ALIENATE THE PROPERTIES DURING THE PENDENCY OF THE CASE AGAINST them AND WHEREFORE IT IS NECESSARY TO DIRECT THE RESPONDENTS TO MAKE AN application UNDER SECTION 3 (1) OF THE ORDINANCE, IN PARTICULAR AGAINST SRI s. BANGARAPPA AND SRI KARITNLAL AND MANDAMUS MAY ALSO BE ISSUED TO initiate ACTION UNDER SECTION 3 (1) OF THE ORDINANCE AGAINST THE ACCUSED persons WHO HAVE COMMITTED OFFENCE FALLING UNDER SCHEDULE TO THE ORDINANCE. ( 4 ) THE ORDINANCE WAS ENACTED IN EXERCISE OF THE POWER UNDER SECTION 72 OF THE GOVERNMENT OF INDIA ACT, 1935 AND WAS SET-OUT IN THE MAIN schedule TO THE SAID ACT WITH A VIEW TO PREVENT DISPOSAL OR CONCEALMENT of MONEY OR OTHER PROPERTY PROCURED BY MEANS OF CERTAIN OFFENCES PUNISHABLE under THE INDIAN PENAL CODE. SECTION 3 (1) OF THE ORDINANCE reads AS FOLLOWS:"3. APPLICATION FOR ATTACHMENT OF PROPERTY. SECTION 3 (1) OF THE ORDINANCE reads AS FOLLOWS:"3. APPLICATION FOR ATTACHMENT OF PROPERTY. (1) WHERE THE state GOVERNMENT OR AS THE CASE MAY BE, THE CENTRAL GOVERNMENT has REASON TO BELIEVE THAT ANY PERSON HAS COMMITTED (WHETHER after THE COMMENCEMENT OF THIS ORDINANCE OR NOT) ANY SCHEDULED offence, THE STATE GOVERNMENT OR AS THE CASE MAY BE THE CENTRAL government MAY, WHETHER OR NOT ANY COURT HAS TAKEN COGNISANCE of THE OFFENCE, AUTHORISE THE MAKING OF AN APPLICATION TO THE district JUDGE WITHIN THE LOCAL LIMITS OF WHOSE JURISDICTION THE SAID person ORDINARILY RESIDES OR CARRIES ON BUSINESS, FOR ATTACHMENT under THIS ORDINANCE OF THE MONEY OR OTHER PROPERTY WHICH THE state GOVERNMENT OR AS THE CASE MAY BE, THE CENTRAL GOVERNMENT believes THE SAID PERSON TO HAVE PROCURED BY MEANS OF THE OFFENCE, or IF SUCH MONEY OR PROPERTY CANNOT FOR ANY REASON BE ATTACHED OF other PROPERTY OF THE SAID PERSON OR VALUE AS NEARLY AS MAY BE equivalent TO THAT OF THE AFORESAID MONEY OR OTHER PROPERTY". ( 5 ) IT IS CLEAR FROM THE ABOVE SAID PROVISIONS THAT THE APPLICATION HAS to BE MADE BEFORE THE DISTRICT COURT AND IN VIEW OF THE AMENDMENT TO the ORDINANCE OF PREVENTION OF CORRUPTION ACT, 1988, APPLICATION CAN BE on THE BASIS OF AUTHORISATION ISSUED BY THE STATE GOVERNMENT OR THE central GOVERNMENT IF THEY HAVE REASON TO BELIEVE: (1) THAT A PERSON HAS COMMITTED A SCHEDULED OFFENCE; AND (2) THAT THE SAID PERSON HAS PROCURED ANY MONEY OR OTHER property BY MEANS OF SUCH OFFENCE. ( 6 ) THE SCHEDULE TO THE ORDINANCE CONTAINS THE OFFENCES PUNISHABLE under THE PREVENTION OF CORRUPTION ACT, 1988, AS INSERTED BY THAT ACT, and WHEREFORE, IT IS OPEN TO THE STATE OR THE CENTRAL GOVERNMENT TO make AN APPLICATION UNDER SECTION 3 (1) OF THE ORDINANCE. ( 6 ) THE SCHEDULE TO THE ORDINANCE CONTAINS THE OFFENCES PUNISHABLE under THE PREVENTION OF CORRUPTION ACT, 1988, AS INSERTED BY THAT ACT, and WHEREFORE, IT IS OPEN TO THE STATE OR THE CENTRAL GOVERNMENT TO make AN APPLICATION UNDER SECTION 3 (1) OF THE ORDINANCE. HOWEVER, THE government HAS TO SATISFY ITSELF ABOUT THE ABOVE SAID TWO CONDITIONS before MAKING AN APPLICATION UNDER SECTION 3 (1) OF THE ORDINANCE AND IT is CLEAR FROM THE EXHIBITS PRODUCED WITH THE WRIT PETITION BY THE petitioner THAT HE HAS ALREADY MADE REPRESENTATION TO THE CENTRAL GOVERNMENT and THE STATE GOVERNMENT AND ITS OFFICIALS AND THE LEARNED COUNSEL appearing FOR THE PETITIONER HAS ALSO PRODUCED A LETTER DATED 19-7-2002 ISSUED BY SUPERINTENDENT OF POLICE, BANGALORE, IN WHICH THE learned COUNSEL APPEARING FOR THE PETITIONER WHO HAS ISSUED NOTICE HAS been INTIMATED THAT THE SUBJECT OF REPRESENTATION IS UNDER ACTIVE CONSIDERATION with THE MINISTRY AS THE PROPOSAL HAS ALREADY BEEN ADDRESSED TO dp AND T, NEW DELHI. IT IS CLEAR THAT THE PETITIONER HAS ALREADY MADE A representation TO THE CENTRAL AND THE STATE GOVERNMENT TO MAKE AN application UNDER SECTION 3 ( 1) OF THE ORDINANCE AND IT IS FOR THEM TO consider AS. TO WHETHER AN APPLICATION UNDER SECTION 3 (1) OF THE ORDINANCE has TO BE MADE BEFORE THE COMPETENT COURT. THIS COURT CANNOT give ANY DIRECTION TO MAKE AN APPLICATION AS THE DISCRETION TO FILE SUCH application HAS TO BE EXERCISED BY THE STATE GOVERNMENT OR THE CENTRAL government ON THE BASIS OF FACTS OF EACH CASE ON FULFILMENT OF REQUISITE conditions TO MAKE APPLICATION UNDER SECTION 3 (1) OF THE ORDINANCE AND the SAME CANNOT BE DONE BY THIS COURT IN EXERCISE OF THE POWER UNDER article 226 OF THE CONSTITUTION AS THE SAME INVOLVES INVESTIGATION INTO questions OF FACT OF EACH CASE AND THERE IS NO MATERIAL BEFORE THIS COURT about RELEVANT FACTS TO SATISFY THE REQUIREMENT FOR MAKING AN APPLICATION under SECTION 3 (1) OF THE ORDINANCE. THE PETITIONER HAS ALREADY approached THE STATE GOVERNMENT AND THE CENTRAL GOVERNMENT AND HIS representation IS UNDER ACTIVE CONSIDERATION. THE PETITIONER HAS ALREADY approached THE STATE GOVERNMENT AND THE CENTRAL GOVERNMENT AND HIS representation IS UNDER ACTIVE CONSIDERATION. EVEN AS PER THE ENDORSEMENT issued TO THE PETITIONER WHICH IS PRODUCED BEFORE THE COURT, IT IS clear THAT THERE IS NO REFUSAL OF THE REPRESENTATION AND WHEREFORE THE CONDITION requisite FOR ISSUE OF MANDAMUS IS NOT SATISFIED AND THE PETITIONER IS not ENTITLED TO ANY DIRECTION IN THIS PUBLIC INTEREST LITIGATION PETITION. ( 7 ) ACCORDINGLY, THE PETITION IS DISMISSED. HOWEVER, THE DISMISSAL OF the WRIT PETITION WILL NOT PRECLUDE THE RESPONDENTS FROM CONSIDERING THE representation AND TO TAKE ACTION IN ACCORDANCE WITH LAW. --- *** --- .