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Rajasthan High Court · body

2005 DIGILAW 3182 (RAJ)

Maggi Bai v. State of Raj.

2005-12-01

R.P.VYAS, RAJESH BALIA

body2005
Honble BALIA, J.–Heard learned counsel for the applicants as well as Mr. Panney Singh learned counsel for C.B.I. on whose application the impugned order was passed. (2). Learned counsel for the applicants contends that the order was passed by the Trial Court on 2.6.2005 on application moved by the prosecuting agency, C.B.I. under Section 13 of the Criminal Law Amendment Ordinance, 1944 (hereinafter called Ordinance 1944) for confiscating the property attached under the provisions of the said Act to the Government. The learned trial Judge has allowed the application of the respondent for confiscating the property belonging to the applicants, which was under attachment order. (3). The appeal, against the order of conviction passed by the Trial Court, had been filed before this Court and is still pending as S.B. Criminal Appeal No. 480/2005 which has been ordered to be heard along with D.B. Criminal Appeal No. 505/2005, filed by Deep Chand. (4). It is contended that in view of the pendency of the appeal, in terms of sub-section (2) of Section 2 of the Ordinance 1944, the criminal proceedings against the applications have not been terminated. Therefore, the order of confiscation under Section 13 of the Ordinance 1944 could not have been made or on appeal having been filed, the order of confiscation, if already passed could not have been implemented until the criminal proceedings are terminated in accordance with the provisions of Section 2(2) of the Ordinance 1944. The fact about the pendency of the appeal is not in dispute. (5). In view thereof, it is urged that for the purpose of Ordinance, 1944, it cannot be said that the criminal proceedings against the applicants were terminated. Consequently, the order under Section 13, which has pre-condition that before it is invoked the criminal proceedings must have terminated could not have been passed. (6). Under the scheme of Ordinance of 1944, as per Sec. 3 where the State Government or the Central Government has reason to believe that any person has committed any scheduled offence, whether or not any court has taken cognizance of it, authorise the making of an application to the District Judge within local limits of whose jurisdiction, the said person ordinarily resides or carries on business, for attachment of the money or other property which the appropriate Government believes to have been procured by such person by means of the offence. If for any reason such money or property cannot be attached, other property of the said person of value as nearly as as may be equivalent to that ill procured property or money may be attached. (7). Sec. 4 deals with interim attachment of such property or money without delay unless the District Judge is prima facie satisfied for reason to be recorded in writing that no ground exists for believing that the person in respect of whom application is made has committed any scheduled offence or that he has produced thereby any money of other property. Simultaneously with issuing interim order of attachment u/s 4(1), the District Judge is required to issue notice of such application accompanying with copy of applicants affidavit and evidence, if any, recorded, to the person whose money or other property is sought to be attached. Such notice shall also be accompanied with copy of the order of interim attachment. (8). Notices are also required to be issued to other persons representing to the District Judge as having or likely to have any interest in the property of the persons to whom notices have been given. (9). Any person claiming interest in such property is entitled to file objection to continuance of attachment, even if no notice is issued to him. (10). After investigation into objections the District Judge may pass final order making the attachment absolute or modify the earlier order by attaching only part of the property attached and release the part of it or withdraw the attachment. (11). Such attachment can also be made in case the property is transferred malafide, and is in the hands of transfers as per Sec. 6. (12). Sec. 8 envisages that any person whose property has been attached may apply for permission to offer security in lieu of attachment. (13). Sec. 13 deals with disposal of attached property upon termination of criminal proceedings. (14). It will be apposite to notice relevant part of Sec. 13(1) of the Ordinance, 1944:– ``13. (12). Sec. 8 envisages that any person whose property has been attached may apply for permission to offer security in lieu of attachment. (13). Sec. 13 deals with disposal of attached property upon termination of criminal proceedings. (14). It will be apposite to notice relevant part of Sec. 13(1) of the Ordinance, 1944:– ``13. Disposal of attached Property upon termination of criminal proceedings:– (1) Upon the termination of any criminal proceedings for any scheduled offense in respect of which any order of attachment of property has been made under this Ordinance or security given in lieu thereof, the agent of the [State] Government [or as the case may be, the Central Government] shall without delay inform the District Judge, and shall where criminal proceedings have been taken in any Court, furnish the District Judge with a copy of the judgment or order of the trying Court and with copies of the judgment or orders, if any, of the appellate or revisional Courts thereon. (2) Where it is reported to the District Judge under sub- section (1) that cognizance of the alleged scheduled offense has not been taken or where the final judgment or order of the criminal Courts is one of acquittal, the District Judge shall forthwith withdraw any orders of attachment of property made in connection with the offense, or where security has been given in lieu of such attachment, order such security to be returned. (3) Where the final judgment or order of the Criminal Courts is one of conviction the District Judge shall order that from the property of the convicted person attached under the Ordinance or out of the security given in lieu of such attachment there shall be forfeited to [Government] such amount or value as is found in the final judgment or order of the Criminal Courts in pursuance of Section 12 to have been procured by the convicted person by means of the offense together with the costs of attachment as determined by the District Judge and where the final judgment or order of the Criminal Courts has imposed or upheld a sentence of fine on the said person (whether alone or in conjunction with any other punishment), the District Judge may order, without prejudice to any other mode of recovery, that the said fine shall be recovered from the residue of the said attached property or of the security given in lieu of attachment. (15). Sub-section (1) of Section 13 clearly obligates the agent of the State Government or the Central Government as the case may be, to inform the District Judge about termination of criminal proceedings for any scheduled offense in respect of which any order of attachment has been made. Where the criminal proceedings have been taken in any superior Court, he is required to furnish the District Judge a copy of the judgment or order of the trying Court and also with copies of the judgments or orders, if any, of the appellate or revisional Courts thereon. (16). The District Judge once is informed or reported about the final order, that cognizance of scheduled offense has not been taken or where the final judgment or order of the Criminal Courts is of acquittal, the District Judge is to withdraw the order of attachment of the property, or order the return of the security in lieu of attachment, if any, furnished by the accused. (17). (17). However, where the final order is one of conviction, the District Judge is required to order that from the property of the convicted person attached under Ordinance 1944 or out of security given in lieu of such attachment there shall be forfeited such amount or value of property to the Government, as is found in the final judgment or order of the Criminal Court to have been procured by convicted person by means of the offence together with the cost of attachment. Where as per final judgment, fine has been imposed, the District Judge may order without prejudice to any other mode of recovery, that said fine shall be recovered from the residue of attached property or of the security given in lieu of attachment. (18). However, the key expression is `upon termination of any criminal proceedings. That is to say Section 13 comes into operation only on termination of criminal proceedings for any scheduled offence in respect of which any order of attachment has been made. (19). (18). However, the key expression is `upon termination of any criminal proceedings. That is to say Section 13 comes into operation only on termination of criminal proceedings for any scheduled offence in respect of which any order of attachment has been made. (19). Expression ``Termination of Criminal Proceedings have been defined u/s 2(2) of the Ordinance as under:– ``2(2) For the purpose of this Ordinance, the date of the termination of criminal proceedings shall be deemed to be– (a) Where such proceedings are taken to the Supreme Court in appeal, whether on the certificate of a High Court or otherwise, the date on which the Supreme Court passes its final orders in such appeal or; (b) Where such proceedings are taken to the High Court and orders are passed thereon and– (i) no application for a certificate for leave to appeal to the Supreme Court is made to the High Court, the day immediately following the expiry of ninety days from the date on which the High Court passed its final orders; (ii) an application for a certificate for leave to appeal to the Supreme Court has been refused by the High Court, the day immediately following the expiry of sixty days from the date of the refusal of the certificate; (iii) a certificate for leave to appeal to the Supreme Court has been granted by the High Court, but no appeal is lodged in the Supreme Court the day immediately following the expiry of thirty days from the date of the order granting the certificate; or (C) Where such proceedings are not taken to the High Court, the day immediately following the expiry of sixty days from the date of the last judgment or order of a criminal court in the proceedings. (20). The reference to the various echelons of the court where criminal proceedings may be carried and final orders passed by such Courts in the definition of ``termination of criminal proceedings for the purpose of Ordinance makes it abundantly clear that the order of confiscation and forfeiture of the property attached or of the security given in lieu thereof may be made only after the final orders of the superior courts are made if the proceedings are taken to superior Courts. Conviction or acquittal by the final court is to be brought to the notice of the District Judge by the agent of appropriate Government. Conviction or acquittal by the final court is to be brought to the notice of the District Judge by the agent of appropriate Government. Significantly in sub-section (2) and (3) expression ``Final judgment or order has been used by legislature. It is only after the proceedings attain finality in terms of the final judgment or order that the District Judge can pass the order in accordance with the final orders terminating the criminal proceedings. (21). This exercise does not appear to have been done in this case either by the applicant party or by the District Judge, whose order is under challenge. (22). In these circumstances, the impugned order forfeiting the property of the accused to the Government, convicted by the Trial Court, but whose appeal against such conviction is pending before this Court cannot be sustained. (23). Accordingly the order under challenge in this petition to the extent it forfeits the property of persons convicted by the Trial Court but against which order appeal is pending, which was under attachment during the trial, is modified and it is directed that such property cannot be auctioned in pursuance of forfeiture order. The order of the forfeiture must be kept in abeyance until the final termination of the criminal proceedings in accordance with the provisions of Ordinance 1944. However, the attachment of said property shall remain in force until final termination of criminal proceedings. Thereafter the appropriate orders may be passed in accordance with final result of the proceedings, when the District Judge is informed of such result by filing copies of judgments and orders in accordance with Sec. 13. (24). The criminal misc. petition, accordingly, stands disposed off. (25). No costs.