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2011 DIGILAW 2269 (PAT)

Girish Kumar v. State of Bihar

2011-11-15

DHARNIDHAR JHA

body2011
JUDGMENT Dharnidhar Jha, J.-The appellants were respondents before the learned Authorized Officer , Special Court II. Vigilance, Patna in Special case No. 7 of 2010 which arose out of Vigilance P.S. Case No. 39 of 2006. The appellants challenge the order passed by the learned Authorized Officer designated under Bihar Special Courts Act. 2009 (hereinafter referred to as the 'Act') dated 23rd June, 2011 on a petition filed under Section 13 of the Act directing the confiscation of the properties described in Schedules A and B of the petition and further directing the appellants to surrender and deliver the possession over the properties contained in Schedules A and B of the petition in favour of the District Magistrate Patna who was authorized by the learned Authorized Officer to take possession of the same within thirty days of the impugned order. An alternative direction was also issued to the, District Magistrate. Patna that in case of refusal on behalf of the appellants to surrender the properties as directed by the Authorized Officer possession over the properties shall be resumed by the District Magistrate even if it required use of some force. 2. The facts leading to the passing of the impugned order may be noticed, Undisputedly, the appellant Girish Kumar was appointed as a clerk on compassionate ground on account of the demise of his father Siddheshwar Sharma in Patna Treasury, Collectorate. Patna. The appellant was appointed in 1992 and from 1992 to 2004 he had reportedly, amassed huge properties in various forms to the tune of Rs.51.10.826. It appears that certain Brajeshwar Prasad Singh had filed a complaint before the Lokayukta, Bihar and that was transmitted for enquiry by the Vigilance Department of the Government of Bihar and. "accordingly after enquiry. Vigilance P.S. Case No. 39 of 2006 was instituted and during investigation of the case, it was found out that the appellant Girish Kumar had amassed the properties by commission of the offence defined under Section 2(d) of the Act and. as such the application was filed under Section 13 of the Act before the Authorized Officer by the State of Bihar. 3. It was stated that the total income of the appellant Girish Kumar from his salary during 1992 to 2004 was Rs.6.95.340 only one third of which came to Rs.2.31.780. as such the application was filed under Section 13 of the Act before the Authorized Officer by the State of Bihar. 3. It was stated that the total income of the appellant Girish Kumar from his salary during 1992 to 2004 was Rs.6.95.340 only one third of which came to Rs.2.31.780. In addition to the above the delinquent public servant, i.e the appellant Girish Kumar had also received Rs.72.738 as half of the retiral benefits of his late father, the total of which was Rs.l,45,476 only. It was stated that the total assets which was found in possession of the appellant Girish Kumar either in his own name or in the names of other appellants stood at Rs.51.10.826 and after deducting the sum total of Rs.2.31.780 and Rs.72.738 from the total assets of Rs.51.10.826. the disproportionate asset found in possession of the appellant in any form was of Rs.48.06.308. The split up of the assets in the forms of bank deposits in different accounts standing in" the name of either Girish Kumar or in the names of other appellants was given in Schedule A besides stating that the appellants had a. motorcycle bearing registration number BR-1W-1160 of the value of Rupees thirty eight thousand and he had also purchased a pistol and cartridges 8.8 per licence which was of the value of Rupees forty thousand. In addition to the above the appellant Girish Kumar had a Maroti Zen car costing Rs. 4,48.190 in addition to possessing a tractor and a trailer in the name of his brother Sachchidanand Singh, which was of the value of Rupees three lacs. The immovable properties were described in Schedule B and as per those details the appellant was found in possession of a plot of land measuring 1905 sq. ft. in Shivptui mohalla. Patna and another at Park Road. Kadamkuan. valued at Rs3.67.362 and Rs.5.28.308 respectively, both properties standing in the name of Smt. Safalta Devi. one of the appellants who was the wife of appellant Girish Kumar. A third house was standing in the same Park Road. Kadamkuan which was of the value of Rs.5.28.392 and thus the value of the immovable properties along with buildings came to Rs.14.24.056 only. one of the appellants who was the wife of appellant Girish Kumar. A third house was standing in the same Park Road. Kadamkuan which was of the value of Rs.5.28.392 and thus the value of the immovable properties along with buildings came to Rs.14.24.056 only. It was alleged that the properties were acquired by commission of the offence under Section 2(d) of the Act and they were liable to be confiscated in view of the provisions of the Act. 4. On presentation of the petition under Section 13 of the Act it appears notices were issued to the appellants and they appeared in response thereto and filed their respective show cause cum statements in defence before the learned Authorized Officer. The main statement of defence appears filed by the appellant Girish Kumar and while the other appellants were also filing their written statements of defence, they were mainly relying upon the major part of the statement made by appellant Girish Kumar. It was stated by the appellant Girish Kumar that Maruti Zen car was not valued at Rs. 4,48.190 rather it had costed him Rs.3.33.339 only and the same was purchased on availing a car loan from State Bank of India. BSEB branch which was of Rs. 2.58.399 only. So far as the acquisition of three plots including building as per Schedule B of the application under Section 13 of the Act was concerned, appellant Girish Kumar stated that the appellants were members of Hindu undivided family and they had ancestral irrigated land which generated agricultural income which was not taxable and out of agricultural income of the land and the retiral benefit of his father as also loans taken from his friends and relatives those properties were acquired and some part of the payment was made from the account maintained by the appellant Girish Kumar in State Bank of India. Gandhi Maidan Branch, Likewise, so far as the total deposit of Rs. 27,41.555 in his bank account number 01190015057 was concerned, it was stated that it had already been closed on 15.7.2004 and the total transaction was more than the above amount and. thus, were not illegal. Likewise, the appellant was also explaining his fixed deposits as per Schedule A to the petition which was in the sum of Rs.90,000 by stating that those were the -investments made out of the agricultural income of the family of the appellants. thus, were not illegal. Likewise, the appellant was also explaining his fixed deposits as per Schedule A to the petition which was in the sum of Rs.90,000 by stating that those were the -investments made out of the agricultural income of the family of the appellants. As ,regards the acquisition of motorcycle and the pistol and cartridges, it was stated that the motorcycle was not the property of Girish Kumar or any of the appellants rather the same belonged to one Akhilesh Kumar, who was sometimes the tenant in the house of the appellant and the pistol and cartridges were purchased out of the agricultural income. On the allegation of acquiring the tractor of the value of rupees three lacs, the reply of the appellants was that the tractor stood registered in the name of the appellant Sachchidanand Singh. brother of the appellant Girish Kumar and the appellant Girish Kumar had contributed only Rs. 95,000 and remaining amount was pooled from the agricultural income of the joint family. It was stated that Sachchidanand Singh was employed as Yakshma Sahayak at Hariharpur in the district of Sahebganj and he served from 20.2.1987 to 11.5.1992 on which date he was terminated and he had his own source of income and some part of the money had also been contributed by appellant Sachchidanand Singh in purchase of the tractor. 5. Appellant Girish Kumar stated that the State Government had illegally bifurcated the retiral benefit which was received on demise of his father in two halves one part going to appellant Girish Kumar and the other to his mother. In fact the appellant pleaded he had received the whole of the amount which was paid as retiral benefits which were due to his demised father. It was also stated that the agricultural income had not been taken into account and those were tile reasons that the State of Bihar had filed a completely untenable petition. 6. Appellant Saphalta Devi, who is the wife of appellant Girish Kumar, filed her separate statement of defence and stated that initially the plot situated at Sheopuri, Patna pertaining to plot No. 163. 6. Appellant Saphalta Devi, who is the wife of appellant Girish Kumar, filed her separate statement of defence and stated that initially the plot situated at Sheopuri, Patna pertaining to plot No. 163. Khata No. 734 was purchased out of the savings of appellant Girish Kumar together with agricultural income of the family and the family pension and agricultural income of the family of appellant Girish Kumar in addition to taking loans from friends and relatives and the loans which were borrowed from mends and relatives were repaid by appellant Girish Kumar through cheques to be drawn at the account of appellant Girish Kumar at Gandhi Maidan branch of SBI. It was stated by the appellant Saphalta Devi that she did not maintain any separate bank account and her income. i.e., gifts received from her parents was deposited in the SBI account of her husband Likewise the mother of Girish Kumar was also not having any account except that in which she used to receive her pensionary benefits and. as such the whole agricultural income of the family was being deposited in the account of appellant Girish Kumar. 7. So far as acquisition of the two immovable properties in Kadamkuan is concerned, it was stated that before acquiring properties in Park Road. Kadamkuan, appellant Saphalta Devi sold her plot of land situated in Sheopuri Patna which was earlier agreed to be sold to one Shri Krishna Singh and others after having received a premium of Rupees three lacs The subsequent sale was for Rupees five lacs out of which the premium of Rupees three lacs received from earlier three prospective purchasers was returned and the two plots in Kadamkuan was purchased. The remaining amount in addition to Rupees three lacs was pooled from the income of joint family generated through the irrigated agricultural land and as such there was no illegality in acquisition of the properties. The same stand was taken by Smt. Saphalta Devi also as regards the acquisition of trailer and tractor for Rupees three lacs as was done by her husband. 8. The two sons of Girish Kumar and Safalta Devi who are also appellants had also been noticed under Section 14 of the Act to appear and file their show cause 8gainst confiscation of the properties. 8. The two sons of Girish Kumar and Safalta Devi who are also appellants had also been noticed under Section 14 of the Act to appear and file their show cause 8gainst confiscation of the properties. Both of them appeared and filed their show cause taking the same stand as was taken by their parents and uncle Sachchidanand Singh. 9. The learned Authorized Officer thereafter heard the parties and' went on to consider' the allegations along with the evidence which was produced before him and directed the confiscation of the properties detailed in Schedules A and B of the petition. 10. It was contended that the motorcycle. the value of which was Rs.30.000. did not stand in the name of any of the appellants rather it stood registered in the name of one Akhilesh Kumar and as such the clubbing of that particular property for being confiscated was not proper. Sub-mission was also that the amount of Rupees four lacs as price of Maruti zen car also appears exaggerated and thereby inflating the total value of the disproportionate assets allegedly acquired by the appellants, Besides the appellants had taken out a loan from the State Bank of India for purchasing Maruti zen car and that acquisition may not be illegal Likewise, it was contended that the initial acquisition of the immovable properties at She0puri was made out of the funds generated from agricultural income and that plot was admittedly sold by the appellant Saphalta Devi to one Moina Begam for which an agreement to sale was scribed on 22.11.2003, The remaining amount for purchasing the two plots and the house at Kadamkuan was pooled from the agricultural income of the joint family properties besides personal income of the appellants and as such there was no illegality in it was lastly contended by the learned counsel for the appellants that it was malafide, on behalf of the State of Bihar and its agencies to file a petition under Section 13 of the Act and not to proceed with the trial of the case in which charge sheet, admittedly was filed long back in the year 2006 as may appear from the details of the case and investigation given by the State of Bihar in its petition under Section 13 of the Act. It was as such contended that the impugned order was bad in law as also on facts and was fit to be set aside. 11. The learned Special Public Prosecutor submitted that except the bald statements that the family was joint and it possessed substantial agricultural land which yielded sufficient produce to generate those lacs of money for purchasing the two plots at Kadamkuan or for creating a deposit of over rupees twenty seven lacs in bank account there was no evidence produced in support thereof, Even appellant Sachchidanand Singh has not said as to what was received by him as salaries etc for the period he was serving a particular organization under the State of Bihar. It was contended that bald statements are never to be the basis for considering the defence statements as it has always to be supported by some evidence raising a prima facie presumption of existence of a particular fact. It was contended as such that the order impugned is fit to be upheld. 12. This Court does not want to go into the legal aspects of the matter as it has already explained the position on all aspects of confiscation proceedings which could be taken up by the State Government through a petition filed under Section 13 of the Act in Shiv Shanker Verma v. State of Bihar reported in 2011(3) PWR813. The procedures are elaborately laid down in Chapter 3 of the Act and through relevant rule as may appear from Rules 11 and 14 of Rules. It appears from the perusal of the impugned order' and the lower Court records that there is no procedural illegality apparent on the face of the record as after the filing of the application under Section 13 of the Act the learned Authorized Officer issued notices to all concerned persons who appeared holding the properties said to be illegally acquired by commission of the offence under Section 2(d) of the Act by appellant Girish Kumar. 13. However. 13. However. it was contended that it was mala fide on the part of the State of Bihar to have filed a petition under Section 13 of the Act in respect of an offence Which was registered and investigated into quite ahead of the passing of the Act without going through the trial procedure and keeping the matter pending before the trial Court as, admittedly, the investigating agency had filed charge sheet as back as on 12.9.2006, In other words what was contended was that no confiscation proceeding could be maintained against a public servant, if the offence appeared committed prior to coming into force of the Act. This issue appears seriously raised by Shri Rana Pratap Singh the learned senior counsel appearing on behalf of the appellants and I desire to examine it. What appears suggested by the learned senior counsel was that the application of the Act could not be retrospective. 14. On examining the provisions of Chapter 3 especially that of Section 13 of the Act. one may come to a conclusion that the confiscation proceedings could never be confined to the acquisition of any properties by any public servant only after the Act had come into force. If one considers the provisions of Section 13 of the Act one may find that it is too clear to confuse the issue, The provision reads as under: "13. Confiscation of property.-(1) Where the State Government, on the basis of prima-facie evidence have reasons to believe that any person, who has held or is holding public office and is or has been a public servant has committed the offence the State Government may whether or not the Special Court has taken cognizance of the offence. authorize the Public Prosecutor for making an application to the authorized officer for confiscation under this Act of the money and other property, which the State Government believe the said person to have procured by means of the offence. (2) An application under sub-section (1)- (a) shall be accompanied by one or more affidavits. authorize the Public Prosecutor for making an application to the authorized officer for confiscation under this Act of the money and other property, which the State Government believe the said person to have procured by means of the offence. (2) An application under sub-section (1)- (a) shall be accompanied by one or more affidavits. stating the grounds on which the belied that the said person has committed the offence is founded and the amount of money and estimated value of other property believed to have been procured by means of the offence; and (b) shall also contain any information available as to the location for the time being of any such money and other property and shall, if necessary give other particulars considered relevant to the context." 15. The words 'who has held or is holding public office and is or has been a public servant' could leave no manner to doubt the scope ambit and extent as regards the application of Section 13 of the Act and could not be• confined to any prospective date to the date on which the Special Act had come into force. If a person against whom the application had been filed and against whom the State Government had reasons to believe on the basis of the prima facie evidence that he had committed the offence under Section 2(d) of the Act and had thereby acquired properties either in his own name or in the names of any other persons the date on which the Act had come into force becomes irrelevant and meaningless. The only thing to be considered by the Court by the Authorized Officer is as to whether the person against whom the application has been filed alleging commission of the offence and thereby acquisition of properties by him was indeed a public servant on the date of commission of the offence, Thus if the date of offence was prior to the date of promulgation of the Act or the date of enforcing the provision of the Act then it has always to be read as an enactment which was enforcing its provisions retrospectively. These were never to be pointed out because I have already extracted the relevant part of the provision of Section 13 of the Act. These were never to be pointed out because I have already extracted the relevant part of the provision of Section 13 of the Act. which itself is so clear as to leave any manner of doubt that the provisions had to be applied to the date of acquisition of the properties and after considering the status of the person on that particular date as that of the public servant. This I believe takes care of the argument of Sri Singh the learned senior counsel in its entirety. 16. However the grievance of the appellant that the State Government and its agencies were acting malafide to me appears of no importance so as to be taken note of when I am judging an order passed by the Authorized Officer under Section 15 of the Act, Whether the Government is sleeping over the trial due to its slackness or disinterestedness so to say in production of evidence could never be the consideration while judging an order under Section 15 of the Act on an application filed under Section 13 of the Act. A Court specially the Appellate Court has to confine itself to the allegations which have been placed on record through the application along with the supporting prima facie evidence so as to inferring reasons to believe that a public servant past or present had acquired properties disproportionate to the known sources of his income after commission of the offence under Section 2(d) of the Act which is an offence defied and made punishable under Section 13(2) of the Prevention of Corruption Act. 1988. The other aspect which the Appellate Court has to look into are as to whether the provisions of Sections 14 and 15 of the Act have duly been complied with while carrying out the proceeding of confiscation on an application under Section 13 of the Act. I have already noted that the learned lower Court does not appear committing any error on the procedural aspects of the matter as regards carrying out the proceedings after having received the petition under Section 13 of the Act. 17. I have already noted that the learned lower Court does not appear committing any error on the procedural aspects of the matter as regards carrying out the proceedings after having received the petition under Section 13 of the Act. 17. It requires hardly to be pointed out that the State Government could frame its petition if it has the prima facie evidence so as to giving it sufficient reasons to believe about commission of the offence and the acquisition of the properties by a public servant past or present, which had been found disproportionate to the known sources of his income, On an application being received notices for confiscation have to be served calling upon him to reply within the stipulated period of thirty days or which may be extended to a maximum of 45 days to the allegations and the contents of the evidence. The public servant when replying to those allegations, is supposed also to file his written statement of defence and while so doing as may appear from Rule 11 of the relevant rules which is known as Bihar Special Court Rules, 2010 (hereinafter referred to as the Rules), he may also enclose some documents or evidence in support of his statement of defence. It could be plainly clear from Rule 11 (b) of the rules that the delinquent public servant was to be given opportunity of meeting out the allegations fully and completely so that the principles of natural justice were not violated. The second intent which appears to me was that the public servant had also the opportunity of rebutting prima facie evidence by enclosing his documentary evidence or any other evidence which could be lying in his possession or in possession of all other persons who are alleged possessing the properties on behalf of such delinquent public servant. The third purpose is contained in the rule itself. The third purpose is contained in the rule itself. When the same rule 11 by virtue of sub-rule (e) grants an opportunity to the public prosecutor to reply to the statement in defence filed by the delinquent public servant, The purpose was, firstly, to abdicate the full-dressed hearing on the petition as we may imagine in a trial-like- situation and to allow the placing of all the relevant documents and evidence along with explaining statements from both the sides so that the Authorized Officer did not have any difficulty in reading probabilities arising out of the assertions and counter assertions and thereby in recording his findings clearly. This appears more the intent of the legislature when one considers that the very Act has created two fora; one for the trial of the offence which had to be done as per the provisions of Chapter 2 of the Act. The other forum is for carrying out the adjudication of proceedings arising out of the petition filed under Section 13 of the Act which has to be summary and in which rules of evidence have never to be applied. Nonetheless it could not be said that the adjudication of the petition under Section 13 of the Act has to be done as per the whim of the Presiding Officer. It can never be so else it could be violative completely of the principles of natural justice. It has to be as per the provisions of Section 15 of the Act and Rule 11 of the rules on the balance of probabilities. 18. But then the question is in case the delinquent public servant or the persons who have been issued notice under Section 14 of the Act do not choose to place evidence by enclosing the same with their statements of defence then where from the Court or the Authorized Officer could be reading those evidence. The present appears a case of that class where the appellants were making statements placing explanation in their own ways on acquisition of different properties which were found in their possession as per description in Schedules A and B of the petition But they did not enclose any document with their written statements of defence which were filed before the Court below. Even their statements appear quite contrary to each other. Even their statements appear quite contrary to each other. Appellant Girish Kumar was stating that the retiral benefits accruing on account of the demise of his father were improperly partitioned in two halves, one to himself and other to his mother, In fact it accrued to him alone in its entirety, But his wife appellant Saphalta Devi while explaining immovable properties of Sheopuri and Kadamkuan, was stating that the Stridhan properties of her mother-in-law were also coming handy in acquisition of the properties, In addition to that the appellants were speaking of their irrigated agricultural land. They did not state as to what was the area of the land which was in their possession and they did never furnish as to what was the, annual income by way of net savings due to the produce of those lands. All acquisitions, may be of the pistol and cartridge the tractor and trailer the plots of land and houses in Kadamkuan or even the Maruti zen car, appears being financed either fully or in part by the agricultural income of the joint family without even stating in a consolidated manner as to what was the total income of the family from agricultural lands from the year 1992 to 2004. The Court would have been happy had it received any reasonable explanation by way of furnishing accounts of receipts from agricultural land, year-wise or otherwise, by the appellants. Thus, what appears is that the whole statement of defence of the appellants was based on bare statements which were too general and specific on any part and without any support from any acceptable evidence or material. There was no prima facie evidence produced by the appellants in support of their statements of defence though the appellants appearar not controverting that they had the properties in their possession. This may appear from different paragraphs of the statements made either by the appellant Girish Kumar or appellant Saphalha Devi. 19. In my considered view the learned Authorized Officer was perfectly justified in holding that the properties were acquired by commission of the offence under Section 2(d) of the Act. 20. So far as acquisition of motorcycle is concerned. it was stated that the vehicle was owned by one Akhilesh Kumar. 19. In my considered view the learned Authorized Officer was perfectly justified in holding that the properties were acquired by commission of the offence under Section 2(d) of the Act. 20. So far as acquisition of motorcycle is concerned. it was stated that the vehicle was owned by one Akhilesh Kumar. It appears from the impugned order that Akhilesh Kumar was also issued a notice under Section 14 of the Act but, he did not choose to appear. Again there was no documentary evidence produced before me showing the source of finance to purchase the motorcycle least to say that it really belonged to Akhilesh Kumar. It may be true that Maruti zen car had been purchased by taking out a loan but that may not shut the matter out of the Court unless the delinquent public servant. i.e. Girish Kumar was successfully pointing out to the learned Authorized Officer and this Court as to how the loan was repaid. There was no statement as to from which account in which he had kept his validly earned money, the loan amount was repaid. May be, that acquisitions had been financed properly by taking out loans but in that case in my considered view.,the repayment of loan has also to be equally from the valid source income and in all such cases the delinquent public servant owes a burden to justice to explain as to how he had discharged that burden. The appellants have not done it in the present case. 21. The appeal appears de-meritorious and the same is, accordingly, dismissed. Appeal dismissed.