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2011 DIGILAW 547 (ORI)

Gangadhar Sahoo v. State of Orissa

2011-11-04

R.N.BISWAL

body2011
JUDGMENT R.N. BISWAL, J 1. This appeal is preferred against the order dated 18.06.2011 passed by the learned Authorized Officer, Special Court, Bhubaneswar in Confiscation Case No.3 of 2011 arising out of Cuttack Vigilance P.S. Case No.10 of 1994 rejecting the prayer of the appellant to drop the Confiscation proceeding. 2. The fact as borne out from the appeal memo and the submission made by learned counsel for the appellant, necessary for disposal of the appeal are that on the acquisition of possession of disproportionate properties to his known sources of income of the tune of Rs.5,02,550.86 raise during the period 5.8.1971 to 15.3.1984 by resorting to corrupt means, Cuttack Vigilance P.S. Case No.10 of 1994 was registered against the appellant. After completion of investigation, charge sheet was submitted against him for the offence under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (in short 'P.C Act') before the Special Judge (Vigilance) Bhubaneswar. In exercise of power conferred under Section 5 of the Orissa Special Courts Act, 2006 (hereinafter referred as "Act, 2006"), the State Govt. in their Home Department made a declaration on 11.7.2008 published in Extra Ordinary Gazette on 15.7.2008 that while that while holding high public office in the State of Orissa, i.e., Executive Engineer, CADA, Bhubaneswar, the appellant committed an offence under Section 5(i) (e) of Prevention of Corruption Act, 1947 and on scrutiny of relevant materials available on record, prima facie, it was found that he accumulated properties disproportionate to his known sources of income by resorting to corrupt means and that the offence would be dealt with under the Act, 2006. Pursuant to such notification, the case of the appellant was transferred from the Special Court (Vigilance) Bhubaneswar to the Special Court, Bhubaneswar which was registered as T.R. Case No.13 of .2008. Then the Investigating Officer submitted an application under Section 13(1) of the Act, 2006 before the Authorized officer, Special Courts, Bhubaneswar for confiscation of the assets and properties of the appellant, his wife sons, daughter and sister and accordingly Confiscation case No.3 of 2011 was registered, wherein the appellant was summoned to appear and filed his show cause. 3. Then the Investigating Officer submitted an application under Section 13(1) of the Act, 2006 before the Authorized officer, Special Courts, Bhubaneswar for confiscation of the assets and properties of the appellant, his wife sons, daughter and sister and accordingly Confiscation case No.3 of 2011 was registered, wherein the appellant was summoned to appear and filed his show cause. 3. Pursuant to the show cause notice, the appellant filed a petition to drop the confiscation proceeding as being not maintainable, since he did not hold high public office in most of the time during the check period; that the aforesaid notification did not indicate grounds on which it was believed by the Govt. that he committed the offence under the Act and that as per the provision of Section 4 of the Act, 2006 the accusation made against the appellant was not covered under the provision of the said Act. After hearing learned counsel for the parties, learned Authorized Officer vide order dated 18.6.2011 rejected the aforesaid application holding that as per Section 5 (i) of the Act, 2006, the day on which the Govt. formed the opinion about the availability of prima facie evidence of commission, if the person concerned had held a high public office he should be tried by the Special Court and that the appellant was working as Executive Engineer, CADA, Division No.1 Bhubaneswar, which is a high public office on the date of availability of prima facie evidence of commission of the offence. This order is under challenge in this CRLA. 4. Learned counsel appearing for the appellant submits that the appellant was working as Executive Engineer, CADA, Division No.1 Bhubaneswar from 3.7.1980 to 1.7.1993 and thereafter he was put under suspension till end of the check period. Prior to 3.7.1980 he did not hold any high public office. Thus the declaration made by the Govt. under Section 5 (1) of the Act, 2006 being illegal, the proceeding before learned Authorized Officer is not maintainable under law. He further submits that Section 4 of the Act, 2006 provides that the Special Court shall take cognizance and try such cases as are instituted before it or transferred to it under Section 10 of the said Act. In other words, the State Govt. can only issue a declaration in those cases as would be covered under Section 4 of the Act. In other words, the State Govt. can only issue a declaration in those cases as would be covered under Section 4 of the Act. But the case which had already been instituted in the Court of Special Judge (Vigilance) Bhubaneswar under the provision of the P.C. Act, 1988, the issuance of the declaration made under Section 5(1) of the Act, 2006 is not maintainable. Learned counsel for the appellant further submits that criminal law is never retrospective and that in the present case the alleged offence having been committed prior to coming into force of the Act, 2006, the case of the appellant cannot be covered under the provisions of the said Act. At last learned counsel for the appellant submits that the property in question being under the custody of the trial Court, initiation of the confiscation proceeding before the authorized officer is not permissible, particularly when the trial of the case is sub-judice. 5. On the other hand, learned Standing Counsel Vigilance contends that on the date of detection of the offence, the appellant was holding the post of Executive Engineer, CADA, Bhubaneswar under Group 'A' service. Section 13 of the Act, 2006 envisages that if on the date of finding prima facie evidence for commission of an offence by any person, the said person holds or had held high public office he shall be prosecuted under the Act, 2006 and it is immaterial whether he was holding such high post during the check period. As per Section 6(2) of the Act, 2006 a case can be transferred from the Court of Special Judge (Vigilance) to the Court of Special Court, Bhubaneswar. In view of the specific provision under the Act, 2006 the case of the appellant can be covered under the Act, 2006. So, learned Standing Counsel prays to dismiss the appeal. 6. Section 13 (2) of the Act, 2006 envisages that if the Govt. on the basis of prima facie evidence believe that any person who held high public office committed offence under Section 13 (1) (e) read with Section 13 (2) of the P.C. Act, a proceeding for confiscation of his disproportionate assets can be launched against him even before taking cognizance of the offence. on the basis of prima facie evidence believe that any person who held high public office committed offence under Section 13 (1) (e) read with Section 13 (2) of the P.C. Act, a proceeding for confiscation of his disproportionate assets can be launched against him even before taking cognizance of the offence. In the present case, when charge sheet has already been filed against the appellant for the offence under Section 13 (1) (e) read with Section 13 (2) of the P.C. Act showing that there is prima facie case against him the confiscation proceeding cannot be said to be bad in law on the ground that the notification issued under Section 5 (1) of the Act, 2006 is illegal. 7. Section 6(2) of the Act, 2006 reads as follows: "6. Effect of declaration - (1) xxx xxx xxx (2) Where any declaration made under Section 5 relates to an offence in respect of which a prosecution has already been instituted and the proceedings in relation thereto are pending in a Court other than a Special Court, such proceedings shall, notwithstanding anything contained in any other law for the time being in force, stand transferred to Special Court for trial of the offence in accordance with this act." Thus, this shows that a case under Section 13 (1) (e) read with Section 13 (2) of the P.C. Act pending in any Court other than the special Court, can be transferred to the special Court despite anything contained in any other law. In view of Section 6(2) of the Act 2006, the appellant can be tried under the Act, 2006 and the provisions of the said Act would be applicable to him. The validity of the Act 2006 was challenged before this Court in W.P.(Crl) No.300/09 which was dismissed on 16.09.2010. So, the argument advanced by the learned counsel for the appellant that since the property in question is custodian legis of the learned trial Court, the initiation of confiscation proceeding cannot be permissible, particularly when the trial of the case is sub-judiced cannot be tenable. However, the plea that the Criminal law is never retrospective and that the Notification under Section 5(1) of the Act, 2006 made against the appellant was illegal, may be raised by the appellant, if so advised, in appropriate forum at appropriate stage. However, the plea that the Criminal law is never retrospective and that the Notification under Section 5(1) of the Act, 2006 made against the appellant was illegal, may be raised by the appellant, if so advised, in appropriate forum at appropriate stage. With the aforesaid observation, the appeal stands dismissed and the order of the-learned trial Court is hereby confirmed. Appeal dismissed.