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2011 DIGILAW 548 (ORI)

Gopinath Biswal 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 10.05.2011 passed by the learned Authorized Officer Special Court, Bhubaneswar in Confiscation case No.3 of 2009 arising out of Cuttack Vigilance P.S. Case No.11 of 1994 rejecting the prayer of the appellant to drop the proceeding. 2. The fact giving rise to filing of the CRLA in short is that while the appellant was working as Joint Director, Soil Conservation, Orissa, Bhubaneswar, his house was searched by the Vigilance Department on 25.03.1994 and an F.I.R. was lodged on 30.3.1994 alleging that he possessed disproportionate assets beyond his known sources of income. After completion of investigation prima facie it was found that during the period from 1.1.1982 to 31.12.1986, he acquired assets beyond his known sources of income to the tune of Rs.3,20,365.75 paise and accordingly charge sheet was submitted against him under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (in short P.C. Act) before the Court of Special Judge (Vigilance) Bhubaneswar and accordingly T.R. case No.13 of 1998 was registered. On 31.8.2008, after passing of the Orissa Special Courts Act, 2006 (hereinafter referred as Act 2006) a Notification was made by the State Government under Section 5(1) of the said Act that the appellant, while holding High Public Office (Joint Director Soil Conservation, Orissa, Bhubaneswar) Committed offence under Section 13(1) (e) read with Section 13(2) of the P.C. Act and as such, he should be tried by the Special Court, established under Sub-section (1) of Section 3 of the Act, 2006. Thereafter, the case was transferred to the Special Court, Bhubaneswar and accordingly, it was registered as T.R. case No.8 of 2008. After conclusion of trial, the appellant was convicted by the Special Court, Bhubaneswar under Section 13(2) read with Section 13 (1) (e) of the P.C. Act vide judgment and order dated 08.03.2011. Challenging the said order of conviction, the appellant preferred Criminal Appeal No.201 of 2011 before this Court which is sub-judice. 3. Appellant challenged the legality and validity of the Notification dated 31st May, 2006 issued by the State Govt. before this Court in WPCRL No.339 of 2011 on the ground that he was not holding high public office during the entire check period. 3. Appellant challenged the legality and validity of the Notification dated 31st May, 2006 issued by the State Govt. before this Court in WPCRL No.339 of 2011 on the ground that he was not holding high public office during the entire check period. While disposing of the said writ petition, this Court held that the petitioner was at liberty to urge the said ground relating to legality and validity of the aforesaid Notification in the confiscation proceeding. Accordingly, he filed a petition on 6.5.2011 before the Authorized officer, Special Court, Bhubaneswar challenging the legality and validity of the said Notification, on the aforesaid ground. After hearing learned counsel for both sides, learned Authorized Officer, Special Court, Bhubaneswar held that a plain reading of Section 13 of the Act, 2006 would lead to a conclusion that the person, against whom the Govt. sought to make a Notification, must be holding high public office on the date he was prima facie found to have committed the offence. It is, therefore, immaterial whether he was holding high public office during the entire check period. Since the appellant was holding high public office on the date of issuance of the Notification, the Authorized Officer, Special Court, Bhubaneswar rejected the petition vide order dated 10.05.2011, which is under challenge in this appeal. 4. Learned counsel for the appellant in course of his argument drew attention of this Court to the Preamble of the Act, 2006, which reads as follows: "AN ACT TO PROVIDE FOR THE CONSTITUTION OF SPECIAL COURTS FOR THE SPEEDY TRIAL OF CERTAIN CLASS OF OFFENCES AND FOR CONFISCATION OF THE PROPERTIES INVOLVED" WHEREAS corruption is perceived to be amongst the persons holding high political and public offices in the State of Orissa; AND WHEREAS investigations conducted by the agencies of the Government disclose prima facie evidence, confirming existence of such corruptions; AND WHEREAS the Government have reasons to believe that large number of persons, who had held or are holding high political and public offices have accumulated vast property, disproportionate to their known sources of income by resorting to corrupt means; AND WHEREAS it is constitutional legal and moral obligation of the State to prosecute persons involved in such corrupt practices; 5. According to learned counsel for the appellant, the preamble shows that the Act 2006 has been enacted for trial of certain offences committed by persons while holding high political and public offices. In the case at hand, during the check period, appellant was not holding any high public office as evident from the deposition of the I.O. as well as the counter affidavit filed by the State before the Special Court. Learned counsel for the appellant further submits that as per the allegation, the appellant accumulated disproportionate assets beyond his known sources of income during the period from 1.11.1982 to 31.12.1986. The P.C. Act, 1988 came into operation from 9.9.1988. Since the offence is alleged to have been committed prior to enforcement of the said Act, the appellant cannot be made an accused under Section 13 (1) (e) read with Section 13(2) of the P.C. Act; he can at best be tried for the offence under Section 5(1) (e) read with Section 5(2) of the P.C. Act, 1947. Moreover, the offence under the old Act, 1947 not being the schedule offence under the Act, 2006 the present prosecution launched against the appellant was illegal. 6. 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 Joint Director Soil Conservation under Group-'A' service which is a high public office as defined under Rule (1) (e) of the Orissa Special Courts Rules, 2007. Section 13 of the Act, 2006 envisages that if on the date of finding prima facie evidence of commission of the offence against any person, the said person holds or had held high public office he shall be prosecuted under the said Act and it is immaterial whether he was holding such high post during the check period. He further submits that the offence under Section 5(1) (e) read with Section 5 (2) of the Old Act, 1947 being similar to the provisions under Section 13 (1)(e) read with Section 13(2) of the P.C. Act 1988 no prejudice is caused to the appellant on being tried under section 13(1)(e) read with Section 13(2) of the New Act. Therefore, the argument advanced by learned counsel for the appellant is not tenable under law. 7. Therefore, the argument advanced by learned counsel for the appellant is not tenable under law. 7. Admittedly, the appellant having been convicted by the Special Judge, Bhubaneswar for the offence under Section 13(1)(e) read with Section 13(2) of the P.C. Act, 1988 in T.R. Case No.2 of 2008 has preferred an appeal against the same before this Court which is sub-judice. Section 13 of Act 2006 envisages that if the Government, 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, proceeding for confiscation of the disproportionate assets can be launched against him even before taking cognizance of the offence. In the present case, when the appellant having been found guilty for the offence under Section 13(1)(e) read with Section 13(2) of the P.C. Act has already been convicted, at this stage 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. Since the so-called illegality of the Notification and maintainability of the case touch the very root of the case, the appellant, if so advised, may raise the points raised here, before this Court in the appeal. With the aforesaid observation, the appeal stands dismissed and the order of the learned Authorized Officer, Special Court, Bhubaneswar is hereby confirmed. Appeal dismissed.