Research › Search › Judgment

Karnataka High Court · body

2011 DIGILAW 668 (KAR)

H. C. Sathyan v. State by Police Inspector

2011-07-05

V.JAGANNATHAN

body2011
Judgment :- 1. Interpretation of sub-section (6) of Section 5 of the Prevention of Corruption Act, 1988 has come up for consideration in this criminal appeal. 2. The facts which have given rise to the aforesaid circumstance are that, a case was registered against the first appellant herein viz., H.C. Sathyan, by the Lokayuktha police, Mysore, for the offences punishable under Sections 13(1)(e) read with 13(2) of the Prevention of Corruption Act and following a raid conducted by the Lokayuktha police on 27.3.2008, certain records pertaining to immovable assets and movable assets like gold and silver and other household items were noticed by the Lokayuktha police and steps were taken to attach the said properties. 3. An application was filed by the Lokayuktha police for attachment of 19 items of the property possessed by the first appellant-accused and his wife and an interim order was passed by the learned Sessions Judge on 16.10.2008 and subsequently, the Special Public Prosecutor for the Lokayuktha filed an application under Sections 3 and 4 of the Criminal Law (Amendment) Ordinance, 1944 (‘the Ordinance’ for short) and as could be seen from the impugned order, an application was also filed by the second appellant for return of the properties. The learned Sessions Judge, after hearing both sides, passed the impugned order allowing the application filed by the Special Public Prosecutor and confirmed the interim order passed on 16.10.2008. 4. Learned counsel Shri S.G. Bhagavan for the appellants contended that the respondent-Lokayuktha could not have filed an application before the trial court for attachment of the properties because, the trial court gets jurisdiction to exercise the powers of a District Judge under the Ordinance only by virtue of the provisions contained in sub-section (6) of Section 5 of the P.C. Act. The said provision, if carefully read, would make it clear that the Special Judge gets jurisdiction only while trying an offence under the P.C. Act and not under other circumstances and muchless before the trial commences. Therefore, a combined reading of sub-section (6) of Section 5 of the P.C. Act and the provisions contained in the Ordinance with regard to attachment of property would go to show that the Special Judge gets the powers of a District Judge only while trying an offence and not during the stage of investigation. Therefore, a combined reading of sub-section (6) of Section 5 of the P.C. Act and the provisions contained in the Ordinance with regard to attachment of property would go to show that the Special Judge gets the powers of a District Judge only while trying an offence and not during the stage of investigation. For the aforesaid proposition, the learned counsel for the appellants relied on a Division Bench ruling of the Kerala High Court in the case of Dr. V.K. Rajan Vs. State of Kerala, reported in 2008 Crl.L.J. 909. Therefore, the impugned order passed by the trial court be set aside by allowing this appeal is the prayer. 5. On the other hand, counsel Shri Rajendra Reddy for the respondent-Lokayuktha contended that a Special Judge trying an offence under the P.C. Act is also empowered with the powers and functions of a District Judge and consequently, the order passed in the instant case does not suffer from any infirmity and apart from that, the word “trying” should be read along with the expression “tried” used in Section 4 of the P.C. Act and Section 26 of the Cr.P.C. Read in the said light, the Special Judge has, therefore, every power to attach the property of the accused. Apart from that, even the powers conferred by Sections 451 and 452 of the Cr.P.C. also can be exercised by the Special Judge and, as such, the question of the Special Judge not having the power to attach the property during the pendency of a criminal case does not arise. To support the aforesaid submission, reliance is placed by the learned counsel on a decision of the High Court of Madhya Pradesh in the case of Hemant Soni Vs. State of M.P. reported in 2000-TLMPH-0-362. 6. Having thus heard both sides, the focus will have to be now turned to the provisions contained in sub-section (6) of Section 5 of the P.C. Act and the court will have to consider as to what the expression “while trying an offence” means. 7. State of M.P. reported in 2000-TLMPH-0-362. 6. Having thus heard both sides, the focus will have to be now turned to the provisions contained in sub-section (6) of Section 5 of the P.C. Act and the court will have to consider as to what the expression “while trying an offence” means. 7. Sub-section (6) of Section 5 of the P.C. Act is as under: “(6) A special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ordinance 38 of 1944).” A close reading of the said provision reveals the following aspects: i) A Special Judge while trying an offence under the P.C. Act has got the powers and functions of a District Judge. ii) The said powers and functions of a District Judge are to be understood in the context of the provisions contained in the Ordinance of 1944. 8. So far as the second part of sub-section (6) of Section 5 is concerned, there is no dispute because, the ordinance of 1944 confers certain powers upon the District Judge and the said powers also include the power of passing an interim order of attachment. But, the crucial question to be answered is as to when the said power will have to be exercised by the Special Judge under the P.C. Act. 9. The first part of Section 5(6) of the P.C. Act gives an indication as to when a Special Judge can exercise the power of a District Judge and it is “while trying an offence”. Therefore, a plain meaning of the aforesaid expression would convey the impression that the power of a District Judge can be exercised by the Special Judge only while trying an offence under the P.C. Act. Thus, the said subsection (6) of Section 5 does not permit any other interpretation of the expression “while trying an offence”. 10. The aforesaid conclusion is further strengthened by a perusal of the provisions contained in the Ordinance of 1944. Sub-section (1) of Section 3 of the Ordinance, 1944 reads as under: “3. Thus, the said subsection (6) of Section 5 does not permit any other interpretation of the expression “while trying an offence”. 10. The aforesaid conclusion is further strengthened by a perusal of the provisions contained in the Ordinance of 1944. Sub-section (1) of Section 3 of the Ordinance, 1944 reads as under: “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 cognizance 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 the 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.” Sub-section (1) of Section 4 of the Ordinance, 1944 is as follows: “4. Ad interim attachment:- (1) Upon receipt of an application under Section 3, the District Judge shall, unless for reasons to be recorded in writing he is of the opinion that there exist no prima facie grounds for believed that the person in respect of whom the application is made has committed any scheduled offence or that he has procured thereby any money or other property, pass without delay an ad interim order attaching the money or other property allege to have been so procured, or if it transpires that such money or other property is not available for attachment, such other property of the said person or equivalent value as the District Judge may think fit:” 11. Therefore, it is clear from a combined reading of Sections 3 and 4 of the Ordinance, 1944 that the application can be filed before a District Judge, whether or not any court has taken cognizance of the offence and the offences would also include an offence punishable under the P.C. Act, which is clear from the schedule to Section 2 of the Ordinance. 12. The effect of sub-section (6) of Section 5 of the P.C. Act and Sections 3 and 4 of the Ordinance, 1944 is that, an application for attachment of property in respect of an offence punishable under the P.C. Act can be made by the State Government or the Central Government before the District Judge, whether or not any court has taken cognizance of the offence. In other words, the application can be filed for attachment of a property even before a case is taken up for trial by the Special Judge under the P.C. Act. The second conclusion to be drawn from a combined reading of the aforesaid provision is that, in order to exercise the power conferred on a District Judge by the Ordinance of 1944, the Special Judge, under the P.C. Act, can do so only when he is trying an offence under the P.C. Act. 13. Even looked from another angle, the contentions put forward by learned counsel Rajendra Reddy for the respondent-Lokayuktha cannot be accepted because, if the Special Judge were to be clothed with the powers of a District Judge with regard to passing an order of attachment even before trying an offence, then, such situation would militate against the provisions contained in Sections 3 and 4 of the Ordinance, 1944. If a Special Judge under the P.C. Act is also authorised to pass an order of attachment during the stage of investigation, it would mean that the District Judge, who is empowered under the Ordinance, 1944 as well as the Special Judge under the P.C. Act both will have the jurisdiction to pass an order on an application for attachment of property. Such a situations not contemplated on a careful reading of Sections 3 and 4 of the Ordinance, 1944 and sub-section (6) of Section 5 of the P.C. Act. Such a situations not contemplated on a careful reading of Sections 3 and 4 of the Ordinance, 1944 and sub-section (6) of Section 5 of the P.C. Act. Therefore, provisions contained in sub-section (6) of Section of the P.C. Act cannot be read as to take the view that in respect of an application for attachment of a property, the District Judge and the Special Judge both will have the power to act simultaneously. 14. The aforesaid reasoning is also supported by the Division Bench decision referred to by learned counsel Shri S.G. Bhagavan for the appellants. In the case of Dr.V.K. Rajan Vs. State of kerala, supra, a Division Bench of the Kerala High Court has held that the power of attachment under the Ordinance is given to the Special Judge under Section 5(6) of the P.C. Act only “while trying the case” and not during pre-trial stage or investigation stage or after attachment. In the course of the said decision, the Division Bench also observed by relying on the Apex Court decision reported in AIR 1992 SC 1981 that, when the words of the statute are clear, plain and unambiguous and capable of one meaning only, the courts are bound to give effect to that meaning irrespective of the consequences. 15. As far as the decision referred to by the learned counsel for the respondent-Lokayuktha is concerned, in the said decision, the court was not required to interpret the expression “while trying an offence” contained in Section 5(6) of the P.C. Act but, on the other hand, the court was considering an application filed under Section 451 of the Cr.P.C. for custody of the property seized by the police. Therefore, the said decision has no application to the case on hand. 16. For the aforesaid reasons, the order passed by the court below confirming the order of attachment by allowing the application filed by the Special Public Prosecutor under Sections 4 and 5 of the Ordinance, 1944 cannot be sustained in law and hence, the following order is passed: The appeal is allowed and the impugned order is set aside. The aforesaid order will not come in the way of the respondent-Lokayuktha in making an application for interim custody of the property before the appropriate forum in accordance with law.