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2012 DIGILAW 12 (ORI)

Snehasini Devi v. State of Orissa

2012-01-05

R.N.BISWAL

body2012
JUDGMENT R.N. BISWAL, J. - The husband of the petitioner namely Bibhuti Bhusan Beura, a Govt. official faced trial for the offence under Section 13(2) read with Section 13(1 )(e) of the P.C. Act on the allegation that during the check period from 1.1.1988 to 29.4.1997 he illegally amassed assets both moveable and immoveable to the -tune of Rs.4,76,965.45 paise, disproportionate to his known sources of income in his name and in the name of petitioner in T.R. No. 11 of 2002 before the learned Special Judge (Vigilance) Bhubaneswar. After conclusion of trial, he was found to have amassed assets to the tune of Rs. 4,69,876.26 paise, disproportinate to his known sources of income illegally, and as such, was convicted for the aforesaid offence and was sentenced to undergo S.I. for two years and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo S.I. for three months more vide judgment and order dated 27.11.2009. Being dissatisfied with the said judgment and order, he preferred Criminal Appeal No.510 of 2009 before this Court, which is sub-judice. 2. In the meantime, Mr. Susanta Kumar Panigrahi, Inspector, Vigilance Division, Bhubaneswar, being duly authorized as per law, filed a petition under Section 3 of the Criminal Law (Amendment) Ordinance, 1944, (herein-in-after referred to as Ordinance, 1944") supported by an affidavit before learned Special Judge (Vigilance) Bhubaneswar, which was registered as Criminal Misc. Case No.2 of 2011 with prayer to attach the properties as mentioned in the Schedule of the petition till disposal of the Criminal Appeal No.510 of 2009 pending before this Court. Pursuant to filing of the said petition, learned Special Judge, (Vigilance), Bhubaneswar issued notice to the petitioner, wife of Bibhuti Bhusan Beura to file show cause to the said petition by 09.9.2011. This writ petition has been filed by the petitioner with prayer to quash the entire proceeding in M.C. No.2 of 2011. 3. Learned counsel for the petitioner submits that learned Special Judge (Vigilance), Bhubaneswar lacks inherent jurisdiction to entertain such an application after conclusion of trial of T.R. Case No.11 of 2002. As per his submission, the District Judge within the local limits of whose jurisdiction an accused under the P.C. Act resides can entertain such a petition against him as envisaged under Sections 3 and 4 of the Ordinance, 1944. As per his submission, the District Judge within the local limits of whose jurisdiction an accused under the P.C. Act resides can entertain such a petition against him as envisaged under Sections 3 and 4 of the Ordinance, 1944. In the present case, since the husband of the petitioner resides ordinarily at Bhubaneswar, the District Judge, Bhubaneswar is competent to act under Sections 3 and 4 of the Ordinance, 1944. Of course, as per the provision contained under Section 5 (6) of the P.C. Act, the Special Judge (Vigilance), while trying an offence punishable under the P.C. Act can exercise the powers and functions exercisable by District Judge under the Ordinance, 1944. In the present case, the trial having been concluded since long, the learned Special Judge (Vigilance) Bhubaneswar became functus officio to deal with the matter. In support of his submission, the learned counsel for the petitioner relies on the decision in the case of Dr. V.K. Rajan v. State of Kerala 2008, Crl. L.J. 909. 4. Per contra, learned Standing Counsel appearing for the State (Vigilance) contends that as per Section 2(2) of the Ordinance, 1944, in the present case, the criminal proceeding shall be terminated on disposal of the Criminal Appeal No.510 of 2009. Since it has not yet been disposed of, the learned Special Judge (Vigilance) is empowered to deal with the petition filed under Section 3 of the Ordinance, 1944. 5. Section 5(6) of the P.C. Act lays down that the Special Judge (Vigilance) while trying an offence punishable under the P.C. Act shall exercise all the powers and functions exercisable by a District Judge under the Ordinance, 1944. Now, it is to be considered whether after delivery of the judgment in T.R. No.11 of 2002, the Special Judge (Vigilance) Bhubaneswar, can entertain the petition filed under Section 3 of the Ordinance, 1944 in view of the provision contained under Section 2(2) of the Ordinance, 1944. Here, it would be profitable to quote Section 2(2) of the said Ordinance. It reads as follows: "2. Here, it would be profitable to quote Section 2(2) of the said Ordinance. It reads as follows: "2. Interpretation-(1) xx xx xx (2) For the purpose of this Ordinance, the date of the termination of criminal proceeding 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 order 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 passes 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 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; (c) where such proceedings are not taken to 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. In view of this provision, it cannot be said that the criminal proceeding has been terminated against the husband of the petitioner, particularly when the appeal is pending. Now, the question is whether the learned Special Judge (Vigilance) can entertain the petition filed under Section 3 of the Ordinance, 1944 by invoking the provision contained under Section 5(6) of the P.C. Act, even though the criminal proceeding against the husband of the petitioner has not yet been terminated. The special Judge (Vigilance) can entertain a petition under Section 3 of the Ordinance, 1944 during trial of a case under P.C. Act by him. Ordinarily, trial begins after taking cognizance or after commitment of the case to the Court of Sessions and ends on passing of the judgment. The special Judge (Vigilance) can entertain a petition under Section 3 of the Ordinance, 1944 during trial of a case under P.C. Act by him. Ordinarily, trial begins after taking cognizance or after commitment of the case to the Court of Sessions and ends on passing of the judgment. Since the Judgment has already been delivered in T.R. Case No.11 of 2002, only because the criminal proceeding has not yet been terminated, in view of the provision contained under Section 2 (2) of the Ordinance, 1944, it cannot be said that the trial also has not yet been completed. After pronouncement of the judgment, learned Special Judge (Vigilance) became functus officio and as such cannot deal with the petition filed under Section 3 of the Ordinance, 1944. This view finds support from the decision in the case of Dr. V.K. Rajan (supra). 6. Learned Standing Counsel appearing for the State (Vigilance) further submits that instead of rushing straight to this Court, when the notice was issued to the petitioner to show cause on the petition filed under Section 3 of the Ordinance, 1944, she ought to have appeared before learned Special Judge (Vigilance) Bhubaneswar and filed show cause raising the jurisdiction point. So the writ petition should be dismissed. In support of his submission, he relies on the decision in the case of Krishna Kumar Variar Vs. Share Shoppe 2010 CRL.L.J. 3849 wherein it has been held: "In our opinion, in such cases where the accused or any other person raises an objection that the Trial Court has no jurisdiction in the matter, the said person should file an application before the Trial Court making this averment and giving the relevant facts. Whether a Court has jurisdiction to try/entertain a case will, at least in part, depend .upon the facts of the case. Hence, instead of rushing to the higher 'Court against the summoning order, the concerned person should approach the Trial Court with a suitable application for this purpose and the Trial Court should after hearing both the sides and recording evidence, if necessary, decide the question of jurisdiction before proceeding further with the case." 7. In the decision quoted above, the ierritorial jurisdiction of the Magistrate in entertaining a complaint under Sections 415/420 of I.P.C. was challenged on receiving summons directly before the High Court. In the decision quoted above, the ierritorial jurisdiction of the Magistrate in entertaining a complaint under Sections 415/420 of I.P.C. was challenged on receiving summons directly before the High Court. In such case, there may be materials in the complaint petition or Case Diary to show that the Court, where the complaint/F.I.R. is filed has jurisdiction to entertain the same besides some other Court. In such a case evidence may also be required. As such, the Supreme Court held as, quoted above. 8. But, in the present case, inherent jurisdiction of the learned Special Judge (Vigilance) to entertain a petition under Section 3 of the Ordinance, 1944 is challenged, where only point of law is involved and no evidence is required. So, the decision as cited is not applicable to the instance case. Accordingly, the WPCRL is allowed and the entire proceeding in Criminal Misc. Case No.2 of 2011 of the Court of learned Special Judge (Vigilance) Bhubaneswar is hereby quashed. WPCRL allowed.