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2012 DIGILAW 126 (ORI)

Ranjan Kumar Kar v. State of Orissa

2012-03-07

R.N.BISWAL

body2012
JUDGMENT R.N. BISWAL, J. - This appeal is directed against the order dated 9.5.2011 passed by learned Authorized Officer, Bhubaneswar in Confiscation Case. No.1 of 2011 rejecting the application filed by 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 given rise to filing of the appeal in short is that while the appellant was working as Executive Engineer (R&B) Division, Angul, his house was searched on 12.7.2001 by the Vigilance Personnel in his presence. On 10.9.2001 F.I.R. was lodged against him and as the allegations contained therein revealed a cognizable case Bhubaneswar Vigilante P.S. case No.31 of 2001 was registered under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act (hereinafter referred as 'P.C. Act') and the case was investigated into on due authorization. On completion of investigation it was allegedly found that during the period 1.1.1987 to 12.7.2001 the appellant acquired assets beyond his known sources of income to the tune of Rs.45,64,244/-, which he could not satisfactorily account for., so charge sheet was submitted against him on the allegation that he committed offence under Section 13(2) read with Section 13(1)(e) of the P.C. Act. Ultimately, the case was registered as TR. No.152 of 2006 of the Court of Special Judge (Vigilance) Bhubaneswar and he faced trial before it. After coming into force of the Orissa Special Courts Act, 2006 (hereinafter referred as Act 2006), the Government in the Home Department in exercise of power under Section 5 of the Act, 2006 made a declaration vide Notification dated 31.5.2008 published in the Extra Ordinary Gazette to the effect that the State Government was of opinion that there was prima facie case of commission of offence under Section 13(1)(e) of the P.C. Act by the appellant since he accumulated properties disproportionate to his known sources of income by resorting to corrupt means and further declared that the said offence would be dealt with under the Act, 2006. Accordingly, TR. Case No.152 of 2006 was transferred to the Special Court, Bhubaneswar and it was renumbered as T.R. Case No.2 of 2008. Thereafter, the Investigating Officer submitted an application under Section 13(1) of the Act, 2006 to the Authorized Officer, Bhubaneswar for confiscation of the assets and properties of the appellant. Accordingly, TR. Case No.152 of 2006 was transferred to the Special Court, Bhubaneswar and it was renumbered as T.R. Case No.2 of 2008. Thereafter, the Investigating Officer submitted an application under Section 13(1) of the Act, 2006 to the Authorized Officer, Bhubaneswar for confiscation of the assets and properties of the appellant. On the basis of the aforesaid application, Confiscation Case No.1 of 2011 was registered against the appellant and his wife. Both the appellant and his wife were summoned to appear before the Authorized Officer and to show cause. As it appears, after entering their appearance in the aforesaid confiscation case on 9.5.2011, the Advocate for the appellants filed a petition before the Authorized Officer to drop the confiscation proceeding on the ground that the appellant did not hold high public office during most of the check period and that as per the provision under Section 4 of the Act, 2006, the case relating to the appellant was not covered under the said Act. After hearing learned counsel for the appellants the learned Authorized Officer vide order dated 9.5.2011 rejected the petition on the ground that earlier two similar petitions filed by the appellant and his wife had been rejected. Being aggrieved with the said order dated 9.5.2011, the appellant has filed the present appeal as stated earlier. 3. Learned counsel for the appellant submits that during the check period, except the period from 31.1.2000 till the date of search, the appellant was working as an Asst. Engineer in different stations. He worked as an Executive Engineer from 31.1.2000 till the date of search i.e. 12.7.2001. So during most of the check period the appellant was not holding high public office as per the meaning of the said term as defined under the Orissa Special Courts Rules. Thus, the declaration made under Section 5(1) of the Act relating to the appellant being illegal, the confiscation proceeding is not maintainable. Learned counsel for the appellant further submits that as per Section 4 of the Act, 2006, the Special Court shall take cognizance and try such cases as are instituted before it or transferred to it under Section 10 of the Act. Therefore, the State Government can only issue a declaration in those cases as would be covered under Section 4 of the Act. Therefore, the State Government can only issue a declaration in those cases as would be covered under Section 4 of the Act. In other words, in a case which had already been instituted in the Court of Special Judge (Vigilance) under the provision of the P.C. Act, issuance of declaration under Section 5(1) of the Act, 2006 is not maintainable. Section 6(2) of the said Act can only cover the cases pending in the Court of C.J.M.(Vigilance) which is clear on a combined reading of Sections 4, 6(2), 10 and 12 of the Act, 2006. 4. Learned counsel for the appellant further submits that the aforesaid confiscation proceeding is against all canons of fair trial as enshrined under Article 21 of the Constitution of India. The provision contains in Chapter-III of the Act, 2006 not only mocks at fair trial, but also knocks down fairness. Mockery is writ large as the burden of proving that any property specified in the notice served under Section 14 is not acquired by means of the offence shall be on the person affected. 5. On the other hand, learned Standing Counsel Vigilance contends that on the date of detection of the offence, the appellant was Executive Engineer, (R & B) Division, Angul which comes under Group-'A' service. Section 13 of the Act, 2006 implies than if on the date of finding prima facie evidence for commission of an offence by any person, who 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 entire check period. As per Section 6(2) of the Act, 2006 a case can be transferred frorT1 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. At the time of detection of the offence, the appellant was Executive Engineer, (R & B) Division and as such was holding high public office. It is immaterial, whether he held such post in the entire check period. Admittedly 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 a prima facie case against him; so 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. Section 6(2) of the Act, 2006 reads as follows: "6. Effect of declaration- (1) xxx xxx xxx 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 after the declaration made under Section 5 of the Act, 2006 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. 7. The validity of the Act 2006 was challenged before this Court in WPCRL No.300 of 2009 which was dismissed on 16.9.2010. So, the submission of learned counsel for the appellant that the confiscation proceeding under Chapter-III of the Act, 2006 is against all canons of fair trial as enshrined under Article 21 of the Constitution of India cannot be accepted. Under such circumstances, the appeal stands dismissed. Appeal dismissed.