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2013 DIGILAW 1172 (PAT)

Ram Chandra Mandal v. State of Bihar

2013-09-24

AKHILESH CHANDRA

body2013
AKHILESH CHANDRA, J.:–The petitioners above-named have preferred this writ application under Article 226 and 227 of the Constitution of India, Initially anticipating no chance of hearing of an appeal pending before learned Sessions Judge, Munger, bearing Criminal Appeal No. 130 of 2012 under Section 25(B) of the provisions of Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as “Act”), seeking release of property seized by order dated 17.10.2012 passed in Case No. 5/2012 by the Principal Secretary-cum-Designated Authority, Bihar, Patna, who confirmed the seizure of the property by the Investigating Officer, in connection with Naya Ramnagar P.S. Case No. 93 of 2012 registered for the offences under Sections 124A/414 of the Indian Penal Code, 25(1AA) /(1-AAA)/26(2)/35 of The Arms Act read with sections 16(B), 18/120/23/28/39 of the said Act. 2. Meanwhile, the said appeal has been dismissed by the court below on 10th January 2013, mainly on the ground of lack of jurisdiction, consequently by filing Interlocutory Application No. 90 of 2013, amendment was sought in prayer portion and appropriate relief seeking setting aside seizure contained in Memo No. 419 dated 27.08.2012 and its confirmation vide order dated 1.10.2012 in Case No. 5 of 2012 has also order dated 10th January 2013 passed by Sessions Judge, Munger, in Criminal Appeal No. 130 of 2012. On behalf of the respondents counter affidavit has also been filed. 3. Under the changed circumstances, submission of the Bar was confined mainly on the point of jurisdiction to entertain the appeal under section 25(B) of the Act and maintainability of this writ application. 4. It is pointed out that the Lower Appellate Court while considering the provisions as contained under sections 25(6), 28, 31 and 47 of the Act arrived at the conclusion that he has no jurisdiction to entertain the appeal, consequently dismissed the same at the admission stage itself. 5. In the instant case, undisputedly properties of the petitioners have been seized by the Investigating Officer at the initial stage who well within the prescribed period got confirmation of such seizure for further needful by the Designated Authority as prescribed under section 25 of the Act which reads as such:– 25. 5. In the instant case, undisputedly properties of the petitioners have been seized by the Investigating Officer at the initial stage who well within the prescribed period got confirmation of such seizure for further needful by the Designated Authority as prescribed under section 25 of the Act which reads as such:– 25. Power of investigating officer and Designated Authority and appeal against order of Designated Authority.–(1) If an officer investigating an offence committed under Chapter IV or Chapter VI, has reason to believe that any property in relation to which an investigation is being conducted, represents proceeds of terrorism, he shall, with the prior approval in writing of the Director General of the Police of the State in which such property is situated, make an order seizing such property and where it is not practicable to seize such property, make or order of attachment directing that such property shall not be transferred to otherwise dealt with except with the prior permission of the officer making such order, or of the Designated Authority before whom the property seized or attached is produced and a copy of such order shall be served on the person concerned. (2) The investigating officer shall duly inform the Designated Authority within forty-eight hours of the seizure or attachment of such property. (3) The Designated Authority before whom the seized or attached property is produced shall either confirm or revoke the order of seizure or attachment so issued within a period of sixty days from the date of such production: Provided that an opportunity of making a representation by the person whose property is being seized or attached shall be given. (4) In the case of immovable property attached by the investigating officer, it shall be deemed to have been produced before the Designated Authority, when the investigating officer notifies his report and places it at the disposal of the Designated Authority. (4) In the case of immovable property attached by the investigating officer, it shall be deemed to have been produced before the Designated Authority, when the investigating officer notifies his report and places it at the disposal of the Designated Authority. (5) The investigating officer may seize and detain any cash to which this Chapter applies if he reasonable grounds for suspecting that – (a) it is intended to be used for the purposes of terrorism; or (b) if forms the whole or part of the resources of a terrorist organization: Provided that the cash seized under this sub-section by the investigating officer shall be released within a period of forty-eight hours beginning with the time when it is seized unless the matter involving the cash is before the Designated Authority and such Authority passes an order allowing its retention beyond forty-eight hours. Explanation.–For the purposes of this sub-section, “cash” means – (a) coins or notes in any currency; (b) Postal orders; (c) traveller’s cheques; [(ca) credit or debit cards or cards that serve a similar purpose;] (d) banker’s draft; and (e) such other monetary instruments as the Central Government or, as the case may be, the State Government may specify by an order made in writing. (6) Any person aggrieved by an order made by the Designated Authority may prefer an appeal to the Court within a period of thirty days from the date of receipt of the order, and the Court may either confirm the order of attachment of property or seizure so made or revoke such order and release the property.” 6. And any person, if aggrieved by such seizure of properties and its confirmation for further needful, has a right to appeal within stipulated period under section 25(6) of the Act as stated above before the Court who is competent to try. And in fact, in view of the discussions made above, it is the stage from where judicial intervention on the point is prescribed, with only limitation, for the aggrieved is to prefer the appeal, within 30 days from the date of receipt of the order of Designated Authority. 7. It is relevant to state that section 2 of the Act for the purposes which reads as such:– 2. 7. It is relevant to state that section 2 of the Act for the purposes which reads as such:– 2. Definitions.–(1) In this Act, unless the context otherwise requires – (a) …………… (b) …………… (c) “Code” means the Code of Criminal Procedure, 1973 (2 of 1974); (d) “Court” means a Criminal Court having jurisdiction, under the Code, to try offences under this Act [includes a Special Court constituted under section 11 or under section 21 of the National Investigation Agency Act, 2008]; (e) “Designated Authority” means such officer of the Central Government not below the rank of Joint Secretary to that Government, or such officer of the State Government not below the rank of Secretary to that Government, as the case may be, as may be specified by the Central Government or the State Government, by notification published in the Official Gazette; [(ea)] ………………. (q) ……………………..” 8. And Chapter - III containing section 10 to 14 and chapter IV contains section 15 to 23 of the Act deals with offence, penalties and punishment for terrorist activities etc. The sentence provided for different offences may be punishable with death or up to imprisonment for life. 9. It is also relevant to state Chapter – III of the Code of Criminal Procedure containing section 26 to 35 deals with power of courts and section 28 reads as such:– 28. Sentences which High Courts and Sessions Judges may pass.–(1) A High Court may pass any sentence authorized by law. (2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorized by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court. (3) An Assistant Sessions Judge may pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years.” 10. On the plain reading of the provisions of penalties and punishment as prescribed under the Act and empowering to award, it is crystal clear that Sessions Judge is the lowest court empowered to try the cases punishable with death or up to imprisonment for life. Thus, in that view of the matter for the purposes to discharge the duties of a court as defined under section 2(c) and (d) of the Act. Thus, in that view of the matter for the purposes to discharge the duties of a court as defined under section 2(c) and (d) of the Act. It is the Court of Session or the court having such power, if specially constituted, empowered to proceed, and as submitted no Special Court has yet been constituted for the purpose, thus, the Sessions Judge of particular Division has to function as of “Court” under the ‘Act’. 11. Whereas the provisions as contemplated under Section 26 & 27 of the Act deals with the effect of any order passed by the Court under Section 25(6) of the Act. And any person, if aggrieved, against such order has a right, to file appeal before the High Court. This also clearly indicates that the Court as defined under section 2 of the Act, is the Court against whose order on judgment any appeal, directly lies to the High Court, thus, it is none else than the Court having power as of Sessions Judge. 12. And Section 31 and 47 of the Act which reads as such:– “31. Powers of Designated Authority.–The Designated Authority, acting under the provisions of this Chapter, shall have all the powers of a Civil Court required for making a full and fair inquiry into the matter before it. 47. Bar of jurisdiction.–(1) Save as otherwise expressly provided in this Act, no proceeding taken under this Act by the Central Government or the District Magistrate or any officer authorized in this behalf by the Central Government or the District Magistrate, shall be called in question in any Civil Court in any suit or application or by way of appeal or revision, and no injunction shall be granted by any Civil Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. (2) Notwithstanding anything contained in sub-section (1), no Civil Court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority in relation to the matters referred to in section 36.” 13. True it is that the Designated Authority as defined under section 2(e) while examining the matters before it shall have all power of the Civil Court for the purposes of full and fair inquiry and section 47 bars jurisdiction of Civil Court to interfere by way of civil suit etc. 14. True it is that the Designated Authority as defined under section 2(e) while examining the matters before it shall have all power of the Civil Court for the purposes of full and fair inquiry and section 47 bars jurisdiction of Civil Court to interfere by way of civil suit etc. 14. But at the same time, it is also true that jurisdiction of Civil Court to interfere in the proceeding under the Act is confined to the prescribe limit under the Act and as stated above the Court as defined under the Act is the Session Court empowered to try and also proceed with the case from the stage of examining seizure of the property after its confirmation for attachment etc. by the Designated Authority. Here section 47 of the Act which is confined to the matters referred to section 36 of the Act only does not come in the way of the Court. Proceeding under Section 25(6) or trial for the offences punishable under the Act. 15. The facts and circumstances stated above sufficiently indicates that the Sessions Judge was not right while dismissing the appeal preferred under Section 25(6) of the Act holding himself having no jurisdiction rather it is he who as Sessions Judge has jurisdiction to try the case and examine the order passed by the Designated Authority as per law consequently such order cannot sustain. 16. Now, the question comes for adjudication is maintainability of the writ application filed on 03.12.2012, during pendency of the appeal, mainly on the ground of alleged anticipation of having no chance of early hearing and disposal of the appeal for which no limit is prescribed. But as appears it is heard and disposed of, almost within quarter past one month of filing of this application. It was open for the petitioners, if at all aggrieved to seek other remedies available including filing of appeal against the order as prescribed under section 28 of the Act in this court. 17. But, in fact, due to availability of other remedies, writ application ordinarily could not have been entertained. It was open for the petitioners, if at all aggrieved to seek other remedies available including filing of appeal against the order as prescribed under section 28 of the Act in this court. 17. But, in fact, due to availability of other remedies, writ application ordinarily could not have been entertained. However, taking into consideration the period already lapsed, and this writ application had already been admitted for hearing, hence, in the interest of justice, it would not be proper to throw it out on the above grounds alone, but it be disposed of with a direction to the Sessions Judge to re-hear and decide at the earliest Criminal Appeal No. 130 of 2012, pass appropriate order on merit in accordance with law without being prejudice of any observation, if made above, affecting merit of the case including period of limitation prescribed. At the same time, it may be made clear that this order cannot be treated as a precedent to entertain and proceed with any such writ application, if situation, as in the instant case, arises in future in any other case where the question to entertain and proceed with any writ application may be considered and decided as the case may be. 18. Accordingly ordered.