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2014 DIGILAW 909 (ORI)

BIPIN BIHARI PANDA v. STATE OF ODISHA

2014-12-24

BISWAJIT MOHANTY, PRADIP MOHANTY

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JUDGMENT : P. Mohanty, J.?In this writ petition (criminal) the proceeding in Confiscation Case No. 1 of 2010 pending before the learned Authorized Officer, Special Court, Bhubaneswar is sought to be quashed by the petitioners. The background facts giving rise to initiation of the aforesaid confiscation proceeding against the petitioners are delineated hereunder in a short compass: On the basis of information gathered from reliable source the vigilance police on 03.09.1997 raided the residential houses of petitioner No. 1 situated at Bhubaneswar, Aska and Berhampur so also his office and residential office at Cuttack. In course of search it revealed that during the check period, i.e., from 01.01.1982 to 03.09.1997, while holding the posts of Executive Engineer and Superintending Engineer under the State Government, petitioner No. 1 acquired and possessed huge assets disproportionate to his known lawful source of income by indulging in corrupt practices. As such, Bhubaneswar Vigilance P.S. Case No. 37 dated 10.09.1997 was registered and after completion of investigation charge-sheet was laid against petitioner No. 1 for alleged commission of offence under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988, as a result of which he is facing trial as an accused in T.R. Case No. 15/30-2008/2006 pending before the learned Special Judge, Special Court, Bhubaneswar. On scrutiny of records it was further found by the investigating authority that during the aforesaid check period petitioner No. 2, who is the wife of petitioner No. 1, also acquired some properties, although she did not have any appreciable source of income of her own at the relevant time, and she was also unable to offer any satisfactory explanation for acquisition of such properties. As the things stood thus, the State Government filed an application under Section 13(1) of the Orissa Special Courts Act, 2006 (for short "the Act") before the learned Authorized Officer, Special Court, Bhubaneswar for confiscation of the disproportionate assets acquired by the petitioners. The said application has been registered as Confiscation Case No. 1 of 2010 and the learned Authorized Officer being satisfied has issued notice of confiscation to the petitioners. 2. Mr. Bijan Ray, learned Senior Advocate appearing for the petitioners mainly urged before us that provisions of Section 13 of the Act had not been followed while initiating the aforesaid confiscation proceeding. 2. Mr. Bijan Ray, learned Senior Advocate appearing for the petitioners mainly urged before us that provisions of Section 13 of the Act had not been followed while initiating the aforesaid confiscation proceeding. According to him, Section 13(1) prescribed that the State Government would authorize the Public Prosecutor for making an application to the Authorized Officer for confiscation. That means, the Public Prosecutor himself should make an application to the Authorized Officer for confiscation, if he received an authorization from the State Government in regard to that. But, in the instant case, the application had been made by the holding I.O. and not by the Public Prosecutor. In such view of the matter, the very initiation of the confiscation proceeding was non est in the eye of law and, as such, the entire proceeding was vitiated. His further stand was that making an application and presenting an application were two different concepts under law. Legislature has specifically mandated that Public Prosecutor has to make an application as and when authorized by the State Government. In the present case, the Public Prosecutor might have presented the case, but had not made the application, as envisaged under the statute. In support of his contention, he filed his written submissions and relied upon the following decisions, namely, C.B.L. Bhatnagar Vs. The State, ; P.C. Joshi and Another Vs. The State of Uttar Pradesh, and Gour Chandra Rout and Another Vs. The Public Prosecutor, Cuttack, ; Gour Chandra Rout and Another Vs. Public Prosecutor, ; Rajendra Nath Haldar and others v. Nilratan Mitter and others, ILR 1896 CAL 958 and State of Rajasthan and Others Vs. Ghasilal. 3. Per contra, learned Standing Counsel (Vigilance) Mr. S. Das submitted that in the instant case the application for confiscation had been filed in accordance with the provisions of the Act and the Rules made thereunder. To be specific, the application for confiscation in the instant case had been filed by the Public Prosecutor attached to the Court consequent upon the authorization made by the State Government in terms of Section 13(1) of the Act. The holding investigating officer being acquainted with the facts of the case had sworn the affidavit appended to the application for confiscation. He further submitted that it was nowhere the requirement of law that the Public Prosecutor being authorized by the government should be the applicant himself. The holding investigating officer being acquainted with the facts of the case had sworn the affidavit appended to the application for confiscation. He further submitted that it was nowhere the requirement of law that the Public Prosecutor being authorized by the government should be the applicant himself. According to him, the duty of Public Prosecutor was to institute the case on behalf of the government and to conduct the case before the Authorized Officer. He also submitted that the decisions relied on by Mr. Ray had no application to the present case. 4. At the outset, it may be made clear that no order passed by the Authorized Officer has been challenged here. In order to appreciate the rival submissions of the parties, Section 13(1) of the Act, which is relevant for the purpose of this case, is quoted hereunder. 13. (1) Where the State Government, on the basis of prima-facie evidence, have reasons to believe that any person, who held high public or political office has committed the offence, the State Government may, whether or not the Special Court has taken cognizance of the offence, authorize the Public Prosecutor for making an application to the authorized officer for confiscation under this Act of the money and other property, which the State Government believe the said person to have procured by means of the offence. A bare reading of the aforesaid section makes it clear that the application for confiscation has to be filed/made before the Authorized Officer by the Public Prosecutor on being duly authorized by the State Government in that behalf, whether or not the Special Court has taken cognizance of the offence. Further, Section 13(1) nowhere requires that the Public Prosecutor himself should be the applicant. He is only to make an application on behalf of the State Government for confiscation of property to the State Government. In such background, in our view State can only be the applicant before the Authorized Officer and not the Public Prosecutor, as ultimately State is to derive benefit from confiscation by way of recovery of its property. However, in order to satisfy ourselves about the factual backdrop, vide order dated 17.09.2014, the original records in Confiscation Case No. 1 of 2010 of the Court of Authorized Officer, Special Court, Bhubaneswar were called for. Accordingly, the original records have been produced before this Court. However, in order to satisfy ourselves about the factual backdrop, vide order dated 17.09.2014, the original records in Confiscation Case No. 1 of 2010 of the Court of Authorized Officer, Special Court, Bhubaneswar were called for. Accordingly, the original records have been produced before this Court. This Court perused the records to find out as to if the application for confiscation was actually filed by the Public Prosecutor before the Authorized Officer or not. As it appears, one Satyabadi Das, who happens to be the Public Prosecutor has not only signed at each page of the said application but also at the end of the prayer just below the words "By the applicant". At page 12 of the said application the Public Prosecutor Satyabadi Das himself has endorsed a certificate to the effect that he has been duly authorized by the State Government to file the application. Similarly, at the bottom of page 13 below the words "Submitted by the Applicant", the Public Prosecutor Satyabadi Das has also signed. Therefore, it cannot be said that the application for confiscation has not been filed by the Public Prosecutor of the Court. The holding investigating officer Rabindra Kumar Panda being the deponent has signed at each page of the application for confiscation. Merely because his signature appears at page 9 of the application just above the words "By the applicant" (which is not the appropriate place for putting the signature of the applicant), it cannot be construed that the application for confiscation has been filed by the holding investigating officer Rabindra Kumar Panda and not by Public Prosecutor. For all these reasons, this Court holds that the application for confiscation has been filed/made by the Public Prosecutor before the Authorized Officer in accordance with law and thus the contention raised by the learned counsel for the petitioners in this regard merits no consideration. 5. Now, coming to the six decisions cited by learned counsel for the petitioners, namely, C.B.L. Bhatnagar Vs. The State, ; P.C. Joshi and Another Vs. The State of Uttar Pradesh, and Gour Chandra Rout and Another Vs. The Public Prosecutor, Cuttack, ; Gour Chandra Rout and Another Vs. Public Prosecutor, ; Rajendra Nath Haldar and others v. Nilratan Mitter and others, ILR 1896 CAL 958 and State of Rajasthan and Others Vs. Ghasilal this Court has perused the same and found that those decisions are factually distinguishable. The Public Prosecutor, Cuttack, ; Gour Chandra Rout and Another Vs. Public Prosecutor, ; Rajendra Nath Haldar and others v. Nilratan Mitter and others, ILR 1896 CAL 958 and State of Rajasthan and Others Vs. Ghasilal this Court has perused the same and found that those decisions are factually distinguishable. These decisions nowhere lay down that in a case of present nature, the Public Prosecutor should be the applicant and not the State, who is the real aggrieved party, whose property is alleged to have been swindled. For the foregoing discussions, this Court finds no merit in any of the contentions raised by the learned counsel for the petitioners. As such, the writ petition stands dismissed being bereft of merits. However, one thing is made clear that observations made in the present judgment would in no way influence the trial/the confiscation proceeding pending before the appropriate fora. Final Result : Dismissed