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2016 DIGILAW 885 (ORI)

Renubala Das v. State of Odisha (Vigilance)

2016-09-28

K.R.MOHAPATRA, VINOD PRASAD

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JUDGMENT : Petitioners in this petition under Article 227 of the Constitution of India seek to assail the order dated 13.09.2013 passed by the learned Special Judge, Special Court, Cuttack in Misc. Case No. 1 of 2012 rejecting an application for release of cash and other articles including Bank and Postal deposits, Pass Book and other documents seized in connection with T.R. Case No. 5 of 2008 of his Court registered under Section under Section 13(2) read with Section 13 (1)(e) of the Prevention of Corruption Act, 1988 (for short ‘the P.C. Act’) 2. The pleadings in the petition under Article 227 reveals that the predecessor of the petitioners, namely, Khetrabasi Das (for short ‘person affected’) was an accused in T.R. Case No.5 of 2008 of the Court of learned Special Judge, Special Court, Cuttack, registered for commission of offence under Section 13(1) (e) read with Section 13 (2) of the P.C. Act. On 03.04.1988, the residential house of person affected situated at Tulusipur, Cuttack and his parental house situated at Gopapur in the district of Keonjhar were simultaneously raided by the Vigilance Department on the allegation of acquiring disproportionate assets. Household articles, including valuable documents and cash of Rs.40,143/- were seized, for which T.R. Case No. 5 of 2008 was initiated. During pendency of the aforesaid case, the Government of Odisha through Public Prosecutor filed a petition under Section 13 of the Orissa Special Courts Act, 2006 (for short ‘Act 2006’) before the Authorized Officer for initiation of a confiscation proceeding. On the basis of said petition, Confiscation Case No.1 of 2009 was initiated on the file of the learned Authorized Officer Cuttack. On receipt of the application, notice for confiscation was served on the person affected under Section 14 of Act, 2006. At such a juncture, person affected breathed his last on 20.11.2010 leaving behind the petitioners as his legal hairs. On the death of person affected, T.R. Case No.5 of 2008 abated. Likewise, Confiscation Case No.1 of 2009 was also dropped by the Authorized Officer pursuant to petition dated 26.2.2011 filed by the present petitioners on account of death of the said person affected. While the matter stood thus, the petitioners filed a petition before Special Judge, Special Court, Cuttack, (Misc. Likewise, Confiscation Case No.1 of 2009 was also dropped by the Authorized Officer pursuant to petition dated 26.2.2011 filed by the present petitioners on account of death of the said person affected. While the matter stood thus, the petitioners filed a petition before Special Judge, Special Court, Cuttack, (Misc. Case No.1 of 2009) for return/release of the seized documents, such as, Bank and Postal deposits, passbooks and other materials including cash seized during the raid conducted by the Vigilance Department. The learned Special Judge on consideration of the petition as well as submissions made by the parties, rejected the same by his order dated 13.09.2013 (Annexure-2), against which the petitioners filed the instant petition. 3. In course of hearing of the petition, this Court by order dated 07.09.2015 made a query to Mr. Gokulananda Mohapatra, learned counsel for the petitioners, as to whether the application for release of the property accumulated by alleged illegal resources can be entertained by the learned trial Judge or only the Authorized Officer is empowered to deal with the question of release of such property, in case of demise of the accused. 4. Mr. Mohapatra, learned counsel for the petitioners submits that though application for confiscation of the properties of the accused Keshetrabasi Das (person affected) was filed before the Authorized Officer, but the properties sought to be confiscated were neither transferred nor placed before the Authorized Officer for confiscation. It is the Authorized Officer, after a declaration made under Section 15 of the Act, 2006 can direct the person, who may be in possession of money or property or both, alleged to have been illegally accumulated, to surrender or deliver possession thereof to the Authorized Officer. Thus, the properties seized under the proceeding initiated under Section 13(1)(e) read with Section 13 (2) of the P.C. Act, 1988 being not in possession or control of the Authorized Officer, he had no jurisdiction to issue a direction for release of the same in favour of the petitioners. The Authorized Officer can only assume jurisdiction to entertain such a petition once he takes possession of such property under Section 16 of the Act, 2006. Thus, an application for release of the seized articles can only be maintainable before the Special Court before whom the T.R. Case was pending. The Authorized Officer can only assume jurisdiction to entertain such a petition once he takes possession of such property under Section 16 of the Act, 2006. Thus, an application for release of the seized articles can only be maintainable before the Special Court before whom the T.R. Case was pending. Hence, he prayed to quash the order under Annexure-2 and issue a direction for release of the aforesaid seized articles by the Special Court. 5. Mr. Srimant Das, learned Senior Standing Counsel for the Department of Vigilance, per contra vehemently opposing contention of Mr. Mohapatra submits that the proposition raised by Mr. Mohapatra is unknown to law. Further, he submits that a trial under the provisions of the P.C. Act does not provide for any procedure either for confiscation or to deal with such proceeding. It is entertained by an Authorized Officer appointed for the purpose of carrying out the confiscation proceeding under the provisions of the Act, 2006. A confiscation proceeding can only be initiated on an application filed by Public Prosecutor being so authorized by the State Government, for confiscation of money or other property allegedly acquired by unlawful means, whether or not the Special Court, constituted under the Act, 2006, has taken cognizance of the offence. Thus, the proceeding under Section 13 of the Act, 2006 is an independent proceeding from one initiated under the provisions of P.C. Act, 1988. Hence, he prayed for dismissal of the petition being devoid any merits. 6. Taking into consideration rival contentions of the learned counsel for the parties, the question that crops up, and also recorded by this Court in its order dated 20.9.2016 in course of hearing of the petition for consideration, is as to whether under Sections 14, 15, 18 and 19 of the Act, 2006 read together gives a right to a Special Judge to release the property, when in fact, no trial has commenced before it nor the cognizance has been taken. Before delving into the question, it is made clear that the petitioners had not made any application before the learned Authorized Officer for release of the seized money as well as other properties, although a proceeding in Confiscation Case No.1 of 2009 was initiated on the file of learned Authorized Officer pursuant to an application under Section 13 of the Act, 2006 by the Public Prosecutor being so authorized by the State Government. 7. 7. Chapter-III of the Act, 2006 deals with confiscation of property. Section of the Act, 2006 mandates that upon receipt of an application under the said provision Authorized Officer shall serve a notice on the person in respect of whom the application has been made calling upon him to show cause as to why all or any money or property, or both should not be declared to have been acquired by means of the offence alleged to have been committed by him, confiscated to the State Government in compliance of provision under Section 14 of the Act, 2006. After giving a reasonable opportunity of hearing to the person upon whom notice under Section 14 has been served, he may pass an order confiscating all or any part of the money as well as the property so involved to be confiscated to the State free from all encumbrances. Where any money or property, or both have been confiscated to the State, the Authorized Officer, under the provisions of Section 16 of the Act 2006, shall make an order directing the person affected as well as any other person, who is in possession of such property or money, to deliver possession thereof to concerned Authorized Officer or to any officer duly authorized by him in that behalf within the time specified in the order. Section 19 deals with refund of confiscated money or property, which reads as follows:- “19. Refund of confiscated money or property.— Where an order of confiscation made under Section 15 is modified or annulled by the High Court in appeal or where the person affected is acquitted by the Special Court, the money or property or both shall be returned to the person affected and in case it is not possible for any reason to return the property, such person shall be paid the price thereof including the money so confiscated with the interest at the rate of five percent per annum thereon calculated from the date of confiscation.” 8. On a close reading of Section 19 of the Act, 2006, it is abundantly clear that the order of confiscation passed under Section 15 of the Act, if either modified or annulled by the High Court under Section 17 of the Act, or where a person facing trial is acquitted by the Special Court from the charges leveled against him, the money or property, or both so confiscated, shall be refunded to him and where it would not be possible on the part of the Authorized Officer to refund and/or the money or property, or both to the person affected, he can direct that such person should be paid the price of the property including money, so confiscated, with interest @ 5% per annum. From a compendious reading of the aforesaid provisions, viz., Sections 13, 14, 15, 18 and 19 of the Act 2006, it is crystal clear that the Authorized Officer is only competent authority to refund and/or return the money or property so confiscated. 9. In the instance case, although a proceeding for confiscation in Confiscation Case No.1 of 2009 was initiated on the file of the Authorized Officer under Section 13 of the Act, 2006, no order of confiscation as required under Section 15 of the Act could be passed before the death of the person affected, namely, late Khetrabasi Das. On the death of the person affected, Confiscation Case No. 1 of 2009 was dropped. Thus, an obvious question that arises as to whether the Authorized Officer would be competent to pass an order to refund/release the money or property so seized in a proceeding under the provisions of the P.C. Act. In the instance case, initiation of confiscation proceeding under the provisions of the Act, 2006 can not be questioned because the Court can entertain a petition under Section 13 of the Act irrespective of the fact that cognizance of offence under the Act has not been taken. On and from the date, the Authorized Officer takes cognizance of the petition and issues notice to the person affected under Section 14 of the Act, 2006, the trial Judge lacks jurisdiction to deal with the said property involved in the confiscation proceeding. Thus, it is only the Authorized Officer, who can deal with the property in the manner prescribed under the provisions of the Act, 2006. Thus, it is only the Authorized Officer, who can deal with the property in the manner prescribed under the provisions of the Act, 2006. No doubt, the Authorized Officer has jurisdiction to refund/return the money or the property, or both involved in a confiscation proceeding under two contingencies, such as.— (i) when the order of confiscation made under Section 15 is modified or annulled by the Court in appeal under Section 17 of the Act, 2006; and (ii) whether the person affected is acquitted by the Special Judge? Thus, Section 19 of the Act, 2006 mandates that when the affected person is acquitted of the offence alleged against him, the Authorized Officer is under obligation to refund the money and return the properties so confiscated. On and from the date when a proceeding for confiscation is initiated pursuant to an application under Section 13 of the Act, 2006, the Authorized Officer takes control of the properties so involved and will act in accordance with the provisions of the Act, 2006. It necessarily implies that the Special Judge before whom the trial is pending lacks jurisdiction to deal with the property so seized. When the Authorized Officer has the jurisdiction to release the money and property confiscated after acquittal of the person affected, there is no reason as to why he would lack jurisdiction or competence to deal with the property after the death of the person affected, whether or not order under Sections 15, 16 or 18 of the Act, 2006 has been passed. Release or refund of the property or money does not have any bearing as to whether or not the possession of the money or property involved has been confiscated or the possession of the same has been taken over by the Authorized Officer. It has the same power to pass an order under Section 19 even if no order has been passed under Section 15 or 18 of the Act, 2006. 10. From the foregoing discussions, we have no hesitation to hold that the Authorized Officer is the only competent authority to deal with an application for release of the money and/or property involved in a confiscation proceeding in case of demise of an accused and thus the Special Court has rightly passed the impugned order rejecting the application for return of money and property of the person affected. 11. 11. Thus, the CRLMP merits no consideration and the same is accordingly dismissed.