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Madhya Pradesh High Court · body

2016 DIGILAW 957 (MP)

Tarachand Patidar v. State of M. P.

2016-10-24

RAJEEV KUMAR DUBEY, S.C.SHARMA

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ORDER : S. C. SHARMA, J. Regard being had to the similitude in the controversy involved in the present cases, the petitions were analogously heard and by a common order, they are being disposed of by this Court. Facts of M. Cr. C. No. 10456/2014 are narrated hereunder. 2. The petitioner before this Court has filed this present petition being aggrieved by order dated 13-9-2013 passed by the State Government by which the Public Prosecutor has been authorized for making an application to the Authorized Officer for confiscation of the properties of the petitioner. The petitioner is further aggrieved with action of the Public Prosecutor in submitting the application to the Court against the petitioner as well as other family members in Special Case No. 05/2014 for confiscation of money and other properties. 3. The facts of the case reveal that Lokayukta Establishment has registered a criminal case at Crime No. 70/2010 against the petitioner on 31-8-2010 for offences punishable under section 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988. The petitioner’s contention is that order passed by the State Government dated 13-9-2013, by which the Public Prosecutor has been authorized to make an application before the Authorized Officer for confiscation of money and other properties, is bad in law. 4. It has been stated that the order has been passed by the Principal Secretary and not by the State Government and therefore, as it has been passed by Principal Secretary, Department of General Administration, it deserves to be quashed by this Court. It has been further stated that the order passed by the State Government is a nullity as there was no sufficient material available with the State Government to pass the aforesaid order. 5. It has been argued that prima-facie evidence should have been disclosed while passing the impugned order and as the order does not disclose the evidence on the basis of which the order has been passed, the order deserves to be set aside. A prayer has been made for quashment of order dated 13-9-2013 and for quashment of confiscation proceedings pending in Special Case No. 05/2014 before the learned Special Judge, Indore (constituted under the ‘M. P. Vishesh Nyayalaya Adhiniyam, 2011’). 6. A prayer has been made for quashment of order dated 13-9-2013 and for quashment of confiscation proceedings pending in Special Case No. 05/2014 before the learned Special Judge, Indore (constituted under the ‘M. P. Vishesh Nyayalaya Adhiniyam, 2011’). 6. On the other hand, a reply has been filed on behalf of the respondents and the respondents have stated that under Rule 6 of the M. P. Vishesh Nyayalaya Niyam, 2012 a notification has been issued on 13-9-2013 and based upon the Notification dated 13-9-2013 the order has been passed by the Principal Secretary on 13-9-2013. The respondents have further stated that by virtue of order dated 13-9-2013 mere directions have been given to the respondents and a Public Prosecutor has also been appointed under Rule 7 of sub-rule (1) of the Rule of 2012. 7. The respondents have placed heavy reliance upon Rule 7 of the Business Allocation Rules and their contention is that as per the provisions of Business Allocation Rules, the Principal Secretary was competent to pass an order on behalf of the State Government. The respondents have also brought to the notice of this Court that in identical circumstances, petition filed by the similarly placed persons have been dismissed. 8. Heard learned counsel for the parties and perused the record. 9. In the present case, the undisputed facts reveal that the petitioner is facing prosecution for offences punishable under section 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988. The relevant provisions governing the field which are necessary for adjudicating the controversy involved in the case are reproduced as under :— “Rule 6 of M. P. Vishesh Nyayalaya Niyam, 2012 :— 6. Declaration. — The declaration to be made by the Principal Secretary/Secretary of General Administration Department under sub-section (1) of section 5 shall be in Form I. (2) The declaration shall be published in the official Gazette and communicated to — (i) the Special Court; (ii) the concerned Court of the Special Judge under the Prevention of Corruption Act, 1988 (No. 49 of 1988) from which the pending proceedings stand transferred; (iii) the investigating agency or agencies; (iv) the person affected; (v) General Administration Department, Government of Madhya Pradesh: and (vi) any other authority as may be considered expedient by the State Government. Rules 6 and 7 of Business Allocation Rules :— 6. Rules 6 and 7 of Business Allocation Rules :— 6. All orders or instruments made or executed by order or on behalf of the Government of M. P. shall be expressed to be made or executed by order and in the name of Governor of M. P. 7. Save in cases wherein an officer has been specially empowered to sign on order or instrument of the Governor of M. P. Every such order or instrument shall be signed either by the Chief Secretary, Additional Chief Secretary, Principal Secretary, Secretary, Additional Secretary, Jt. Secretary, Dy. Secretary or under Secretary to the Government of M. P., and such signature shall be deemed to be the proper authentication of such order or instrument.” 10. The State Government keeping in view the aforesaid statutory provisions of law has issued a Notification on 13-9-2013 and the same reads as under :— 11. The State Government has thereafter, issued another notification which is annexed with the petition as Annex.-P/1 dated 13-9-2013 empowering the Special Public Prosecutor to file appropriate application for confiscation proceedings and the same reads as under :— 12. The aforesaid notification is under challenge before this Court. Rule 6 of Business Allocation Rules empowers the State Government to issue an order / notification signed by the Principal Secretary of the Department. Not only this, the notification in consonance of Rules of 2012 (Rule 6) has been issued by and in the name of Governor and therefore, in the considered opinion of this Court the question of quashing the notification on the ground that it has not been issued in the name of Governor, does not arise. 13. The another important aspect of the case is that it was argued by learned counsel for the petitioner that Rules of 2011 are not applicable with retrospective effect and as FIR was lodged on 13-8-2010, proceedings under Rules of 2011 stands vitiated. 14. The Apex Court in the case of Yogendra Kumar Jaiswal vs. State of Bihar and others reported in AIR 2016 SC 1474 was dealing with the similar controversy and paragraphs No. 137, 138, 140 and 142 of the aforesaid judgment reads as under :— “137. 14. The Apex Court in the case of Yogendra Kumar Jaiswal vs. State of Bihar and others reported in AIR 2016 SC 1474 was dealing with the similar controversy and paragraphs No. 137, 138, 140 and 142 of the aforesaid judgment reads as under :— “137. In the case at hand, the entire proceeding is meant to arrive at the conclusion whether on the basis of the application preferred by the Public Prosecutor and the material brought on record, the whole or any other money or some of the property in question have been acquired illegally and further any money or property or both have been acquired by the means of the offence. After arriving at the said conclusion, the order of confiscation is passed. The order of confiscation is subject to appeal under section 17 of the Orissa Act. That apart, it is provided under section 19 where an order of confiscation made under section 15 is modified or annulled by the High Court in appeal or the where the person affected is acquitted by the special Court, the money or property or both shall be returned to the person affected. Thus, it is basically a confiscation which is interim in nature. Therefore, it is not a punishment as envisaged in law and hence, it is difficult to accept the submission that it is a pre-trial punishment and, accordingly, we repel the said submission. 138. The next facet of the said submission pertains to retrospective applicability. The submission has been put forth on the ground that by transfer of cases to the Special Courts under the Orissa Act in respect of the accused persons who are arrayed as accused under the 1988 Act, have been compelled to face harsher punishment which is constitutionally not permissible. It is contended that there was no interim confiscation under the 1988 Act but under the Orissa Act they have to face confiscation. We have already opined that confiscation is not a punishment and, therefore, Article 20(1) is not attracted. Thus, the real grievance pertains to going through the process of confiscation and suffering the same after the ultimate adjudication of the said proceeding which is subject to appeal. In this context we are required to see the earlier provision. The 1988 Act provides for applicability of Criminal Law Amendment Ordinance, 1944. Thus, the real grievance pertains to going through the process of confiscation and suffering the same after the ultimate adjudication of the said proceeding which is subject to appeal. In this context we are required to see the earlier provision. The 1988 Act provides for applicability of Criminal Law Amendment Ordinance, 1944. Section 2 refers to “interpretation” and in sub-section (1) it is stipulated that “Schedule offence” in the Ordinance means an offence specified in the Schedule to the Ordinance; section 3 deals with the application for attachment of property; section 4 provides for ad interim attachment; section 5 deals with investigation of objections to attachment; section 6 provides for attachment of property of mala fide transferees; section 7 stipulates how execution of orders of attachment shall take place; section 8 provides for security in lieu of attachment and section 9 deals with administration of attached property. Section 10 deals with duration of attachment and section 11 provides for appeals. Section 13 deals with disposal of attached property upon termination of criminal proceedings. Section 13(3) reads as follows :— “(3) Where the final judgment or order of the Criminal Courts is one of conviction, the District Judge shall order that from the property of the convicted person attached under this Ordinance or out of the security given in lieu of such attachment, there shall be forfeited to Government such amount or value as is found in the final judgment or order of the Criminal Courts in pursuance of section 12 to have been procured by the convicted person by means of the offence, together with the costs of attachment as determined by the District Judge and where the final judgment or order of the Criminal Courts in pursuance of section 12 to have been procured by the convicted person by means of the offence, together with the costs of attachment as determined by the District Judge and where the final judgment or order of the Criminal Courts has imposed or upheld a sentence of fine on the said person (whether alone or in conjunction with any other punishment), the District Judge may order, without prejudice to any other mode of recovery, that the said fine shall be recovered from the residue of the said attached property or of the security given in lieu of attachment.” 140. We have already held that confiscation is not a punishment and hence, Article 20(1) is not violated. Learned counsel for the State would lay stress on the decision in State of Andhra Pradesh and Others v. CH. Gandhi 67. In that case, the issue that arose for consideration when the disciplinary proceeding was initiated, one type of punishment was imposable and when the punishment was imposed due to amendment of rule, a different punishment, which was a greater one, was imposed. The High Court opined that the punishment imposed under the amended rule amounted to imposition of two major penalties which was not there in the old rule. Dealing with the issue the Court referred to the rule that dealt with major penalties and the rule making power. Reference was made to the decision in Pyare Lal Sharma v. Managing Director and others wherein it has been stated that no one can be penalised on the ground of a conduct which was not penal on the date it was committed. Thereafter, the two-Judge Bench referred to the authority K. Satwant Singh v. State of Punjab wherein it has been held thus :— “...In the present case a sentence of imprisonment was, in fact, imposed and the total of fines imposed, whether described as ‘ordinary’ or ‘compulsory’, was not less than the amount of money procured by the appellant by means of his offence. Under section 420 of the Penal Code an unlimited amount of fine could be imposed. Article 20(1) of the Constitution is in two parts. The first part prohibits a conviction of any person for any offence except for violation of law in force at the time of the commission of the act charged as an offence. The latter part of the article prohibited the imposing of a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The offence with which the appellant had been charged was cheating punishable under section 420 of the Penal Code which was certainly a law in force at the time of the commission of the offence. The sentence of imprisonment which was imposed upon the appellant was certainly not greater than that permitted by section 420. The offence with which the appellant had been charged was cheating punishable under section 420 of the Penal Code which was certainly a law in force at the time of the commission of the offence. The sentence of imprisonment which was imposed upon the appellant was certainly not greater than that permitted by section 420. The sentence of fine also was not greater than that which might have been inflicted under the law which had been in force at the time of the commission of the offence, as a fine unlimited in extent could be imposed under the section.” 142. We are absolutely conscious that the said judgment was delivered in a different context. What is prohibited under Article 20(1) is imposition of greater punishment that might have been imposed and prohibition of a conviction of any person for violation of law at the time of commission of the act. We repeat at the cost of repetition that confiscation being not a punishment does not come in either of the categories. Thus viewed, the property of an accused facing trial under the 1988 Act could be attached and there can be administration by third party of the said property and eventual forfeiture after conviction. The term “attachment” has been understood by this Court in Kerala State Financial Enterprises Ltd. vs. Official Liquidator, High Court of Kerala in the following manner :— “The word “attachment” would only mean “taking into the custody of the law the person or property of one already before the Court, or of one whom it is sought to bring before it”. It is used for two purposes: (i) to compel the appearance of a defendant; and (ii) to seize and hold his property for the payment of the debt. It may also mean prohibition of transfer, conversion, disposition or movement of property by an order issued by the Court.” 15. The Apex Court in the aforesaid case has held that property of an accused facing trial under the Act of 1988 could be attached and there can be administration by third party of the said property and eventual forfeiture after conviction. 16. Not only this, the issue regarding retrospective application of the Act has also been considered by the Division Bench of this Court again in the case of Ramendra @ Raman Dhuldhue vs. State of M. P. passed in M. Cr. 16. Not only this, the issue regarding retrospective application of the Act has also been considered by the Division Bench of this Court again in the case of Ramendra @ Raman Dhuldhue vs. State of M. P. passed in M. Cr. C. No. 4045/2012 [2012 MPLJ Online (Cri.) 1] and the Division Bench in paragraphs No. 3 to 5 has held as under :— “3. Heard the counsel for applicant at length. He submitted that Special Judge was bound to explain the procedure and the remedies available under the Act. He further submitted that it is necessary to inform the applicant at the outset so that he can plan “a road map to fight out frivolous and unfounded allegations” made against him. It was also argued that raid for the check period was conducted on 18-12-2011 whereas the Act came into force subsequently, therefore, provisions of the Act could not be made applicable retrospectively to take away vested right. In support of contention he referred to decisions which have been quoted by the Special Judge in the order impugned. 4. The Madhya Pradesh Vishesh Nyayalaya Adhiniyam, 2011 was passed by the State Legislature. It was brought into force, after it received the assent of the President. The Statement of Object and Reasons accompanying the Bill (published in M.P. Rajpatra Asadharan dated 26-2-2011) shows the background, antecedent state of affairs, surrounding circumstances leading up to the legislation and the evil which the Statute seeks to remedy. The preamble of the Act also clearly expresses the scope, object and purpose of the Act. In fact, it is held to be “a key to open the minds of the makers of the Act and the mischief which they intend to redress.” A bird’s eye view of the Act shows that section 2(e) defines “offence” to mean “an offence of criminal misconduct which attracts application of section 13(1)(e) of the Prevention of Corruption Act either independently or in combination with any other provision of the Act or any of the provision of Indian Penal Code. Section 3 provides for the establishment of Special Courts for trial of “offence” committed by a person holding a public office or a public servant. Section 3 provides for the establishment of Special Courts for trial of “offence” committed by a person holding a public office or a public servant. Section 5 empowers the State Government to issue a declaration of the cases relating to “offence” committed by holder of public office or by a public servant within the meaning of section 2(c) of the Prevention of Corruption Act, 1988. Once a declaration under section 5 is made and issued, then the jurisdiction to try the accused person/persons for the “offence under the Act” vests only in the Special Court. Chapter III of the Act deals with “confiscation of property”. Section 13 provides for confiscation of the money and other property. Under this section, State Government can authorize the Public Prosecutor to move an application for confiscation of the money and other property which prima facie have been procured by means of the offense by a holder of a public office or a public servant. Section 14 requires a notice of the application upon the affected person to show cause against confiscation of money or property, which the State Government has reasons to believe, have been procured by means of the offence. Section 15 empowers the Authorized Officer to pass an order of confiscation of money or property. Section 15(5) enjoins upon the Authorized Officer to dispose of proceedings for confiscation within six months. This clearly shows that no elaborate enquiry is required for deciding the application and it has to be disposed of in summary manner as expeditiously as possible within a period of six months. An appeal is provided against the order of the Authorized Officer to the High Court. Section 19 provides that where an order of confiscation if modified or annulled by the High Court in appeal or where the person affected is acquitted by the Special Court, the money or the property or both shall be returned. This survey of the relevant provisions does not show that the Act gives retrospectivity to “Offence” as contended by the Counsel during the course of arguments. “Offence” is already defined in the Prevention of Corruption Act, 1988. This Act only prescribes the forum and procedure to be followed to deal with cases for which a declaration is made under section 5 of the Act. “Offence” is already defined in the Prevention of Corruption Act, 1988. This Act only prescribes the forum and procedure to be followed to deal with cases for which a declaration is made under section 5 of the Act. The Act does not create a new offence in respect of past transaction so as to take away any vested right or creates new burden. The Act does affect the prescribed punishment for the offence, but provides for confiscation of money and/or properties procured by means of criminal misconduct. It is well settled that Legislature is competent to provide for confiscation in addition to punishment. See Indo China Steam Navigation Co Ltd. vs. Jasjit Singh, AIR 1964 SC 1140 ; C. Devamani vs. State, 1983 Cri.L.J. 1320; Shambhu Dayal Agarwal vs. State of West Bengal, (1990) 3 SCC 549 ; Kailash Chand vs. State of M.P., AIR 1995 MP 1 ; State of W.B. vs. Sujit Kumar Rana, (2004) 4 SCC 129 . Recently, whole conspectus of the case law discussed by a Division Bench while deciding Criminal Reference No. 1 of 2010 on 21-4-2010. 5. In view of the foregoing discussion, we do not find any merit and substance in both petitions. Consequently, they are hereby dismissed. Let a copy of this order be retained in the record of connected M.Cr.Case No. 3981 of 2012 (Ashok Dhuldhue vs. State of M.P.).” 17. The judgment delivered by the Division Bench of this Court has been affirmed by the Hon’ble Supreme Court and the Special Leave Petition as stated aforesaid has been dismissed on 10-12-2015. 18. The Hon’ble Apex Court in the case of Ramendra @ Raman Dhuldhue vs. State of M. P. reported in AIR 2016 SC 1553 has taken a similar view relying upon the aforesaid judgment. The Apex Court has dealt with the provisions of M.P. Vishesh Nyayalaya Adhiniyam, 2011. The judgment delivered in the case of Ramendra (supra) passed in Criminal Appeal No. 56/2013 decided on 10-12-2015 reads as under :— “The appellant was appointed on the post of Assistant Grade III in the Regional Transport Office, Indore. A search was conducted on the residential premises of the appellant on the allegation that the property was acquired from the ill-gotten money of criminal misconduct as per section 13(1)(e) of the Prevention of Corruption Act, 1988. 2. A search was conducted on the residential premises of the appellant on the allegation that the property was acquired from the ill-gotten money of criminal misconduct as per section 13(1)(e) of the Prevention of Corruption Act, 1988. 2. After M. P. Vishesh Nyayalaya Adhiniyam, 2011 (for short, “the Act”) came into force, the appellant was brought within the ambit of that Act by declaration under section 5 of the Act. 3. As the factual matrix would reveal, after the declaration, the prosecution filed an application under section 13(1) for confiscation of the property under section 15(3). The appellant protested and filed application for his discharge, but the said application met with non-success. The appellant approached the High Court under section 482 of the Code of Criminal Procedure, 1973 for quashment of the order passed by the Special Judge. It was contended before the High Court that the Act could not be made retrospectively applicable inasmuch as it is a substantive law having penal consequence. 4. The High Court, as is manifest from the impugned order, after analyzing the provisions and also keeping in view the concept of confiscation, has not accepted the plea of retrospective applicability of the Act. 5. In our considered opinion, the view expressed by the High Court is infallible in view of the judgment pronounced by us today in Civil Appeal Nos.6448-6452 of 2011 titled (Reported in AIR 2016 SC 1474 ) Yogendra Kumar Jaiswal Etc. vs. State of Bihar & Ors. 6. Resultantly, the appeal being devoid of merit, stands dismissed.” 19. Resultantly, this Court does not find any reason to interfere with the impugned order passed by the respondents. The petition preferred under section 482 of Code of Criminal Procedure, 1973 stands dismissed along with other connected petitions. Certified copy as per rules.