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2017 DIGILAW 240 (ORI)

Manjulata Panigrahi v. State of Orissa

2017-03-06

S.K.SAHOO

body2017
ORDER : S.K. Sahoo, J. 1. The short point that arises for consideration is whether notice for confiscation as envisaged under section 14 of the Orissa Special Courts Act, 2006 (hereafter 2006 Act') on the basis of an application under section 13 of the 2006 Act can be issued by the Authorised Officer against a person who has been discharged by the Special Court of the offence under section 13(1)(e) of the Prevention of Corruption Act, 1988? 2. The petitioner Manjulata Panigrahi has filed this application under section 482 of Cr.P.C. to quash the proceeding in Confiscation Case No. 02 of 2009 pending before the learned Authorized Officer, Special Court, Bhubaneswar. 3. It is not disputed that the petitioner along with accused Bichitrananda Muduli, Sukanti Muduli, Nalinikanta Muduli and Basanta Kumar Biswal were chargesheeted under section 13(1)(e) read with section 13(2) of the Prevention of Corruption Act, 1988 and sections 120-B/109/201 of the Indian Penal Code in T.R. Case No. 9/52 of 2008/2004 which is subjudiced before the Court of learned Special Judge, Special Court, Bhubaneswar. 4. The petitioner filed a petition for discharge before the learned Special Court and the learned Special Court vide order dated 24.02.2009 has been pleased to hold that on perusal of the seizure list, it transpires that it was only accused Nalinikanta Muduli who had handed over the attache to the petitioner and admittedly Nalinikanta Muduli had executed several contract works under the Water Resources Deptt. in which the petitioner was the Asst. Law Officer and in that connection, it was quite probable that the said accused had kept his attache in the custody of the petitioner at her quarters. Learned Special Court further held that the fact remains that at the time of seizure, the petitioner denied her knowledge regarding the contents of the briefcase which was handed over to her by Nalinikanta Muduli and therefore, in absence of any other document, it is difficult to believe that the petitioner was in conscious possession of the contents of the briefcase. The learned Special Court further held that from the fact of seizure only, it is not sufficient to prima facie believe that the petitioner conspired or abated the commission of the alleged offence and therefore, discharged the petitioner of the offences under section 13(1)(e) read with section 13(2) of the Prevention of Corruption Act and sections 120-B/109/201 of the Indian Penal Code. 5. 5. Mr. Bhabani Sankar Das, learned counsel for the petitioner contended that when the petitioner has been discharged by the learned Special Court vide order dated 24.02.2009, the issuance of notice by the Authorized Officer, Special Court, Bhubaneswar on 31.03.2009 for confiscation of the assets was not proper and justified. It is further pointed out that it is mentioned in the format of the notice of confiscation that assets of the petitioner are disproportionate to her known source of income and therefore, she was called upon to report about her sources of income, earning of the assets, out of which or by means of which, she had acquired such money/property. It is contended that when there is absolutely no allegation that the property of the petitioner is in any way disproportionate to her known sources of income and she has been discharged of the offences under which charge sheet was submitted against her, the issuance of such notice of confiscation reflects the non-application of mind by the learned Authorized Officer and therefore, the proceeding against the petitioner is liable to be quashed. 6. Mr. Prasanna Kumar Pani, learned Addl. Standing Counsel for the Vigilance Deptt. on the other hand submitted that there is only one format of notice of confiscation which is available in the Orissa Special Courts Rules, 2007 (hereafter 2007 Rules) i.e. Form No. II and Rule 13(2) of 2007 Rules provides that the notice to be issued under section 14 of the 2006 Act shall be in Form No. II. He further submitted that even though the petitioner was discharged by the learned Special Court on the ground that she was not in conscious possession of the contents of the briefcase but the learned Special Court has not disbelieved of the factum of seizure of the briefcase from the possession of the petitioner which according to the prosecution was handed over to the petitioner by accused Nalini Kanta Muduli. Learned counsel further pointed out that as per the application of confiscation filed by the State under section 13(1) of the 2006 Act vide Confiscation Case No. 2 of 2009, the very property which was seized from the possession of the petitioner is also the subject matter of disproportionate assets of the main accused persons and it has also been reflected in the application that such property was recovered from the possession of the petitioner. Learned counsel for the Vigilance Deptt. further emphasized that even if a person is not an accused in the case or discharged from the case, there is no bar for the Authorized Officer to issue notice of confiscation of any property or money in the possession of such person if the Court is satisfied prima facie on the application submitted under section 13(1) of the 2006 Act that such property or money was held by that person on behalf of the main accused which according to the prosecution is a part and parcel of disproportionate assets. Learned counsel further contended that no illegality has been committed by the learned Authorized Officer in issuing notice in the confiscation proceeding against the petitioner and the petitioner has already filed her show cause and participated in the proceeding and therefore, the application under section 482 of Cr.P.C. filed by the petitioner being devoid of merits, should be dismissed. 7. Considering the submissions made by the learned counsels for the respective parties and on perusal of the relevant provisions of the sections 13 & 14 of the 2006 Act, it appears that as per section 13(1) of the 2006 Act, if the State Government, on the basis of the prima facie evidence, have reasons to believe that any person, who has held any high public or political office has committed an offence then an application can be made by the Public Prosecutor being authorized by the State Govt. for confiscation of the money or other property which according to the State Govt., the concerned person has procured by means of the offence. The 'offence' as per section 2(d) of 2006 Act means an offence of criminal misconduct within the meaning of clause (e) of sub-section (1) of section 13 of the Prevention of Corruption Act, 1988. It further specifies that whether the Special Court has taken cognizance of the offence or not is not very relevant for making such application. Therefore, submission of charge sheet is not a criteria for making an application of confiscation before the Authorised Officer and such application can be made even before the submission of charge sheet provided that the prima facie evidence is collected to show that the accused has procured certain property or money by committing an offence while he was holding high public or political office. A combined reading of sub-sections (1) and (2) of section 14 of the 2006 Act indicates that the show-cause notice under 14(1) can be issued by the Authorised Officer to any person specifying as to why all or any money or property or both as being held by such person on behalf of other person shall not be declared to have been acquired by means of the offence and be confiscated to the State Government. Therefore, even if a person is not an accused as per the charge sheet submitted by the Investigating Officer, notice of confiscation can be issued against such person by the Authorized Officer if it appears prima facie that he holds any property or money on behalf of an accused against whom prima facie evidence is there to have procured such money or property by means of the offence while holding any high public or political office. Similarly if a person is discharged by the Special Court, there is no bar for the Authorized Officer to issue notice of confiscation against such person on similar ground. Thus, in my humble view, non-submission of chargesheet against a person or discharge of such person of the charge of abetment or criminal conspiracy of commission of offence under section 13(1)(e) of the Prevention of Corruption Act, 1988 by the Special Court cannot be a determinative factor for issuance/non-issuance of notice of confiscation by the Authorised Officer against such person. Possibility of a person holding money or property or both of another person without knowing the later has acquired the same by committing an offence under section 13(1)(e) of the Prevention of Corruption Act, 1988 cannot be ruled out. In such a situation, the person holding money or property or both on behalf of another may be exonerated from facing a trial if there is absence of any element of abetment or criminal conspiracy but the money or property or both which he is holding on behalf of the other can be the subject matter of confiscation and in that connection notice of confiscation can be issued against him. 8. 8. In this case, when the learned Special Court while discharging the petitioner on the ground that she was not in conscious possession of the contents of the briefcase has specifically observed that she had kept the briefcase which was handed over to her by accused N.K. Muduli and the attache was containing Rs. 4,94,209/- (rupees four lakhs ninety four thousand two hundred nine only) and money purse of the accused N.K. Muduli containing 19.35 pounds was found therein which are the subject matter of the confiscation proceeding, it cannot be said that the learned Authorized Officer has committed any illegality or impropriety or error in issuing notice of confiscation against the petitioner. 9. There is no doubt that the format of the notice of confiscation i.e. Form No. II which was issued against the petitioner contains incorrect statements that the assets of the petitioner is disproportionate to the known source of its income but on going through the application filed under section 13(1) of the 2006 Act by the State, I am of the view that merely because the format notice contains certain incorrect facts so far as the petitioner is concerned, the entire confiscation proceeding against the petitioner cannot be quashed. 10. Since the petitioner has already filed her show cause in the confiscation proceeding, as stated by the learned Addl. Standing counsel for the Vigilance Department, the learned Authorized Officer, Special Court, Bhubaneswar shall do well to adjudicate the confiscation proceeding in accordance with law as expeditiously as possible. It is made clear that this Court has not expressed any opinion on the merits of the confiscation proceeding. 11. Accordingly, the CRLMC application stands dismissed. 12. The interim order passed by this Court in Misc. Case No. 306 of 2011 vide order No. 5 dated 29.04.2011 stands vacated. 13. A free copy of the order be handed over to the learned Additional Standing Counsel for the Vigilance Department. Application Dismissed