Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 283 (ORI)

Bhanumati Das @ Devi v. State of Odisha

2017-03-16

BISWANATH RATH

body2017
JUDGMENT BISWANATH RATH, J. - This is a proceeding under Section 115 of the Code of Civil Procedure read with Criminal Law ( Amendment Acts/Ordinances, 1944 and Section 29 of the Prevention of Corruption Act, 1988 challenging an order passed by the District & Sessions Judge, Dhenkanal involving Crl. Misc.Case No.2 of 2010 and rejecting an application at the instance of the present petitioner, further also challenging the maintainability of an application at the instance of State Vigilance Department under Section 3 of the Criminal Law (Amendment) Acts/Ordinances, 1944 requesting therein for attachment of the schedule properties indicated therein arising out of Sambalpur Vigilance P.S. Case No.51 dated 29.11.1999 (T.R. Case No.226 of 2007) pending in the Court of Special Judge (Vigilance), Cuttack along with an ad interim order of attachment following Section 4 of the Criminal Law (Amendment)l Acts/Ordinances, 1944. 2. Short background involved in the case is that Sambalpur Vigilance P.S. Case No.51 of 1999 was registered under Section 12 (2) read with 13 (i) (e) of the Prevention of Corruption Act, 1988 against the petitioner’s husband being a public servant, employed in the Office of the Dhenkanal Collectorate under the Revenue Department on the allegation that he was in possession of assets disproportionate to his known sources of income and that he had acquired property in the names of his family members. One Sri B.C. Dash, the then Inspector Vigilance, Angul Unit Office was directed to investigate into the said F.I.R. and has claimed that Sri B.C. Dash, Investigating Officer involving the case for all purposes. During pendency of the trial of the above Vigilance P.S. Case, the Director-cum-D.G. & I.G. of Police, Vigilance & Ex-officio Special Secretary to Govt. General Administration (Vigilance) Department, Orissa, Cuttack moved an application before the State Government seeking approval to take recourse under Section 3 of the Criminal Law (Amendment) Acts/Ordinances, 1944 in respect of certain property which the petitioner claimed to be recorded owner and in possession vide his letter dated 3.3.2010. Considering the application, State Government in General Administration (Vigilance) Department acceding to the request accorded the necessary authorization by order of the Governor of Orissa dated 17.3.2010 specifically authorizing the Investigating Officer of the aforesaid case to make an application/affidavit, verify/sign before the appropriate Court for attachment of the said properties. 3. Referring to the application under Section 3 of the Criminal Law (Amendment) Acts/Ordinances, 1944 involving Cri. 3. Referring to the application under Section 3 of the Criminal Law (Amendment) Acts/Ordinances, 1944 involving Cri. Misc Case No.2 of 2010 arising out of Sambalpur Vigilance P.S. Case No.51 of 1999. Sri Debasis Panda, learned Senior Counsel appearing for the petitioner contended that for the provisions contained in Section 3 and 4 of the Criminal Law (Amendment) Acts/Ordinances, 1944 and for the request of the concerned authority and the grant of permission of the competent authority specifically authorizing the Investigating Officer of the aforesaid case to make an application etc., to a Court of the local limits whose jurisdiction the petitioner resides for attachment of the scheduled properties, the application under Section 3 and 4 appearing at Annexure-4 ought to have been filed by the Investigating Officer itself and for the application at Annexure-4 being filed by Sri Sheshadev Nayak working at the filing point of time as Inspector of Police (Vigilance), Dhenkanal, the application laws not sustainable in the eye of law. Referring to the contents of the documents vide Annexure-3 and 4 and a decision of this Court reported in the case of Khetrabasi Das v. State, 1991 (II) OLR 136, Sri Panda, learned Senior Counsel contended that the learned District & Sessions Judge has failed to appreciate the legal aspect of the matter thereby wrongly rejected the objection of the petitioner with regard to maintainability of the petition at the instance of Sri Sheshadev Nayak and urged this Court for interfering the impugned order and stating aside the same. 4. Sri Sanjay Kumar Das, learned Standing Counsel (Vigilance) Department while objecting the contentions raised by Sri Panda on the other hand referring to the provisions under Section 3 (3) and 4 of the Criminal Law (Amendment) Acts/Ordinances, 1944 as well as the provision contained in Order 27, Rule 2 of the Code of Civil Procedure submitted that the contentions raised by Sri Panda does not get the support of the legal provisions. Sri Dash, learned Standing Counsel (Vigilance) Department further contended that by the time of the application was moved the Investigating Officer, namely, Sri B.C. Dash was not continuing in the Vigilance Unit in the particular district and further for the provisions contained in proviso 4 (3) of the Act and for the said Sheshadev Nayak being appointed as the holding Investigating Officer in relation to the Vigilance Case was not only authorized but was also competent to file an application under challenge by the petitioner in the Court below. Under the above circumstances Sri Das learned Standing Counsel (Vigilance) Department contended that the learned District & Sessions Judge, Dhenkanal having considered the above legal aspect of the matter did no wrong in passing the impugned order leaving no scope for interfering in the same and as such claimed for dismissal of the Civil Revision Proceeding. 5. Considering the rival contention of the parties, this Court finds the very question that arises for consideration in this revision is as to whether when an application is made under Section 3 and 4 of the Criminal Law (Amendment) Acts/Ordinances, 1944 for attachment of the property of a person facing a vigilance case, the person making the application must be the Investigating Officer being authorized by the competent authority to sign and verify the application or not ? 6. Before proceeding to decide the question, it is first necessary here to refer to the provision, relevant, for the purpose and as has been referred to by the Counsel appearing for both the sides. Section 3 (1) (2) and Section 4 of the Criminal Law (Amendment) Acts/Ordinances, 1944 reads as follows : “3. 6. Before proceeding to decide the question, it is first necessary here to refer to the provision, relevant, for the purpose and as has been referred to by the Counsel appearing for both the sides. Section 3 (1) (2) and Section 4 of the Criminal Law (Amendment) Acts/Ordinances, 1944 reads as follows : “3. Application for attachment of property - (1) Where the (State Government or, as the case may be, the Central Government has reason to believe that any person has committed (whether after the commencement of this Ordinance or not) any scheduled offence, the (State Government or, as the case may be, the Central Government) may, whether or not any Court has taken cognizance of the offence, authorise the making of an application to the District Judge within the local limits of whose jurisdiction the said person ordinarily resides or carries on business, for the attachment, under this Ordinance of the money or other property which the (State Government or, as the case may be, the Central Government) believes the said person to have procured by means of the offence, or if such money or property cannot for any reason be attached, or other property of the said person of value as nearly as may be equivalent to that of the aforesaid money or other property. (2) The provisions of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), shall apply to proceedings for an order of attachment under this Ordinance as they apply to suits by the Government. 4. Ad interim attachment – (1) Upon receipt of an application under Section 3 the district Judge shall, unless for reasons to be recorded in writing he is of the opinion that there exists no prima facie grounds for believe that the person in respect of whom the application is made has committed any scheduled offence or that he has procured thereby any money or other property, pass without delay an ad interim order attaching the money or other property alleged to have been so procured, or if it transpires that such money or other property is not available for attachment, such other property of the said person of equivalent value as the District Judge may think fit. Provided that the District Judge may if he thinks fit before passing such order, and shall before refusing to pass such order, examine the person or persons making the affidavit accompanying the application.” (2) At the same time as he passes an order under sub-section (1), the District Judge shall issue to the person whose money or other property is being attached, a notice, accompanied by copies of the order, the application and affidavits and of the evidence, if any, recorded, calling upon him to show cause on a date to be specified in the notice why the order of attachment should not be made absolute. (3) The District Judge shall also issue, accompanied by copies of the documents accompanying the notice under sub-section (2), to all persons represented to him as having or being likely to claim, any interest or title in the property of the person to whom notice is issued under the said sub-section calling upon each such person to appear on the same date as specified in the notice under the said sub-section and make objection if he so desires to the attachment of the property or any portion thereof on the ground that he has an interest in such property or portion thereof. (4) Any person claiming an interest in the attached property or any portion thereof may, notwithstanding that no notice has been served upon him under this section, make an objection as aforesaid to the District Judge at any time before an order is passed under sub-section (1) or sub-section (3) as the case may be of Section 5. Reading of the provisions quoted hereinabove, this Court finds following the provision contained in Section 3 (1), the mandate of the provision is where the State Government, as the case may be, the Central Government believes the said person to have been procured by means of the offence, or if such money or property cannot for any reason be attached, or other property of the said person of value as early as may be equivalent to that of the aforesaid money or other property authorises the making of an application to the District Judge within the local limits of whose jurisdiction the said person ordinarily resides or carries an business for the attachment under the of the money or other propriety and that too by a person so authorised by the Competent Authority. 7. 7. Now coming to consider the provision contained under Order 27, Rule 1 of the Code of Civil Procedure the issue involved taking into consideration to this Court finds Order 27, Rule 2 of the Code of Civil Procedure is relevant have very relevant and reads as follows : Order 27, Rule 2 of the Code of Civil Procedure : “2. Persons authorized to act for Government – Persons being ex officio or otherwise authorized to act for the Government in respect of any judicial proceeding shall be deemed to be the recognized agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government.” Looking to the documents filed along with this revision, this Court finds during the pendency of the Vigilance P.S. Case No.51 of 1999, at the first hand, as required under the Ordinance 1944, an authorization was sought for from the Government for according approval authorizing the Investigating Officer of the Vigilance Case to file an application under Section 3 of the Criminal Law (Amendment) Acts/Ordinances, 1944 as clearly appearing at page 43 of the brief. As a consequence of the above request, Government of Orissa in exercise of power conferred by Section 3 of the Criminal Law ( Amendment) Acts/Ordinances, 1944 gave authorization as appearing at page 45 of the brief in the following manner: ‘ Now therefore, the State Government of Orissa in exercise of powers conferred by Section 3 of the Criminal Law Amendment Ordinance, 1944 (Ordinance No.38 of 1944, read with Section 29 of the Prevention of Corruption Act do hereby authorize the Investigating Officer of the aforesaid case to make an application/affidavit, verify sign before the Appropriate Court within the local limits of whose jurisdiction. Sri Pradhan ordinarily resides for attachment of the said properties which is within the amount of disproportionate assets found in possession of said Sri Sudhakar Pradhan @ Das. Above communication clearly indicates the required authorization has been granted in favour of the Investigating Officer of the Sambalpur Vigilance P.S. Case No.51 of 1999 to make the application/affidavit, verify/sign before the appropriate Court for attachment of the properties mentioned therein. Above communication clearly indicates the required authorization has been granted in favour of the Investigating Officer of the Sambalpur Vigilance P.S. Case No.51 of 1999 to make the application/affidavit, verify/sign before the appropriate Court for attachment of the properties mentioned therein. Looking to the provision quoted hereinabove and the grant of authorization vide Annexure-3/1, further for the admitted position that Sri B.C. Dash is the Investigating Officer involving the aforesaid vigilance case and more particularly an authorization vide Annexure-3 was also sought for authority the Investigating Officer of the particular case for filing the appropriate application thus there remains no doubt that it is only Sri B.C. Dash has the competency to file an application under Section 3 of the Criminal Law (Amendment) Acts/Ordinances, 1944, which is also in conformity with Order 27 Rule 2 of the Code of Civil Procedure. Once the authorization is granted in favour of the Investigating Officer involving the particular case, there was no scope for making the holding Investigating Officer, who is authorized as a temporary measure to assist in the case, has no authority to file any such application. This Court also makes it clear that there is no concept called holding Investigating Officer under either the C.R.P.C. or the Criminal Law Amendment Act for which the contention of the Vigilance Counsel has no leg to stand. Since the provision clearly indicates there must be an authorization and further since the authorization was granted by the competent authority in favour of the particular Investigating Officer, this Court observes the application filed by Sheshdev Nayak was wholly incompetent. This Court while finding submission of Sri Panda, learned senior Counsel has force, observes that there is no substance in the submission of Sri Das, leaned Standing Counsel, Vigilance. 8. Considering the decision cited at Bar in the case of Khetrabasi Das v. State, 1991 (II) OLR 136, this Court finds the issue involved in the aforesaid decision is also the issue involved herein in the case at hand. Delivering the judgment, a single Bench of this Court answering the particular question involved herein in his categoric terms came to hold there being no authorization in favour of a person other than the Investigating Officer involved in the Vigilance P.S. Case, the application filed by the another person was incompetent. The decision rendered by this Court referred hereinabove squarely applies to the present case. 9. The decision rendered by this Court referred hereinabove squarely applies to the present case. 9. Under the circumstances and for the position of law, discussed hereinabove, this Court finds the application vide Annexure-4 having not been presented by the person being authorized, the application remain not maintainable. Learned District & Sessions Judge having failed to appreciate the aforesaid legal aspect, the impugned order so far it relates to rejection of the petitioner’s challenge with regard to the maintainability of the petition under Section 3 of the Criminal Law (Amendment) Acts/Ordinances, 1944, is bad in law and the same is set aside. Allowing the Civil Revision Petition however will not stand as a bar on the part of the Vigilance Authority to file a fresh application by the competent person, in the event any such Application is filed the same shall be considered in accordance with law. 10. In the result, the Civil revision stands allowed. No order as to cost. Revision allowed.