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2017 DIGILAW 912 (ORI)

Prafulla Chandra Samantaray v. State (GA Dept. )

2017-08-21

S.K.SAHOO

body2017
JUDGMENT : The appellant Prafulla Chandra Samantaray has filed this appeal under section 17 of the Orissa Special Courts Act, 2006 (hereafter ‘2006 Act’) challenging the impugned order dated 09.12.2016 passed by the learned Authorised Officer, Special Court, Cuttack in Confiscation Case No.6 of 2015 in rejecting the petition dated 17.10.2016 filed by the appellant for withholding the confiscation proceeding on the ground stated therein. 2. Mr. Deba Prasad Das, learned counsel for the appellant contended that the appellant is an accused in T.R. Case No.24 of 2013 which is subjudiced in the Court of learned Special Judge, Special Court (Vigilance), Cuttack for commission of offences under section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act and the confiscation proceeding has also been initiated against the appellant as well as other delinquents who are either related to the appellant or others in whose names the properties sought for confiscation are standing. It is further contended that in the year 2011, the appellant developed some neurological disorder and in that process he suffered from dementia, normal pressure hydrocephalus, parkinsonism, diabetic nephropathy (DN), hypertension (HTN), cerebrospinal fluid (CSF) and he had undergone brain surgery in Kalinga Hospital, Bhubaneswar and in the aftermath of the surgery, the delinquent has lost his memory and unable to recall any past event and presently he is under constant and regular treatment in Nilachal Hospital. It is further contended that the appellant is now aged about 82 years and due to his old age and ailments, he does not understand the nature of the proceeding, as such he is unable to impart any instruction in that respect to the other delinquents for filing show cause. 3. Learned counsel for the petitioner has drew the attention of this Court to section 318 Cr.P.C. which states about the procedure to be followed where the accused does not understand proceedings which reads as follows:- “318. Procedure where accused does not understand proceedings.-If the accused, though not of unsound mind, cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial; and, in the case of a Court other than a High Court, if such proceedings result in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as it thinks fit.” 4. Learned counsel for the appellant further contended that in view of Rule 11 of the Orissa Special Courts Rules, 2007, the provisions of the Code of Criminal Procedure, 1973 shall, in so far as they are not inconsistent with the provisions of the 2006 Act apply to the proceedings before the Authorized Officer. He further contended that since there is no contrary provision to section 318 of Cr.P.C. in 2006 Act, therefore, the applicability of section 318 of Cr.P.C. in a proceeding cannot be doubted. 5. Mr. Sanjay Kumar Das, learned Standing Counsel appearing for the Vigilance Department on the other hand submitted that most of the delinquents in the confiscation proceeding are the family members of the appellant and they can very well safeguard the interest of the appellant in the property and in that event, there is no question of prejudice to the appellant. It is further contended by the learned Standing counsel for the Vigilance Department that section 318 of Cr.P.C. shows that only when the case reaches at the stage of conviction then the proceeding shall be forwarded to the High Court with a report of the circumstances of the case, so that the High Court shall pass necessary order as it thinks fit. It is further contended that similar stage has not reached in this case and moreover chapter VI of the Mental Health Act, 1987 provides for judicial inquisition regarding alleged mentally ill person possessing property and management of his property and therefore, the petition filed by the learned counsel for the appellant has been rightly rejected by the learned Authorised Officer, Special Court, Cuttack. 6. It is not disputed that the case is now pending for hearing before the learned Authorized Officer. It cannot be lost sight of the fact that sub-section (5) of section 15 of the Orissa Special Courts Act, 2006 states that every proceeding for confiscation of money or property or both under Chapter III shall be disposed of within a period of six months from the date of service of the notice under subsection (1) of section 14. Admittedly, such period has already elapsed. Admittedly, such period has already elapsed. Since there are delinquents in the confiscation proceeding who are closely related to the appellant and they are participating in such proceeding, I am of the humble view that they can very well safeguard the interest of the appellant who is alleged to be mentally ill in the properties sought for confiscation and therefore, at this stage, no stay of the confiscation proceeding can be granted. After adducing the evidence from both the sides, if at the final stage, any application for applicability of provision section 318 of Cr.P.C. is filed before the learned Authorized Officer, Special Court, Cuttack, the same shall be considered in accordance with law. 7. With the aforesaid observation, the CRLA is disposed of. 8. Urgent certified copy of this order be granted on proper application.