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2025 DIGILAW 778 (KER)

Bijumon P. N. , S/o Narayanan v. State Of Kerala

2025-03-28

P.G.AJITHKUMAR

body2025
ORDER : P.G. AJITHKUMAR, J. The petitioner is the accused in VC-02/2024/SCE of the Vigilance and Anti-Corruption Bureau, Special Cell, Ernakulam. The crime was registered alleging offences punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act) and Section 13(1)(b) read with Section 13(2) of the PC Act (amended). Among the properties seized from the possession of the petitioner during investigation, there are fixed deposit receipts for a total amount of Rs.12,29,500/-. The petitioner filed Crl.M.P. No.1300 of 2024 before the Special Court seeking to release the said fixed deposit receipts on interim custody stating that the money was required for educational purposes of his son. The Special Court as per the order dated 02.11.2024 (Annexure A7) dismissed that petition. Challenging that order, this Crl.M.C. has been filed invoking the provisions under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023. 2. A report of the investigating officer is placed on record by the learned Special Public Prosecutor along with memo dated 22.03.2025. 3. Heard the learned counsel for the petitioner and the learned Special Public Prosecutor (Vigilance). 4. Paragraph No.7 of the impugned order reads as follows: “7. The allegation against the petitioner/accused, who is a public servant, is that he has amassed assets disproportionate to the known sources of his income during the check period. It is contended that the fixed deposits receipts and other bank documents pertain to the amounts deposited by the petitioner which he acquired during the check period and he has not disclosed his source of income for the same. The investigation is in the preliminary stage and if it is ultimately found that the petitioner has amassed disproportionate assets during the check period it would be liable for forfeiture. It is also submitted by the investigating officer that the property now offered as security is also acquired during the check period and it is intended to initiate attachment proceedings against the same. In the said circumstances, it is found that at this stage the petitioner is not entitled for release of the fixed deposit receipts and other security documents as prayed for.” 5. In the said circumstances, it is found that at this stage the petitioner is not entitled for release of the fixed deposit receipts and other security documents as prayed for.” 5. The order reflects that the request of the petitioner was declined essentially for the reason that the property offered as security was also acquired during the check period liable for forfeiture and the same could not be accepted as security for releasing the fixed deposit receipts. Thus, the view taken by the Special Court is that the fixed deposit receipts were liable to be returned provided, sufficient security was furnished. 6. The purpose of retaining the tainted properties is to attach and forfeit the same in the event of a conviction of the petitioner. Section 3 of the Criminal Law Amendment Ordinance, 1944 read with Section 18A of the PC Act enables such attachment. Section 3 of the Criminal Law Amendment Ordinance reads: “ 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 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, of 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, shall apply to proceedings for an order of attachment under this Ordinance as they apply to suits by the Government. (3) An application under sub-section (1) shall be accompanied by one or more affidavits, stating the grounds on which the belief that the said person has committed any scheduled offence is founded, and the amount of money or value of other property believed to have been procured by means of the offence. (3) An application under sub-section (1) shall be accompanied by one or more affidavits, stating the grounds on which the belief that the said person has committed any scheduled offence is founded, and the amount of money or value of other property believed to have been procured by means of the offence. The application shall also furnish- (a) any information available as to the location for the time being of any such money or other property and shall, if necessary, give particulars, including the estimated value, of other property of the said person; (b) the names and addresses of any other persons believed to have or to be likely to claim, any interest or title in the property of the said person.” 7. Section 8 of the Criminal Law Amendment Ordinance says that the District Judge may refrain from ordering attachment if sufficient security in lieu of the property in question is offered by the accused. Section 8 of the Criminal Law Amendment Ordinance reads: “ 8. Security in lieu of attachment:- Any person whose property has been or is about to be attached under this Ordinance may at any time apply to the District Judge to be permitted to give security in lieu of such attachment and where the security offered and given is in the opinion of the District Judge satisfactory and sufficient, he may withdraw or, as the case may be, refrain from passing, the order of attachment.” 8. The learned counsel for the petitioner would submit that even as per the case of the respondent, the property covered by settlement deed No.1043 of 2010 was acquired not during the check period. The said property was obtained by the petitioner not for any consideration, but from his father by way of a gift. When Section 3 of the Criminal Law Amendment Ordinance says that the money or other property that the accused had procured by means of the offence is liable for attachment, there can be no impediment for accepting the property obtained by the accused non-gratuitously as security. Here, the property covered by settlement deed No.1043 of 2010 was obtained by the petitioner not during the check period even. Here, the property covered by settlement deed No.1043 of 2010 was obtained by the petitioner not during the check period even. In such circumstances, I am of the view that there can be no prohibition for accepting the property covered by settlement deed No.1043 of 2010 as security for releasing the fixed deposit receipts, provided, the said properties is worth enough to secure the amount of fixed deposits. The learned Special Public Prosecutor points out that a building was constructed on the said property, regarding which the respondent has a contention that the construction was made using ill gotten money. If so, the building may be liable for forfeiture. Therefore, it is made clear that acceptance of the property covered by settlement deed No.1043 of 2010 as security will not be a bar for proceeding against the building by the respondent in accordance with law. In the circumstances, the impugned order is varied. The Special Court will release the fixed deposit receipts on accepting the property covered by settlement deed No.1043 of 2010 of SRO, Kidangoor (Annexure A2), provided, the Special Court satisfies itself that the said property is worth enough to secure the amount covered by the fixed deposit receipts. The Crl.M.C. is disposed of accordingly.