Judgment:
A.K. Shrivastava, J.
1. The order passed in this appeal shall also govern the disposal of Criminal Appeal No. 2110/1997 (Smt. Vandana Brahamankar v. Special Police Establishment) and Criminal Appeal No. 2183/1997 (Shivkumar Gupta and Anr. v. The State of M.P. and Anr.) as they have also arisen from the same impugned order dated 2-9-1997, which is impugned in this appeal.
2. Feeling aggrieved by the order dated 2-9-1997 passed by First Addl. Special Judge (Lokayukta) in Criminal Miscellaneous Case No. 5/1997, this appeal has been filed under Section 11 of Criminal Law Amendment Ordinance, 1944 (in short 'the Ordinance').
3. The facts leading to this appeal lie in narrow compass. Suffice it to state that during the pendency of the investigation of a case against the present appellant under Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act, 1988 (in short 'the Act'), an application under Section 3 of the Ordinance was submitted by Dy. Superintendent of Police, Special Police Establishment, Lokayukta, Jabalpur before the Special Judge who has passed the impugned order praying therein that the immovable property of appellant V.K. Brahamankar be attached under the interim arrangement. On the submission of the said application dated 5-4-1997, an order under Section 4 of the Ordinance attaching the property under interim arrangement was passed by the Special Judge, Jabalpur. Thereafter, a notice was issued to the appellant to show cause under Section 4 of the Ordinance.
4. In pursuance to the notice issued to him under Section 4 of the said Ordinance, appellant submitted reply on 22-4-1997 as this finds place in the order-sheet dated 22-4-1997 of the Special Court. Thereafter, on 17-7-1997 the Principal Secretary, Department of Energy authorized Superintendent of Police Lokayukta authorizing him to file application for attachment of the immovable property of appellant though it was already filed earlier to this date as the same was filed on 5-4-1997 by Dy. Superintendent of Police, Lokayukta.
5. On going through the order-sheet of the Special Court, this Court finds that against the show cause present appellant V.K. Brahamankar as well as his wife Smt. Vandana Brahamankar who is appellant in Criminal Appeal No. 2110/1997, filed reply.
6. On 29-4-1997 Shiv Kumar Gupta and Smt. Shakuntala Gupta who are the appellants of Criminal Appeal No. 2183/1997 filed objections under Section 4 (4) of the said Ordinance that they bought the property mentioned in their objection from V.K. Brahamankar on 8-1-1996.
7. The learned Special Judge by the impugned order rejected the objections I.A. No. 6 of Shiv Kumar Gupta and Smt. Shakuntala Gupta of Criminal Appeal No. 2183/1997 and kept the objections of V.K. Brahamankar and Smt. Vandana Brahamankar pending holding that they will be decided after recording the evidence. Hence this appeal has been filed.
8. The contention of Ku. Namrata Kesharwani, learned Counsel for the appellant is that in order to attach the property under the said Ordinance pre-requisite conditions embodied in Section 3 of the Ordinance should have been complied with and if any of the condition has not been fulfilled, the application is premature and is not maintainable.
9. Further it has been submitted by her that on receiving an application under Section 3 of the Ordinance to attach the immovable property by interim measure a complete procedure has been given under Sections 3 and 4 of the said Ordinance and if that would be the position since the said procedure has not been followed, the order impugned is palpably without jurisdiction. In her usual vehemence, she has also submitted that since on the date of the filing of the application for attachment there was no authorization, therefore the application was not maintainable. Apart from this it has been submitted by her that during the pendency of the proceedings, the order of authorization was passed on 17-7-1997 by Principal Secretary, Department of Energy and Superintendent of Police (Lokayukta), Special Establishment was authorized to file an application but the application was filed by Dy. Superintendent of Police, Special Police Establishment. The contention of learned Counsel is that there is no sub-delegation power under the Ordinance and therefore, for this additional reason also the application is not maintainable.
10. By pressing the appeal No. 2110/1997 filed on behalf of Smt. Vandana Brahamankar, it is been argued by learned Counsel that in the application for attachment of the property of Smt. Vandana Brahamankar has been mentioned and a prayer has been made that the said property be attached but Smt. Vandana Brahamankar has not been made party to the proceedings, therefore, without impleading her as party and making a specific prayer no order can be passed. On these premised submission it has been argued by learned Counsel that these two appeal be allowed by setting aside the impugned order.
11. By inviting my attention to the provisions of Sections 3, 4 and 5 of the said Ordinance, it has been argued by learned Counsel for the appellant that the District Judge is the only authority before whom such an application would lie and upon which he can pass the order and the Special Judge constituted under the Act has no jurisdiction to decide such application. By inviting my attention to Section 5(6) of the Act it has been argued that the powers exercisable by the District Judge under the Ordinance can be exercised by the Special Judge under the Act only while trying the offence punishable under the Act and not otherwise and if that is the position the entire exercise which has been done by the Special Judge is futile exercise.
12. Shri R.K. Verma, learned Counsel by pressing Criminal Appeal No. 2183/1997 has submitted that appellants Shivkumar Gupta and Smt. Shakuntala Gupta bought the property under the attachment from V.K. Brahamankar and therefore, these two appellants filed objections under Section 4 of the said Ordinance. The contention of Shri Verma is that if such objections are filed under Section 4 of the said Ordinance the procedure contemplated under Section 5 ought to have been complied with and since this has not been done the impugned order cannot be allowed to remain stand.
13. On the other hand Shri Aseem Dixit, learned Public Prosecutor argued in support of the impugned judgment and has submitted that the immovable property under the attachment should remain intact and the same may not be alienated in order to create interest of third party, therefore, the application was rightly submitted by the prosecution and the same has been rightly decided by the impugned order.
14. Having heard learned Counsel for the parties, I am of the view that these three appeals deserve to be allowed.
15. The moot question is whether the Special Judge constituted under the Act was having any power to pass any order under the Ordinance. On going through Sections 3,4 and 5 of the Ordinance of 1944 everywhere this Court finds that in all these three Sections the term 'District Judge' has been used and nowhere the 'Special Judge' constituted under the Act of 1988 has been empowered to entertain the application to pass interim or final attachment order under Sections 4 and 5 of the Ordinance.
16. Thus, according to me, the applications filed by respondent I. A. Nos. 3 and 4 before the Special Judge constituted under the Act of 1988 were not maintainable and the impugned order which has been passed on the applications which in itself were not maintainable is coram non judice. To me, the Special Judge constituted under the Act of 1988 is empowered with the powers of District Judge under the Ordinance of 1944 only when the said Court is trying the offence punishable under the Act. Admittedly, when the impugned order was passed, no charge-sheet was filed and the case was not being tried by the Special Judge under the Act. Hence, the impugned order is without jurisdiction.
17. Since the impugned order is without jurisdiction and the same is being set aside on that ground alone, the other objections raised by the learned Counsel for the appellants are not being dealt with.
18. Resultantly, the above said three appeals are hereby allowed. The impugned order passed by learned Special Judge, being without jurisdiction, is hereby set aside and the proceeding before the Special Judge in respect to the interim and final attachment of the immovable property, is hereby dropped and the property is released from the attachment.