Gagan Bihari Das and ors. Vs. the State - Court Judgment

Excerpt:
criminal - attachment of property - release of - sections 482 and 457(2) of code of criminal procedure, 1973 (cr.p.c.) - accused was in government service - quarter of accused was searched on allegation that he had acquired properties dis-proportionate to his known sources of income - vigilance department seized movable properties of accused - case registered for commission of offence - during pendency of case, accused expired - legal heirs of accused filed application before trial court for release of properties attached - rejected - hence, present application under section 482 of cr.p.c. - held, it is clear that trial had not been concluded and, therefore, section 452 of cr.p.c. with regard to disposal of property is not applicable and section 457(2) of cr.p.c. shall be applicable - only way to determine entitlement of present petitioners is to make enquiry as envisaged under section 457(2) of cr.p.c. - application disposed of with direction that petitioners shall establish their claim before trial court and trial court shall make enquiry on such claim - application disposed of - sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - it is, therefore, necessary to refer to the relevant provisions of the prevention of corruption act, code of criminal procedure as well as criminal law (amendment) ordinance, 1944. section 13(1)(e) of the act prescribes that a public servant is said to commit the offence of criminal misconduct if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property dis-proportionate to his known sources of income.orderl. mohapatra, j.1. the legal heirs of late somanath das who was an accused in t.r. case no. 10 of 1996 pending in the court of the learned special judge (vigilance), sambalpur have filed this application under section 482, cr.p.c. against the order dated 21-12-1994 passed by the learned special judge (vigilance) rejecting the prayer of the petitioners for release of the properties attached.2. as it appears from the record late somanath das was in government service and while posted at sohela his quarter was searched on the allegation that he had acquired properties dis-proportionate to his known sources of income. during such search, the vigilance department seized movable properties which include cash, ornaments and bank deposits. a case was registered against late somanath das for commission of offence under the prevention of corruption act which ultimately gave rise to t.r. case no. 10 of 1986 in the court of the learned special judge (vigilance), sambalpur. while the matter was pending before the learned special judge, somanath das expired on 1-12-1991. the death of the accused was brought to the notice of the court and by order dated 29-2-1992 the following order was passed by the learned special judge.29-2-92 -- the record is put up today as 27th and 28th were holiday due to municipal election. s.p. (vig.) submits a report that the accused died on 1-12-91. the case is abated against the accused.after the death of the accused, the present petitioners who are legal heirs have filed an application before the learned special judge praying for release of the properties attached in connection with the said case. by order dated 21-12-1994 learned special judge referring to the provisions of the prevention of corruptipn act and criminal law (amendment) ordinance, 1944 came to a conclusion that in such event there is no provision of law for releasing the properties seized and attached in connection with the case in favour of the legal heirs and accordingly, prayer was rejected. challenging the said order, the present-application under section 482, cr.p.c. has been filed.3. sri panda, learned counsel appearing for the petitioners submitted that the case having been registered on the allegation of accusation of dis-proportionate properties and such question having not been determined by the learned special judge due to the death of the accused, there will be no scope for confiscation of the properties and the only remedy available in such circumstances is to release the properties seized and attached in favour of legal heirs. in support of his contentions, it is submitted that there is no decision directly on the point but he referred to some decisions where offence was under the indian penal code.sri d.k. mohapatra, learned counsel appearing for the vigilance department on the other hand, submitted that since the properties were seized and attached on the allegation that the accused had acquired the same by illegal means and such properties were dis-proportionate to his known sources of income, even if the accused has died during pendency of trial, the property can only be released in favour of legal heirs of the deceased-accused after an enquiry as envisaged under section 457(2), cr. p. c.4. in course of argument, learned counsel appearing for both the parties have not been able to cite any decision directly covering the case. it is, therefore, necessary to refer to the relevant provisions of the prevention of corruption act, code of criminal procedure as well as criminal law (amendment) ordinance, 1944. section 13(1)(e) of the act prescribes that a public servant is said to commit the offence of criminal misconduct if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property dis-proportionate to his known sources of income. the explanation to the said provision prescribes that for the purposes of the said section, 'known sources of income' means income received from lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant, sub-section (2) of section 13 prescribes that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable for fine. there is no provision in the prevention of corruption act with regard to confiscation of properties which are found to be dis-proportionate. section 22 of the act provides for application of provisions contained in the code of criminal procedure, 1973 subject to certain modifications. subsection (6) of section 5 also prescribes that a special judge while trying an offence punishable under the act shall exercise all the powers and functions exercisable by a district judge under the criminal law (amendment) ordinance, 1944 (ordinance 38 of 1944). in this connection, a decision of the apex court in the case of mirza iqbal hussain v. state of u.p. reported in air 1983 sc 60 : 1983 cri lj 154 may be referred to. in the aforesaid case, the apex court held that it is clear from section 4(2), cr.p.c. that insofar as the offences under laws other than the penal code are concerned, the provisions of the code of criminal procedure apply in their full force subject to any specific or contrary provision made by the law under which the offence is investigated or tried. the prevention of corruption act being totally silent on the question of confiscation, the provisions of the code of criminal procedure apply in their in full force, with the result that the court trying an offence under the prevention of corruption act would have the power to pass an order of confiscation by reason of the provisions contained in section 452, cr.p.c. in view of the aforesaid settled position, there cannot be any dispute that with regard to disposal of property, prevention of corruption act being silent, recourse has to be taken to the provisions contained in the code of criminal procedure.5. now the question arises for consideration is whether the abetment of a proceeding due to the death of the accused will be considered as conclusion of the trial. reference may be made to a decision of the madhya bharat high court in the case of tara chand v. the state reported in air 1951 madhya bharat 154 : 1951 (52) cri lj 1476. the court in the aforesaid case observed as follows:where there has been no inquiry or trial or where the inquiry or trial has not concluded, no order regarding the disposal of the property produced in the court can be made under section 517. the word 'concluded' in section 517 means, concluded after a full hearing with a final judgment or determination of the case against the accused. when, therefore, on account of the death of the accused the trial or inquiry cannot be concluded and the magistrate for that reason does not retain the jurisdiction to give a finding or to make a final judgment on the material before him, the power of the police to make a report to the magistrate under section 513 for the disposal of the property is not taken away. in such a case the magistrate has no jurisdiction to pass any order as regards the return of the property to either party. the property must be returned to the police for disposal according to law.6. coming to the facts of the present case, it is clear that trial had not been concluded and, therefore, section 452, cr.p.c. with regard to disposal of property is not applicable and section 457(2), cr.p.c. shall be applicable. another decision of madhya pradesh high court in the case of ganeshi lal ranchhoddas mahajan v. satya narain tiwari reported in air 1958 madh pra 39 : 1958 cri lj 187 dealing with old section 523 (section 457 in the new code) observed as follows:section 523 applies to property seized by the police of their own accord as distinct from property seized under a warrant issued by court and therefore will include even cases where the property was seized by the police during investigation. therefore where the property brought into the court by the police in proceedings under section 512 was seized by the police because it was suspected to be connected with the commission of a crime, section 523 would apply to the case and the court has jurisdiction to pass an order regarding the disposal of the property.in view of the aforesaid decisions, the only way to determine the entitlement of the present petitioners is to make an enquiry as envisaged under section 457(2), cr.p.c. what is to be decided by the court in such an event has been explained by this court in the case of prabhat kumar das v. bijoy prasad das reported in (1980) 50 cut lt 415 by this court in another decision in the case of mahommed zariff v. sk. zinaullah reported in (1987) 2 orissa lr 283 : 1988 cri lj 55. the observations made by the court in both the decisions are quoted below:5. the scope of section 457 of the code of criminal procedure has been the subject-matter of judicial discussion from time to time. the law, however, is settled so far as this court is concerned by a decision of p.k. mohanti, j. (as he then was) in prabhat kumar das v. bijoy prasad das (1980) 50 cut lt 415. the law was stated in these terms:under the provisions of section 457, criminal procedure code, if the magistrate orders delivery of the property he has to deliver it to the person entitled to the possession thereof. he has to satisfy himself from the records and materials available before him that the person to whom the delivery is ordered is entitled to possession. if the materials are not sufficient, he can make an enquiry into the matter by giving opportunity to the claimants before passing the order. in doing so, the magistrate should confine himself only to find out as to who is entitled to possession of the property but not the title or ownership thereof. a person may be in unlawful possession, at the time of seizure and in that circumstance, it cannot be said that he is entitled to possession. it must be a lawful possession. the test, therefore, is not the mere possession of the property at the time of seizure, but as to who is entitled to lawful possession. the expression entitled to possession' is the sine qua non for the delivery of property under section 457, criminal procedure code.6. as it has been observed, the sine qua non for the delivery of property under section 457, is the entitlement of the person to possess. mere possession is not decisive. a person may be in unlawful possession of the property. that is not respected by the law. it has been clarified that a person may not have title or ownership of the property even then he could still be entitled to possession. this possession is not of a thief or a cheat but of a person who has right to hold it.7. on consideration of the facts of the case and law referred to above, i dispose of this application directing that the petitioners shall establish their claim before the learned special judge within two months from today by way of filing an application and required documents. if such an application with required documents are filed within the time prescribed, learned special judge shall n ake an enquiry in the manner decided by this court in the decisions referred to and quoted above and decide the entitlement of the petitioners for release of the properties under attachment.

Judgment:
ORDER

L. Mohapatra, J.

1. The legal heirs of late Somanath Das who was an accused in T.R. Case No. 10 of 1996 pending in the Court of the learned Special Judge (Vigilance), Sambalpur have filed this application under Section 482, Cr.P.C. against the order dated 21-12-1994 passed by the learned Special Judge (Vigilance) rejecting the prayer of the petitioners for release of the properties attached.

2. As it appears from the record late Somanath Das was in Government service and while posted at Sohela his quarter was searched on the allegation that he had acquired properties dis-proportionate to his known sources of income. During such search, the Vigilance Department seized movable properties which include cash, ornaments and bank deposits. A case was registered against late Somanath Das for commission of offence under the Prevention of Corruption Act which ultimately gave rise to T.R. Case No. 10 of 1986 in the Court of the learned Special Judge (Vigilance), Sambalpur. While the matter was pending before the learned Special Judge, Somanath Das expired on 1-12-1991. The death of the accused was brought to the notice of the Court and by order dated 29-2-1992 the following order was passed by the learned Special Judge.

29-2-92 -- The record is put up today as 27th and 28th were holiday due to Municipal Election. S.P. (Vig.) submits a report that the accused died on 1-12-91. The case is abated against the accused.

After the death of the accused, the present petitioners who are legal heirs have filed an application before the learned Special Judge praying for release of the properties attached in connection with the said case. By order dated 21-12-1994 learned Special Judge referring to the provisions of the Prevention of Corruptipn Act and Criminal Law (Amendment) Ordinance, 1944 came to a conclusion that in such event there is no provision of law for releasing the properties seized and attached in connection with the case in favour of the legal heirs and accordingly, prayer was rejected. Challenging the said order, the present-application under Section 482, Cr.P.C. has been filed.

3. Sri Panda, learned counsel appearing for the petitioners submitted that the case having been registered on the allegation of accusation of dis-proportionate properties and such question having not been determined by the learned Special Judge due to the death of the accused, there will be no scope for confiscation of the properties and the only remedy available in such circumstances is to release the properties seized and attached in favour of legal heirs. In support of his contentions, it is submitted that there is no decision directly on the point but he referred to some decisions where offence was under the Indian Penal Code.

Sri D.K. Mohapatra, learned counsel appearing for the Vigilance Department on the other hand, submitted that since the properties were seized and attached on the allegation that the accused had acquired the same by illegal means and such properties were dis-proportionate to his known sources of income, even if the accused has died during pendency of trial, the property can only be released in favour of legal heirs of the deceased-accused after an enquiry as envisaged under Section 457(2), Cr. P. C.

4. In course of argument, learned counsel appearing for both the parties have not been able to cite any decision directly covering the case. It is, therefore, necessary to refer to the relevant provisions of the Prevention of Corruption Act, Code of Criminal Procedure as well as Criminal Law (Amendment) Ordinance, 1944. Section 13(1)(e) of the Act prescribes that a public servant is said to commit the offence of criminal misconduct if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property dis-proportionate to his known sources of income. The explanation to the said provision prescribes that for the purposes of the said Section, 'known sources of income' means income received from lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant, Sub-section (2) of Section 13 prescribes that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable for fine. There is no provision in the Prevention of Corruption Act with regard to confiscation of properties which are found to be dis-proportionate. Section 22 of the Act provides for application of provisions contained in the Code of Criminal Procedure, 1973 subject to certain modifications. Subsection (6) of Section 5 also prescribes that a Special Judge while trying an offence punishable under the Act shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law (Amendment) Ordinance, 1944 (Ordinance 38 of 1944). In this connection, a decision of the Apex Court in the case of Mirza Iqbal Hussain v. State of U.P. reported in AIR 1983 SC 60 : 1983 Cri LJ 154 may be referred to. In the aforesaid case, the Apex Court held that it is clear from Section 4(2), Cr.P.C. that insofar as the offences under laws other than the Penal Code are concerned, the provisions of the Code of Criminal Procedure apply in their full force subject to any specific or contrary provision made by the law under which the offence is investigated or tried. The Prevention of Corruption Act being totally silent on the question of confiscation, the provisions of the Code of Criminal Procedure apply in their in full force, with the result that the Court trying an offence under the Prevention of Corruption Act would have the power to pass an order of confiscation by reason of the provisions contained in Section 452, Cr.P.C. In view of the aforesaid settled position, there cannot be any dispute that with regard to disposal of property, Prevention of Corruption Act being silent, recourse has to be taken to the provisions contained in the Code of Criminal Procedure.

5. Now the question arises for consideration is whether the abetment of a proceeding due to the death of the accused will be considered as conclusion of the trial. Reference may be made to a decision of the Madhya Bharat High Court in the case of Tara Chand v. The State reported in AIR 1951 Madhya Bharat 154 : 1951 (52) Cri LJ 1476. The Court in the aforesaid case observed as follows:

Where there has been no inquiry or trial or where the inquiry or trial has not concluded, no order regarding the disposal of the property produced in the Court can be made under Section 517. The word 'concluded' in Section 517 means, concluded after a full hearing with a final judgment or determination of the case against the accused. When, therefore, on account of the death of the accused the trial or inquiry cannot be concluded and the Magistrate for that reason does not retain the jurisdiction to give a finding or to make a final judgment on the material before him, the power of the police to make a report to the Magistrate under Section 513 for the disposal of the property is not taken away. In such a case the Magistrate has no jurisdiction to pass any order as regards the return of the property to either party. The property must be returned to the police for disposal according to law.

6. Coming to the facts of the present case, it is clear that trial had not been concluded and, therefore, Section 452, Cr.P.C. with regard to disposal of property is not applicable and Section 457(2), Cr.P.C. shall be applicable. Another decision of Madhya Pradesh High Court in the case of Ganeshi Lal Ranchhoddas Mahajan v. Satya Narain Tiwari reported in AIR 1958 Madh Pra 39 : 1958 Cri LJ 187 dealing with old Section 523 (Section 457 in the new Code) observed as follows:

Section 523 applies to property seized by the police of their own accord as distinct from property seized under a warrant issued by Court and therefore will include even cases where the property was seized by the police during investigation. Therefore where the property brought into the Court by the police in proceedings under Section 512 was seized by the police because it was suspected to be connected with the commission of a crime, Section 523 would apply to the case and the Court has jurisdiction to pass an order regarding the disposal of the property.

In view of the aforesaid decisions, the only way to determine the entitlement of the present petitioners is to make an enquiry as envisaged under Section 457(2), Cr.P.C. what is to be decided by the Court in such an event has been explained by this Court in the case of Prabhat Kumar Das v. Bijoy Prasad Das reported in (1980) 50 Cut LT 415 by this Court in another decision in the case of Mahommed Zariff v. Sk. Zinaullah reported in (1987) 2 Orissa LR 283 : 1988 Cri LJ 55. The observations made by the Court in both the decisions are quoted below:

5. The scope of Section 457 of the Code of Criminal Procedure has been the subject-matter of judicial discussion from time to time. The Law, however, is settled so far as this Court is concerned by a decision of P.K. Mohanti, J. (as he then was) in Prabhat Kumar Das v. Bijoy Prasad Das (1980) 50 Cut LT 415. The Law was stated in these terms:

Under the provisions of Section 457, Criminal Procedure Code, if the Magistrate orders delivery of the property he has to deliver it to the person entitled to the possession thereof. He has to satisfy himself from the records and materials available before him that the person to whom the delivery is ordered is entitled to possession. If the materials are not sufficient, he can make an enquiry into the matter by giving opportunity to the claimants before passing the order. In doing so, the Magistrate should confine himself only to find out as to who is entitled to possession of the property but not the title or ownership thereof. A person may be in unlawful possession, at the time of seizure and in that circumstance, it cannot be said that he is entitled to possession. It must be a lawful possession. The test, therefore, is not the mere possession of the property at the time of seizure, but as to who is entitled to lawful possession. The expression entitled to possession' is the sine qua non for the delivery of property Under Section 457, Criminal Procedure Code.

6. As it has been observed, the sine qua non for the delivery of property under Section 457, is the entitlement of the person to possess. Mere possession is not decisive. A person may be in unlawful possession of the property. That is not respected by the Law. It has been clarified that a person may not have title or ownership of the property even then he could still be entitled to possession. This possession is not of a thief or a cheat but of a person who has right to hold it.

7. On consideration of the facts of the case and Law referred to above, I dispose of this application directing that the petitioners shall establish their claim before the learned Special Judge within two months from today by way of filing an application and required documents. If such an application with required documents are filed within the time prescribed, learned Special Judge shall n ake an enquiry in the manner decided by this Court in the decisions referred to and quoted above and decide the entitlement of the petitioners for release of the properties under attachment.