Mallikarjun vs State of Karnataka

Rathnakala, J.—Sri R.S. Lagali, Counsel for the appellants and Sri A. Syed Habeeb, learned Special Public Prosecutor for the State present. This Court referred the matter with regard to the correctness of the interpretation of sub-section (6) of Section 5 of the Prevention of Corruption Act, 1988, in the judgment of the Single judge of this Court in H.C. Sathyan and Sowmya Sathyan Vs. The State .

By the order of the Hon''ble Chief Justice matter was referred to the Division Bench ( L.H. Hanumanthappa Vs. The State, ) and Division Bench framed the following question of law:

"Whether the judgment rendered by a learned Single Judge of this Court in H.C. Sathyan''s case, lays down the correct law?

The reference is answered by the Division Bench as below:

"(i) The interpretation of sub-section (6) of Section 5 of the Prevention of Corruption Act, 1988 made in H.C. Sathyan''s case is not correct and it is accordingly overruled.

(ii) Under sub-section (6) of Section 5 of the Prevention of Corruption Act, 1988, a Special Judge having jurisdiction to try offences punishable under the Prevention of Corruption Act, 1988 is conferred with all the powers and functions exercisable by a District Judge under the Criminal Law (Amendment) Ordinance, 1944 (Ordinance No. XXXVIII of 1944), which include the power to pass an order of attachment, forfeiture, disposal of attached property etc., in connection with the offences punishable under the Act. Exercise of the aforesaid power by a Special Judge is not restricted to the duration of trial of such offences. A Special Judge can exercise the power at all stages which include investigation, pre-trial and post-trial stages.

(iii) An application for attachment in connection with the offences punishable under the Act could be made either to the District Judge under the Ordinance or to the Special Judge under the Act as the power conferred on them is co-extensive.

Registry shall now list these appeals before the appropriate Bench for hearing."

In view of the above Sri R.S. Lagali, learned Counsel for the appellants submits that the appeals may be disposed of giving liberty to him to file objection before the Court below to the application filed by the prosecution under Sections 3 and 4 of the Criminal Law (Amendment) Ordinance, 1944 (Ordinance No. XXXVIII of 1944).

Sri A. Syed Habeeb, Special Public Prosecutor submits that since the appellants herein did not file objections to the application referred above, the Court has already passed an interim order of attachment and same may not be disturbed till the disposal of the application on its merits. In the light of the above, the appeals are disposed of. Liberty is given to the appellants to file their objection statement to the application filed by the prosecution under Sections 3 and 4 of the Criminal Law (Amendment) Ordinance, 1944 (Ordinance No. XXXVIII of 1944). In that event the learned Special Court shall consider the application on its merits and dispose of the same in accordance with law.