Om Prakash Singh vs The State of Bihar

Instant appeal under Section 17 of the BSC Act, 2009

has been filed by the appellants against judgment and order dated

12.01.2015 passed by Authorised Officer, Special Court Vigilance

No.1, Muzaffarpur in Confiscation Case No. 04/2012 under Section

15 of the BSC Act, 2009 declaring the assets moveable as well as

immovable appertaining to Rs. 1,19,66,063/- shown under para-(F)

and (H) of the application filed under Section 13 of the Bihar Special

Courts Act 2009, be confiscated to the State Government free from all

encumbrance directing the District Magistrate, Patna to take

possession thereof, and in likewise manner appellants/OPs were

directed to surrender/deliver possession of these properties within 30

days of service of the order impugned.

Appellant No.1/O.P. while being prosecuted under

Vigilance PS Case No. 71/2009 (Special Case No. 51/2009) under the

garb of Section 13(E) of the Prevention of Corruption Act, 1988 was

found in possession of huge amount of moveable as well as

immovable properties disproportionate to his income having acquired

in different names of his family members during course of conduction

of raid and accordingly, prayer was made at the end of the State in

terms of Section 13 of the Bihar Special Courts Act, 2009 for

confiscation of the properties and accordingly, arrayed all the family

members including that of Om Prakash Singh as an Opposite Party

and were, accordingly noticed. After their appearance on different

dates having written statement at their end, the matter has finally

concluded by the judgment and order impugned whereupon the instant

appeal has been filed.

Learned counsel for the appellants made elaborate

submissions while assailing the judgment and order impugned and

during course thereof, encircled his submission relating to non

compliance of Rule-11 (P) of the Bihar Special Courts Rules and in

order to substantiate the same, it has been submitted that even having

challenged by way of specific averments under para-17 of the written

statement regarding the valuation having estimated at the end of the

Vigilance, in partial manner and in the aforesaid background, asked

for revaluation by a competent, qualified agency, consequent

thereupon, it was obligatory on the part of the court to act in terms

thereof, and should have procured proper valuation of the assets

before it from competent agency. Non appreciation of the aforesaid

legal right having available to the appellants, virtually, speaks over

denial of statutory right more particularly, the natural right and on

account thereof, the order impugned is fit to be set aside. To

substantiate the same, learned counsel of the appellants relied upon

2014(2) PLJR 648 ( Srikant Prasad v. State of Bihar through

Vigilance).

Learned counsel for the appellants also assailed the

judgment/order impugned over non appreciation of the status of other

appellants who, in their individual capacity, were quite competent to

acquire the properties standing in their respective names which they

duly explained by way of placing proper explanation supported by

relevant documents and so, would have exonerated the same.

Furthermore, the theme of HUF (Hindu Undivided Family) has also

not been properly considered, although, there happens to be sufficient

material on the record to justify the same. Consequent thereupon, the

judgment/order impugned suggests non application of judicial mind as

well as over looking the pleadings, evidence whereupon, the order

impugned would not survive.

Learned Special P.P. representing the Vigilance

controverted the submissions and submitted that the instant appeal

happens to be non maintainable in the background of lapses having at

the end of the appellants themselves whereunder the pleadings having

been filed at their end is found non entertainable in the eye of law on

account of having been filed before the learned lower court in

contravention of Section 14 as well as in terms of Rule 11 of the Bihar

Special Courts Rules 2010. Hence, instant appeal is fit to be

summarily dismissed.

At an initial stage, the validity of the Act was challenged

in the case of Sanjay Kumar v. The State of Bihar as reported in

2011 (1) PLJR 1168 whereunder negativating the plea of the

petitioners, vires of the Act was upheld. Furthermore, the matter

sailed up to the Hon''ble Apex Court in the case of Yogendra Kumar

Jaiswal v. State of Bihar as reported in AIR 2016 SC 1474 wherein

also validity of the Act has been upheld save and except nullifying

identity of Rule-12 declassing the same as ultra vires on account of

prescription of conflicting procedure to be followed during course of

going with the proceeding as prescribed under Section 8 of the Act.

That being so, the mandate of law prescribing proper mode of

procedure to be followed while proceeding with the trial is to be

carried out in similar fashion. It is needless to remind that effect of

Special Law will overlap over general Law. Furthermore, Section 4, 5

of the Cr.P.C. also abrade the same. That being so, Bihar Special

Court Act as well as Rules, laying down the procedure for conduction

of proceeding is to be followed in strict sense.

As per Section 14 of the Special Courts Act, it is evident

that as soon as application in terms of Section 13 is filed before the

Authorised Officer, the person against whom that application has been

filed (O.P.) is to be noticed calling upon him within such time as may

be specified in the notice, which should not be ordinarily more than

30 days to respond explaining sources of his income, earning, asset

and further the source for such acquisition by way of written

statement. The aforesaid eventuality is found further magnified under

Rule-11 of the Special Courts Rules, 2010. For better appreciation the

same is quoted below:-

"11. Authorised Officer to follow summary procedure.--(a) On receipt of application under Section 13 read with Rule 14 the authorized officer shall immediately issue notice to the delinquent public servant. (b) If the delinquent public servant responds to the notice and appears before the authorized officer either in person or through his legal representative, he shall be furnished with the copy of the application filed under Section 13 along with all its enclosures. The authorized officer shall allow 30 days time for appearance of delinquent public servant to file his statement in defence. If for good and valid reasons, to the satisfaction of the authorized officer, delinquent public servant does not file his statement of defence, he may allow maximum of 15 days time within which he shall have to file his statement of defence. (c) If the delinquent public servant does not file his statement of defence within the prescribed period of 30 days or within extended period of 15 days, it shall be presumed that he has no defence to put forward. The authorized officer shall be free to adjudicate the proceeding instituted before him. (d) If the delinquent public servant submits his statement in defence, a copy of the same shall be made available to the special Public Prosecutor conducting the proceeding before the authorized officer who shall have the opportunity to reply to the same. (e) The Special Public Prosecutor shall have to reply within maximum period of 15 days from service of statement of defence upon him. (f) If the Special Public Prosecutor fails to submit his reply within 15 days, the authorized officer may for good or valid reason allow further period of 15 days for filing the reply, failing which the authorized officer shall proceed to adjudicate the proceeding as if the prosecution has no reply to submit. (g) If the delinquent public servant proposes to contest the valuation of the property, the authorized officer may take assistance of such State Government agency or Central Government agency or any other officer or person

technically qualified as he may deem fit and proper. (h) The authorized officer, on consideration of statement of defence, reply of public prosecutor and report of experts, if any, shall adjudicate the proceeding and will pronounce final verdict within a maximum period of 6 months from the day of service of notice. (i) The authorized officer, after final adjudication, may proceed to confiscate the property in accordance with Section 15 of the Act."

From perusal of Clause ''b'' as well as Clause ''c'', it

is evident that at the first instance 30 days time is permissible which

may be further extended to maximum 15 days. Clause ''c'' speaks that

in case, delinquent fails to file written statement within the aforesaid

stipulated period of 30 days or further extended period of 15 days, it

shall be presumed that he has no defence to put forward and in that

event, the Authorised Officer will proceed to adjudicate the

proceeding in absence thereof. The other part is not being taken up as,

the same happens to be with regard to discharge of an obligation by

the public prosecutor in case of filing of written statement at the end

of delinquent within the aforesaid stipulated period, that means to say,

30 days or further extended period of 15 days.

From perusal of the Act as well as Rules, it is

further evident that no power has been vested to the Authorised

Officer for extending the aforesaid maximum period allotted in two

slots. When the relevant order-sheets have been gone through, it is

found that on 22. 11. 2013, Om Prakash Singh O.P. No.1/appellant

no.1 appeared and filed time petition for filing written statement. It is

further evident from the order-sheet dated 25.11.2013 that he received

copy of petition purported to be under Section 13 of the Act along

with enclosures annexed therewith and since thereafter, time petition

on his behalf was regularly filed in routine manner on each and every

date till 13.01.2014 on which date Om Prakash Singh filed his written

statement. Therefore, the written statement was filed on 52 days after

appearance while 49 days after receipt of the enclosure. In any case, it

was beyond 45 days, the maximum prescribed limit, though there

happens to be absence of positive order at the end of Authorized

Officer extending another 15 days as required under Rule 11(b) of the

Special Courts Rules 2010 and in likewise manner, there happens to

be absence at his end for extension of the period. Furthermore,

successive orders did not speak with regard to acceptance of the

written statement having been filed on behalf of appellant/O.P. No.1,

Om Prakash Singh.

In likewise manner, the other appellants/O.P.

Nos. 2 to 5 appeared on 05.12.2013 and filed a petition on 21.12.2013

to drop the proceeding against them whereupon, the proceeding sailed

for quite a long time and then lastly, vide order dated 01.05.2014, the

same was rejected directing them to file written statement by

06.05.2014. Instead of filing written statement at their end, they filed

petition before the Authorized Officer that they are going to challenge

the order dated 01.05.2014, which they never did and lastly, written

statement happens to be at their end on 24.05.2014.

Before calculating the period, it is evident that

neither any prayer was made at the end of appellants/O.P. Nos. 2 to 5

for extension of another 15 days for filing written statement nor the

Court, on its own, extended the same. In likewise manner, there

happens to be no intermediary provision available whereunder a

prayer should be at the end of Opposite Parties to drop the proceeding

though made and further, filing of written statement on 24.05.2014,

virtually, happens to be beyond maximum prescribed tenure of 45

days.

Considering the intention of the legislature

inconsonance with the provisions having prescribed thereunder, more

particularly, regarding disposal of the proceeding as warrant trial as

well as confined the same within specific time frame and further,

having absence of inherent power vested to the Authorized Officer

during course of acceptance of written statement beyond prescribed

period and further perceiving embargo in terms of Rule 11 (c) of the

Special Court Rules, written statement having been filed on behalf of

appellants/Opposite Parties were not at all entertainable and that being

so, whatever grounds they have taken, go out of consideration.

Consequent thereupon, the grounds whatever been taken at the present

moment could not be considered.

Consequent thereupon, the instant appeal sans

merit and is, accordingly, dismissed.