State of Karnataka vs Mahesh Shankar Hanumshet

B.V. Pinto, J.—This appeal u/s 11 of the Criminal Law Amendment Ordinance, 1944 is filed by the Lokayukta Police, Belgaum challenging the order dated 13.04.2010 passed in Belgaum Lokayukta Police Station Crime No. 14/2008 rejecting the application filed by the Special Public Prosecutor u/s 3 of the Criminal Law (Amendment) Ordinance, 1944 (''the Ordinance'' for short). It is the case of the appellant-Lokayukta that the properties at Sl. Nos. 1 to 56 mentioned in the application are liable for attachment on the ground that the respondent has possessed the same disproportionate to his known sources of income which is worth to the tune of Rs. 17,08,35,752/-. The Lokayukta has filed a complaint against the respondent alleging that the respondent was the Motor Vehicle Inspector and that he was appointed as such and when a raid was conducted on the basis of reliable information, it was found that the respondent was in possession of assets which are in excess of his known sources of income to an extent of Rs. 17,08,35,752/-. The description of the said property is shown at item Nos. 1 to 56 in the said application. The learned Special Judge has declined to grant the permission for attachment on the ground that Section 5(6) of the Prevention of Corruption Act, 1988 (''the Act'' for short) empowers the Special Judge to pass an order as prayed for only when the said Special Judge tries the offence.

I have heard Sri. M. B. Gundawade, learned Counsel for the Lokayukta and Sri. R. D. Desai, learned Counsel for the respondent/accused.

The learned Counsel for Lokayukta submits that Section 3(1) of the Ordinance authorises a District Judge to pass such an order whether or not the said Court has taken cognizance of the offence and that the purpose of the Ordinance is to prevent the disposal or concealment of property procured by means of corruption or offences. Hence he submits that the application filed by the Lokayukta may be allowed.

The learned Counsel for the respondent-accused submits that the provision u/s 5(6) of the Act is clear that the power conferred on the District/Special Judge may be exercised by the learned Special Judge only during the trial and not otherwise. He has relied on the ruling, reported in Dr. V.K. Rajan Vs. State of Kerala, wherein it is stated as follows:

When the words of a statute are clear, plain and unambiguous and capable of one meaning only, the Courts are bound to give effect to that meaning irrespective of consequences, as held by the Apex Court of Nelson Motis Vs. Union of India and another, Here S. 5(6) of the Prevention of Corruption Act, is clear and Special Judge will get power of attachment under the Ordinance, only ''while trying an offence'' and not during investigation stage. The power to be exercised and objects to be achieved under the Ordinance and Prevention of Corruption Act, are different and for the purpose of convenience, power of the District Court is given to the Special Court only during trial of an offence.

Section 3(1) of the Criminal Law Amendment Ordinance, 1944 states as follows:

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 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.

On a careful observation of the said Section, it is clear that the application for attachment can be made "whether or not any Court has taken cognizance of the offence" which indicates that even in the pre-cognizance stage, the learned Sessions Judge has power to attach the properties which are procured by means of an offence. The provision u/s 5(6) of the Act indicates that, when the Special Judge tries the offence, he gets the power to pass any order under the Criminal Law Amendment Ordinance, 1944. When there is conflict between the two special laws, the rule of interpretation is such that, it should advance the remedy and suppress the mischief which is sought for by the Acts. Therefore, the purpose of Ordinance is to see that the property, which is liable for confiscation being in excess of known sources of income, has to be safeguarded, otherwise the interest of justice would be at peril. The apprehension of the learned Counsel for the respondent that in this case all the properties belonging to all the relatives of the respondent/accused have been proposed to be attached. The said apprehension can be taken care of by giving him an opportunity before the Special Judge to show to the said Court that the ownership of the said property vests in any person other than the accused and thus, seek for exemption from attachment. It is further seen that Section 4 of the Ordinance also indicates that an opportunity shall be given to the person concerned before the attachment of the property is effected.

Under the circumstances, the petition filed by the Lokayukta is entitled to be allowed and therefore, the order dated 13.05.2010 passed by the learned Sessions and Special Judge, Lokayukta, Belgaum is set aside and the application filed by the Lokayukta is hereby allowed. The learned Special Judge is directed to proceed with the procedure for attachment of the property as requested by the Lokayukta in accordance with law, after giving an opportunity to the persons concerned and pass appropriate orders in the interest of justice.

* 8. Under the circumstances, the petition filed by the Lokayukta is entitled to be allowed and therefore, the order dated 13.05.2010 passed by the learned IV-Additional District and Sessions Judge, Lokayukta, Belgaum is set aside and the application filed by the Lokayukta is hereby allowed. The learned IV-Additional District and Sessions Judge is directed to proceed with the procedure for attachment of the property as requested by the Lokayukta in accordance with law, after giving an opportunity to the persons concerned and pass appropriate orders in the interest of justice.

* Corrected vide Court Order dated 30.08.2011 BVPJ:

Crl. A. No. 2661/2011

30.08.2011

ORDER ON BEING SPOKEN TO

Heard. In the judgment dated 25.08.2011 in page Nos. 7 and 8, para 8 of the judgment shall be read as follows:

Under the circumstances, the petition filed by the Lokayukta is entitled to be allowed and therefore, the order dated 13.05.2010 passed by the learned IV-Additional District and Sessions Judge, Lokayukta, Belgaum is set aside and the application filed by the Lokayukta is hereby allowed. The learned IV-Additional District and Sessions Judge is directed to proceed with the procedure for attachment of the property as requested by the Lokayukta in accordance with law, after giving an opportunity to the persons concerned and pass appropriate orders in the interest of justice.