Madras High Court
Nkkp. Raja vs State Of Tamil Nadu Rep. By on 26 November, 2013
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.11.2013 CORAM: THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR C.M.A.No.3246 of 2013 and M.P.No.1 of 2013 1.NKKP. Raja 2.Parimaladevi @ R.Parimala 3.R.Uma Maheswari ... Appellants .vs. State of Tamil Nadu rep. by Deputy Superintendent of Police Vigilance and Anti Corruption Erode Detachment at Erode Crime No.01/AC/2012/ER ... Respondent Prayer: Civil Miscellaneous Appeal is filed under Section 11 of the Criminal Law (Amendment) Ordinance, 1944 against the Order of the Special Judge, Special Court for cases under Prevention of Corruption Act, Coimbatore dated 31.07.2013 made in Crl.M.P.No.366 of 2013 in Spl.C.C.No.22 of 2012. For Appellants : Mr.N.Manoharan For Respondent : Mr.A.L.Somayaji, Advocate General assisted by Mr.M.Venugopal Special GP (CS) J U D G M E N T
This civil miscellaneous appeal is purported to have been filed under Section 11 of the Criminal Law (Amendment) Ordinance, 1944. The appellants herein figure as Accused 1 to 3 in Special C.C.No.22/2012 pending on the file of the learned Special Judge, Special Court for trial of cases under the Prevention of Corruption Act, 1988, Coimbatore.
2. Based on the authorisation given by the State Government, the respondent chose to file an application before the Special Judge under Section 3 of the Criminal Law (Amendment) Ordinance, 1944 for attachment of the properties of the appellants herein. Though the application came to be filed by the respondent as an Original Application, the Special Judge chose to take it on file as a Criminal Miscellaneous Petition assigning the number Crl.M.P.No.336/2013 in Special C.C.No.22/2012. The said order is sought to be challenged invoking the appellate powers conferred on this court under Section 11 of the above said Ordinance.
3. A preliminary objection has been raised on behalf of the respondent regarding the maintainability of the appeal on the following grounds:
1) The order challenged being one of interim order, no appeal shall lie under Section 11 of the Criminal Law (Amendment) Ordinance, 1944;
2) The appellants have filed objections before the Special Judge and they have also asked for raising the ad-interim attachment under Section 4 of the Criminal Law (Amendment) Ordinance, 1944. As such, without waiting for a final adjudication based on their objections, the appellants have chosen to approach this court with the present appeal and hence the appeal should be rejected as premature.
4. Though the impugned order came to be passed in a petition, which was numbered as Criminal Miscellaneous Petition in a pending criminal case, namely Special C.C.No.22/2012, the same is challenged by filing the appeal as Civil Miscellaneous Appeal. When this court expressed doubt over the maintainability of a Civil Miscellaneous Appeal against an order passed in the Criminal Miscellaneous Petition, Mr.N.Manoharan, learned counsel for the appellants, took the court through various provisions in the Criminal Law (Amendment) Ordinance, 1944, to show that the power conferred on the District Judge under the relevant provisions, is only civil in nature and that the proceedings are to be governed by the provisions of the Code of Civil Procedure. Learned counsel for the appellants pointed out Sub clause (2) of Section 5 of Criminal Law (Amendment) Ordinance, 1944 and also Sub clause (2) of Section 9 of the said Ordinance, which refer to the provisions of the Code of Civil Procedure, as the provisions applicable for the exercise of the power conferred on the District Judge under the Criminal Law (Amendment) Ordinance, 1944. In addition, the learned counsel for the appellants also drew the attention of the court to Section 5(6) of the Prevention of Corruption Act, 1988 to show that the power under the Criminal Law (Amendment) Ordinance, 1944 is conferred on a District Judge and not a Sessions Judge and that by virtue of the said section in the Prevention of Corruption Act, the Special Judge is deemed to be a District Judge to exercise the powers under the Criminal Law (Amendment) Ordinance, 1944.
5. The learned Advocate General appearing for the respondent fairly concedes that the said submission made by the learned counsel for the appellants has got to be countenanced and that the Special Judge passed the order only in his capacity as a deemed District Judge. The learned Advocate General also admits the correctness of the contention made by the learned counsel for the appellants that the application filed by the respondent was correctly made as an Original Application, but the Special Judge, by mistake, took it on file as Criminal Miscellaneous Petition and that the said mistake, which is procedural in nature, need not deter this court in proceeding with the appeal, if it is otherwise maintainable.
6. The learned Advocate General, arguing on behalf of the respondent, very much relies on Section 11 of the Criminal Law (Amendment) Ordinance, 1944 to show that, apart from the State Government or the Central Government, as the case may be, any other person, who is given a right to file an appeal, should have either chosen to show cause under Section 4 or Section 6 or should have made an objection under Section 4 or should have made an application under Section 8 or Section 9 of the Criminal Law (Amendment) Ordinance, 1944 and that after making such an application, he should have awaited further order of the court on such an objection or after such cause being shown and that since the objections raised by the appellants are yet to be considered and final order is yet to be passed by the Special Judge, the present appeal should be rejected as premature and not maintainable.
7. For better appreciation, Section 11 of the Criminal Law (Amendment) Ordinance, 1944 is reproduced here under:
11. Appeals:- ( 1) The State Government or as the case may be, the Central Government or any person who has shown cause under Sec-tion 4 or Section 6 or has made an objection under Section 4 or has made an application under Section 8 or Section 9, if aggrieved by any order of the District Judge under any of the foregoing pro-visions of this Ordinance, may appeal to the High Court within thirty days from the date on which the order complained against was passed.
(2) Upon any appeal under this section the High Court may, after giving such parties, as it thinks proper, an opportunity of be-ing heard, pass such orders as it thinks fit.
(3) Until an appeal under this section is finally disposed of by the High Court no Court shall, otherwise, than in accordance with the provisions of Section 8 or Section 13, order the withdrawal or suspension of any other of attachment to which the appeal relates.
A conjoint reading of Sections 4, 5, 6, 8, 9 and 11 of the Ordinance will make it clear that the above said submissions made by the learned Advocate General is sound and has got to be sustained.
8. Learned counsel for the appellants also admits the fact that for the show cause notice, they have filed a counter and the Special Court is yet to pass an order after hearing both parties regarding the objections raised by them. Under such circumstances, this court comes to the conclusion that, though the order passed by the Special Judge shall be taken as an order passed by the Special Judge on the civil side, in exercise of his power as a District Judge, the present appeal is not maintainable as it is premature. The appellants have to await final orders to be passed on the consideration of their objections to the ad-interim attachment.
9. The learned counsel for the appellants expressed an apprehension that the learned Special Judge, as a deemed District Judge, may not be expected to take a different view, as he has already made an observation that a prima facie case has been made out against the appellants, as they face charges under the Prevention of Corruption Act, 1988 in Special C.C.No.22/2012 and they had not filed any petition for discharge. Of course, the said observation of the learned Special Judge is quite unwarranted. Simply because the accused have filed a petition seeking discharge, the same will not show absence of a prima facie case against them. Similarly, simply because they have not chosen to file a petition for discharge, the other view also shall not be correct. In view of the same, this court, while deciding to dismiss the appeal as not maintainable being premature, wants to issue a direction to the Special Judge to consider the objections of the appellants impartially, without being influenced by any one of the observations made in the Order, which is challenged in this appeal and without taking the dismissal of this appeal, as an approval of the views expressed by the Special Judge in the order impugned in this appeal.
In the result, the civil miscellaneous appeal is dismissed as not maintainable being premature. The learned Special Judge, Special Court for trial of cases under the Prevention of Corruption Act, 1988, Coimbatore, is directed to consider the objections of the appellants impartially, without being influenced by any one of the observations made in the Order dated 31.07.2013 made in Crl.M.P.No.366 of 2013 in Spl. C.C.No.22 of 2012, which is challenged in this appeal and without taking the dismissal of this appeal as an approval of the views expressed in it. The learned Special Judge shall also convert the nomenclature of the application into an Original Application from Criminal Miscellaneous Petition and pass orders. Consequently, the connected miscellaneous petition is closed. No cost.
26.11.2013 Index : Yes Internet : Yes asr/ To The Special Judge, Special Court for trial of cases under the Prevention of Corruption Act, 1988, Coimbatore.
P.R.SHIVAKUMAR, J.
asr/-
C.M.A.No.3246 of 2013and M.P.No.1 of 2013 Dated : 26.11.2013