Orissa High Court
Gangadhar Sahoo vs State Of Odisha on 6 February, 2018
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No. 24 Of 2012
An appeal under section 17 of the Orissa Special Courts Act,
2006 from the order dated 21.12.2011 passed by the Authorized
Officer, Special Court, Bhubaneswar in Confiscation Case No.3 of
2011.
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Gangadhar Sahoo ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Hemanta Kumar Mund
For Respondent: - Mr. Sanjay Kumar Das
Standing Counsel (Vig.)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Argument: 06.11.2017 Date of Judgment: 06.02.2018
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S. K. SAHOO, J.The appellant Gangadhar Sahoo has knocked at the portals of this Court for the third time by preferring this appeal under section 17 of the Orissa Special Courts Act, 2006 (hereafter '2006 Act') challenging the impugned order dated 21.12.2011 passed by the learned Authorized Officer, Special Court, Bhubaneswar in Confiscation Case No.3 of 2011 in 2 rejecting his petition dated 22.11.2011 filed for dismissal of the confiscation proceeding, holding the same as not maintainable.
2. The factual scenario of the case shows that Cuttack Vigilance P.S. Case No.10 of 1984 was instituted against the appellant on the basis of the first information report dated 09.03.1984 presented by Sri P.K. Behura, D.S.P., Vigilance, Cuttack Division, Cuttack which ultimately resulted in submission of charge sheet on 28.09.1988 by Sri B.B. Mohapatra, D.S.P., Vigilance, Cuttack Division, Cuttack under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act, 1947 (hereafter '1947 Act') against the appellant on the accusation of possession of disproportionate assets to the tune of Rs.5,02,530.86 paisa to his known sources income during the check period from 05.08.1971 to 15.03.1984 after obtaining necessary sanction from the competent authority as per section 6(1)(b) of the 1947 Act. The said case is now subjudiced for trial before the learned Special Judge, Special Court, Bhubaneswar in T.R. Case No.13 of 2008.
3. The State Government in Home Department in exercise of the power conferred under section 5 of the 2006 Act made a declaration in respect of the appellant on dated 3 11.07.2008 which was published in the Extraordinary Orissa Gazette dated 15th July 2008. The declaration reads as follows:-
HOME DEPARTMENT DECLARATION The 11th July 2008 FORM NO. I (See Rule-7) S.R.O. No.345/08-WHEREAS, it was alleged that Shri Gangadhar Sahoo, S/o. Lokanath Sahoo of Village Kusunda, P.S. Banki, District Cuttack, State Orissa, while holding high Public Office in the State of Orissa, i.e. Ex-Executive Engineer, CADA (Command Area Development Authority), Bhubaneswar committed an offence under clause (e) of sub-section (1) of Section 5 of the Prevention of Corruption Act, 1947 corresponding to clause (e) of sub-section (1) of Section 13 of the Prevention of Corruption Act, 1988 and that the matter was investigated in Cuttack Vigilance P.S. Case No.10, dated the 9th March 1994.
AND WHEREAS, on scrutiny of relevant materials available on record, the State Government is of the opinion that there is prima facie case of commission of the offence of Shri Gangadhar Sahoo, who has accumulated properties disproportionate to his known sources of income by resorting to corrupt means:4
AND WHEREAS, it is felt necessary and expedient by the Government that the said offender should be tried by the Special Court established under sub-section (1) of Section 3 of Special Courts Act, 2006:
NOW, THEREFORE, in exercise of the powers conferred by sub-section (1) of Section 5 of Special Courts Act, 2006 (Orissa Act 9 of 2007), the State Government do hereby declare that the said offence shall be dealt with under the Special Courts Act, 2006.
[No.3173-C] By order of the Governor TARUNKANTI MISHRA Principal Secretary to Government
4. On the first occasion, the appellant filed WPCRL No.54 of 2009 before this Court challenging the aforesaid notification dated 11.07.2008 and the constitutional validity of 2006 Act and the rules framed thereunder. A Division Bench of this Court disposed of the writ petition along with a batch of other cases by a common judgment dated 16.09.2010 in case of Dibyadarshi Biswal and others -Vrs.- State of Orissa reported in (2011) 49 Orissa Criminal Reports 1, in which the prayer made to quash the notification issued under section 5(1) of 2006 Act was turned down and it was held that 2006 Act prevails over the Central laws regarding confiscation proceeding. 5 It was further held that the 2006 Act and Prevention of Money Laundering Act (hereafter 'PML Act') were operating in different fields and therefore, the provisions of 2006 Act are not repugnant to the provisions of PML Act as amended by Amendment Act, 2009. The other points which were raised by the petitioners including the appellant in the batch cases which are not relevant for adjudication of this criminal appeal, were also not accepted and accordingly, the writ petitions were dismissed being devoid of merits and the Special Courts which were constituted under the provisions of 2006 Act were directed to conduct expeditious trial and dispose of the cases by following the Criminal Procedure Code by taking up the cases on day to day basis.
The appellant along with others challenged the common judgment and order dated 16.09.2010 passed in case of Dibyadarshi Biswal (supra) by way of filing Special Leave Petitions which were disposed of by the Hon'ble Supreme Court in a common judgment dated 10.12.2015 in case of Yogendra Kumar Jaiswal -Vrs.- State of Bihar reported in (2016) 63 Orissa Criminal Reports (SC) 426 wherein it was held, inter alia, that 2006 Act is not hit by Article 199 of the Constitution and the establishment of Special Courts under 2006 Act is not 6 violative of Article 247 of the Constitution and the provisions pertaining to declaration and effect of declaration as contained in sections 5 and 6 of 2006 Act are constitutionally valid as they do not suffer from any unreasonableness or vagueness. It was further held that the Chapter III of 2006 Act providing for confiscation of property or money or both neither violates Article 14 nor Article 20(1) or Article 21 of the Constitution. It was further held that the procedure provided for confiscation and the proceedings before the Authorized Officer do not cause any discomfort either to Article 14 or Article 20(3) of the Constitution.
The appellant in the appeal memo has not made any averment relating to his earlier approach to this Court in WPCRL No.54 of 2009 rather it is indicated in the cause title as follows:-
"The matter out of which this appeal arises was never before this Court in this form."
The learned Standing Counsel for the Vigilance Department is quite justified in making his submission that the appellant has not acted fairly in suppressing the dismissal of his earlier petition vide WPCRL No.54 of 2009 by this Court which was confirmed by the Hon'ble Supreme Court. In case of Ramjas Foundation -Vrs.- Union of India reported in (2010) 14 Supreme Court Cases 38, it is held as follows:- 7
"14. The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in other courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case."
When the appellant earlier approached this Court in a writ petition for quashing the notification issued under section 5(1) of 2006 Act on the basis of which the confiscation proceeding was instituted and the prayer was turned down, in the fairness of things, the appellant should have mentioned about his earlier approach in the appeal memo and should not have mentioned in the cause title simply that the appeal was never before this Court in this form. Similarly while extracting the Extraordinary Orissa Gazette declaration dated 11.07.2008, certain vital words like "corresponding to clause (e) of sub- 8 section (1) of section 13 of the Prevention of Corruption Act, 1988" after the words "section 5 of the Prevention of Corruption Act, 1947" have been omitted. When it was pointed out by the learned Standing Counsel for the Vigilance Department, learned counsel for the appellant submitted that it was inadvertently done.
It is a common knowledge that such mistakes do occur. For any lapse or mistake which is unintentional, nobody can be prohibited to ventilate his grievances in the Court of law. However, a petition before its presentation in the Court of law is required to be carefully drafted and verified and any kind of factual error should be avoided.
5. On the second occasion, the appellant approached this Court in Criminal Appeal No.410 of 2011 challenging the order dated 18.06.2011 of the learned Authorized Officer, Special Court, Bhubaneswar in the same confiscation proceeding in rejecting his prayer for dismissal of the proceeding. This Court vide judgment and order dated 04.11.2011 turned down the contentions raised by the appellant that since the property in question is in custodia legis of the learned trial Court, the initiation of the confiscation proceeding is not permissible particularly when the trial of the case is subjudiced. 9
6. It appears that immediately after the disposal of Criminal Appeal No.410 of 2011, another petition was filed by the appellant on dated 22.11.2011 on the ground that the confiscation proceeding flows from the criminal proceeding started against him under section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereafter '1988 Act') for the accumulation of disproportionate assets during the check period from 05.08.1971 to 15.03.1984, during which period 1988 Act was not in force and the alleged act which is the subject matter of the confiscation proceeding was not an 'offence' under the 1988 Act which came into force with prospective effect from 09.09.1988. The learned Authorized Officer relying upon the provision under section 30(2) of the 1988 Act held that any act cognizable under the 1947 Act shall be held cognizable under the 1988 Act notwithstanding the fact that 1988 Act was not in force when the alleged occurrence took place. The learned Authorized Officer placed reliance upon the decision of the Hon'ble Supreme Court in case of Nar Bahadur Bhandari -Vrs.- State of Sikkim reported in A.I.R. 1998 S.C. 2203 wherein it was held that the Special Judge constituted under section 3 of the 1988 Act is competent to try the offences 10 punishable under 1947 Act by virtue of the deeming provision under section 30(2) of the 1988 Act.
The order passed by the learned Authorized Officer is the subject matter of challenge in this criminal appeal.
7. Mr. Hemanta Kumar Mund, learned counsel appearing for the appellant contended that the appellant is being charged and prosecuted for the offence under section 5(2) read with section 5(1)(e) of the 1947 Act. Section 2(d) of 2006 Act defines the term 'offence' which means an offence of criminal misconduct within the meaning of clause (e) of sub-section (1) of section 13 of 1988 Act and not under section 5(1)(e) of 1947 Act and therefore, neither a person charge sheeted for an offence under section 5(1)(e) of 1947 Act can be prosecuted for the offence under section 13(1)(e) of 1988 Act nor convicted thereunder and therefore, the appellant cannot be proceeded under the provisions of Chapter III of the 2006 Act. It is further contended by the learned counsel for the appellant that the very filing of an application for confiscation before the learned Authorized Officer against a person accused of an offence under section 5(1)(e) of 1947 Act is not in accordance with law and therefore, the impugned order should be set aside by quashing the confiscation proceeding. It is further contended that as per 11 the provisions of section 6 of the General Clauses Act, 1897 the appellant can only be proceeded for confiscation of property involved in the case in accordance with law as it prevailed by then prior to the repeal of 1947 Act. The learned counsel for the appellant placed reliance in case of Jagan M. Seshadri -Vrs.- State of Tamil Nadu reported in A.I.R. 2002 S.C. 2399.
Mr. Sanjay Kumar Das, learned Standing Counsel for the Vigilance Department on the other hand vehemently contended that the retrospective applicability of 2006 Act has been discussed by the Hon'ble Supreme Court in case of Yogendra Kumar Jaiswal (supra) and it was held that the provisions relating to the accused under 1988 Act facing the interim confiscation proceeding under 2006 Act does not violate any constitutional assurance. It is contended by the learned counsel that in view of section 6(2) of 2006 Act, the case of the appellant was transferred to the Special Court, Bhubaneswar for trial of the offence in accordance with 2006 Act and after transfer of the record to the Special Court and on receipt of authorization from the Government, the Special Public Prosecutor made an application for confiscation before the learned Authorized Officer, Special Court, Bhubaneswar under section 13(1) of 2006 Act and accordingly, Confiscation Case No.3 of 2011 was instituted. It is 12 contended that the intention of pre-trial confiscation is an interim measure and not a punishment as held by the Hon'ble Supreme Court in case of Yogendra Kumar Jaiswal (supra) and therefore, when the declaration made under section 5(1) of 2006 Act by the State Government in the Extraordinary Orissa Gazette relating to the appellant was held to be valid in the case of Dibyadarshi Biswal (supra) and the writ petition filed by the appellant was dismissed and the same was upheld by the Hon'ble Supreme Court, the contention raised by the appellant to drop/dismiss the confiscation proceeding is not sustainable in the eye of law. Learned counsel placed reliance on section 30(2) of 1988 Act, section 6 of the General Clauses Act, 1897 and also section 21 of 2006 Act and contended that there is no illegality in the continuance of the confiscation proceeding.
8. Section 13(1) of 2006 Act states that where on the basis of prima facie evidence, the State Government have reasons to believe that any person who has held high public or political office has committed the offence, whether or not the Special Court has taken cognizance of the offence, may authorise the Public Prosecutor for making an application to the Authorized Officer for confiscation of the money and other property under 13 2006 Act which the State Government believe the said person to have procured by means of the offence.
The offence, as per section 2(d) of 2006 Act means an offence of criminal misconduct within the meaning of clause
(e) of sub-section (1) of section 13 of the 1988 Act. As per section 30(1) of 1988 Act, even though 1947 Act was repealed but in sub-section (2) of section 30, it is mentioned that notwithstanding such repeal, but without prejudice to the application of section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of 1947 Act shall, insofar as it is not inconsistent with the provisions of 1988 Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of 1988 Act. Section 6 of the General Clauses Act, 1897 indicates, inter alia that where any Central Act repeals any enactment, then, unless a different intention appears, the repeal shall not affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder or affect any investigation, legal proceeding or remedy, obligation, liability, penalty, forfeiture or punishment and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, 14 forfeiture or punishment may be imposed as if the repealing Act had not been passed. The objective of the provision is to ensure protection of any right or privilege acquired under the repealed Act. The only exception to it is legislative intention to the contrary i.e. the repealing Act, may expressly provide or it may impliedly provide against continuance of such right, obligation or liability.
In the case of Nar Bahadur Bhandari (supra), it was held that sub-section (2) of section 30 of the 1988 Act, on the one hand ensures that the application of section 6 of the General Clauses Act is not prejudiced, on the other it expressed a different intention as contemplated by the said section. The last part of sub-section introduced legal fiction whereby anything done or action taken under or in pursuance of 1947 Act shall be deemed to have been done or taken under or in pursuance of the corresponding provision of the 1988 Act. The fiction is to the effect that the 1988 Act had come into force when such thing was done or action was taken.
Section 21 of 2006 Act provides, inter alia, that the provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force. 15
The learned counsel for the appellant placed reliance in case of Jagan M. Seshadri (supra). In the said case, the appellant faced trial for commission of offence under sections 5(1)(d) and (e) read with section 5(2) of the Prevention of Corruption Act, 1947 and was acquitted by the learned trial Court. The State challenged the order of acquittal. The High Court accepted the appeal of the State and reversed the order of acquittal of the appellant and the appellant was convicted for offences under section 13(1)(e) of the Prevention of Corruption Act, 1988 read with section 13(2) of the Prevention of Corruption Act, 1988. According to the High Court, since charge was framed after 09.09.1988, though, with regard to offence allegedly committed by the appellant during the check period 1977-1984, the appellant should have been charged under section 13(1)(e) read with section 13(2) of the 1988 Act and not under section 5(1)(e) of the 1947 Act. Relying on section 30 of the 1988 Act, the High Court opined that the appellant shall be 'deemed' to have been charged for offences under section 13(1)(e) read with section 13(2) of the 1988 Act and the framing of charge by the trial Court under section 5(1)(e) read with section 5(2) of the 1947 Act, was invalid. The appellant challenged the order of the 16 High Court before the Hon'ble Supreme Court. It was held by the Hon'ble Supreme Court as follows:-
"7. A bare reading of Section 30(2) of the 1988 Act shows that any act done or any action taken or purported to have been done or taken under or in pursuance of the repealed Act, shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provisions of the Act. It does not substitute Section 13 in place of Section 5 of the 1947 Act. Section 30(2) is applicable "without prejudice to the application of Section 6 of the General Clauses Act, 1897". In our opinion, the application of Section 13 of the 1988 Act to the fact situation of the present case would offend Section 6 of the General Clauses Act, which, inter alia provides that repeal shall not (i) affect previous operation of any enactment so repealed or anything duly done or suffered thereunder or
(ii) affect any investigation legal proceedings or remedy in respect of any such rights, privilege, obligation, penalty, forfeiture of punishment.
Section 13 both in the matter of punishment as also by the addition of the explanation to Section 13(1)(e) is materially different from Section 5 of the 1947 Act. The presumption permitted to be raised under the explanation to Section 13(1)(e) was not available to be raised under Section 5 17 (1 )(e) of the 1947 Act. This difference can have a material bearing on the case."
The factual scenario of the present case is different from that of Jagan M. Seshadri (supra). In the present case, the appellant has been charge sheeted under section 5(2) read with section 5(1)(e) of the 1947 Act and he is also facing trial for such offence before the Special Judge, Special Court, Bhubaneswar in T.R. Case No.13 of 2008. The declaration made by the State Government in purported exercise of power conferred under section 5(1) of 2006 Act in the Extraordinary Orissa Gazette vide notification dated 11.07.2008 mentions that the appellant has committed an offence under clause (e) of sub- section (1) of Section 5 of the Prevention of Corruption Act, 1947 corresponding to clause (e) of sub-section (1) of section 13 of the Prevention of Corruption Act, 1988 and therefore, the said offence shall be dealt with under 2006 Act.
9. The phraseology of section 13(1)(e) of the 1988 Act, which, except for the explanation as added to that section, is in pari materia with section 5(1)(e) of the 1947 Act. The explanation has been added in 13(1)(e) of 1988 Act wherein the meaning of "known sources of income" has been defined. Both are conceptually period offences and it has reference to assets accumulated and known sources of income in a particular period. 18 The obligation of the accused public servant to satisfactorily account for the assets remains the same under both 1947 Act (after 1964 amendment) and under the 1988 Act. The requirement of law also remains the same. The accused public servant has to account for to the satisfaction of the Court that the assets available with him were not disproportionate to the known sources of his income. The onus in this regard has not undergone any change or modification with the introduction of the explanation to section 13(1)(e) of the 1988 Act. Therefore, under 1988 Act, the accused public servant should have a lawful source of income and the said income should also have been intimated to the authorities concerned in accordance with law and then only the Court can take it as 'known sources of income'. The explanation does not alter or change the law on what or which assets the accused public servant are required to be account for. The assets can be those which have been disclosed and also other assets which have not been disclosed by the public servant but there must be evidence that the assets are possessed or belonged to or held by the accused public servant. The law on this aspect has not undergone any substantial change or altered by introduction of the explanation to section 13(1)(e) of 1988 Act.
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10. The objects and reasons of 2006 Act place immense emphasis on corruption amongst the persons holding high political and public offices in the State of Orissa and the stress is on the accumulation of vast property by such persons, disproportionate to their known sources of income by resorting to corrupt means and to prosecute persons involved in such corrupt practices and for establishment of Special Courts to prevent delay in the final determination of the guilt or innocence of the persons to be tried. In case of Yogendra Kumar Jaiswal (supra), it was held that the legislative policy behind establishment of Special Courts for trial of accused involved in the offence under section 13(1)(e) of the 1988 Act in respect of certain categories of accused is absolutely impeccable and it is saved from the vice of Article 14 of the Constitution. The retrospective applicability of 2006 Act in respect of the accused persons arrayed as accused under 1988 Act was also upheld, holding that confiscation of property is not a punishment and therefore, Article 20(1) of the Constitution of India is not attracted. It was further held that the property of an accused facing trial under 1988 Act could be attached and there can be administration by third party of the said property and eventual forfeiture after conviction. It was further held that an accused 20 has no vested right as regards the interim measure and he is not protected by any constitutional right to advance the plea that he cannot be made liable to face confiscation proceedings of the property which has been accumulated, by illegal means. It was further held that the filament of reasoning has to rest in favour of confiscation and not against it and that the provision does not violate any constitutional assurance. It was further held that section 13(1)(e) of 1988 Act targets the persons who have disproportionate assets to their known sources of income. This conceptually is a period offence, for it is not incident specific as such. It does not require proof of corruption in specific acts, but has reference to the assets accumulated and known sources of income in a particular period. The test applicable and proof required is different. It was further held that in the context of the 2006 Act, it is associated with high public office or with political office which are occupied by people who control the essential dynamics of power which can be a useful weapon to amass wealth adopting illegal means.
11. The delinquent officers holding high public or political office having disproportionate assets coming within the purview of section 13(1)(e) of 1988 Act have to face trial in the Special Court established under section 3 of 2006 Act and they are also 21 to face the confiscation proceedings as provided under Chapter III of the 2006 Act before the authorised officer subject to judicial scrutiny. If the accused persons having disproportionate assets coming within section 5(1)(e) of 1947 Act are taken out of the purview of the said confiscation proceedings as contended by the learned counsel for the appellant then there would be unreasonable classification between the two sets of accused persons facing trial before the Special Court, one under section 13(1)(e) of 1988 Act and the other under section 5(1)(e) of 1947 Act. They face similar nature of accusation of accumulation of disproportionate assets to their known sources of income before the same Court but for different period. Creating a micro-mini classification between them on the basis of period of commission of offence would not be conducive in the interest of justice rather it would frustrate the very purpose of existence of confiscation proceeding in 2006 Act. By enactment of 2006 Act, a classification has already been made between the persons holding high public or political office than other persons having accusation of accumulation of disproportionate assets. The holders of high public or political office enjoy a distinguished position in contrast to other categories of officers or post holders and they form a separate class altogether and therefore, the 22 legislature with regard to their position has put them in a different class. By making further classification amongst the separate class of persons holding high public or political office on the basis of years of accumulation of disproportionate assets would be unfair and unreasonable. Such an approach would neither be based on any intelligible differentia nor would have any rational reason to the object sought to be achieved by 2006 Act. A person holding high public or political office in the State of Orissa at any point of time in respect of whom a prosecution under section 5(1)(e) of 1947 Act has already been instituted and pending in the Special Court cannot escape from the rigour of the confiscation proceeding as provided under Chapter III of the 2006 Act merely because disproportionate assets were accumulated prior to coming of 1988 Act. When an accused holding high public or political office and charge sheeted under section 5(2) read with section 5(1)(e) of 1947 Act has to face trial in the Special Court as established under the provisions of 2006 Act as has been done in the case of the appellant by publishing notification in the Extraordinary Orissa Gazette and such declaration was held to be constitutionally valid and Chapter III of 2006 Act providing for confiscation of property or money or both was held not to be violative either of Articles 14, 23 20(1) or Article 21 of the Constitution of India by the Hon'ble Supreme Court in case of Yogendra Kumar Jaiswal (supra), I am of the humble view that the learned Authorised Officer, Special Court, Bhubaneswar has not committed any illegality in rejecting the petition filed by the appellant as per the impugned order dated 21.12.2011.
12. Accordingly, the Criminal Appeal being devoid of merits, stands dismissed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 06th February, 2018/Pravakar/Sukanta