Madhya Pradesh High Court
Shri Suresh Upadhyay vs The State Of Madhya Pradesh on 7 August, 2020
Author: Sanjay Yadav
Bench: Sanjay Yadav
1
THE HIGH COURT OF MADHYA PRADESH
Criminal Appeal No. 10618/2019
(Suresh Upadhyay and others V. The State of M.P. and others)
Jabalpur, Dated : 07.08.2020
Hearing through Video Conferencing.
Shri S.C. Datt, learned Senior Counsel with Shri Mayank
Sharma and Shri Varun Tankha, learned counsel for the appellants.
Shri A. Rajeshwar Rao, learned Govt. Advocate for
respondent/State.
With the consent of learned counsel for the parties, the matter is finally heard.
The appeal under Section 11 of the Criminal Law (Amendment) Ordinance, 1944 takes exception to order dated 27.11.2019 passed by the Special Judge (Prevention of Corruption Act), Jabalpur dismissed the preliminary objection raised by the appellant as to tenability of an application under Section 3 of 1944 Ordinance filed at the instance of the prosecution for attachment of moveable and immoveable property. The preliminary objections were raised in response to notice under sub-Section (2) of Section 4 of the Ordinance and under sub-Section (4) of Section 4 thereof.
2. Relevant facts briefly are that, on 20.6.2019 an F.I.R was registered against the appellants bearing Crime No. 25/2019 for the offences punishable under Section 13 (1) (b) and Section 13 (2) of the Prevention of Corruption Act, 1988 read with Section 120 B of the Indian Penal Code, 1860 in the Economic Offences Wing, Unit 2 Jabalpur. The allegations are that during the check period of 6.8.1978 to 31.08.2014 the appellant No. 1 had amassed moveable and immovable properties in his own name and in the name of appellant Nos. 2 and 3 who are his wife and son. The details of immovable properties and moveable properties are brought on record, annexed with Annexure A/2 and as A-1, B, C and D. Whereas A-1 and A-2 respectively records 62 and 81 immoveable properties, B, C and D record Jewellery, gold and silver, cash and the amount in Bank and the list of Vehicles, respectively.
3. These properties are sought to be attached by the prosecution under the provisions of Ordinance 1944. That, an application under Section 3 came to be filed by the Inspector/Investigating Officer, EOW Unit, Jabalpur on the strength of authorisation under Section 3 of Ordinance 1944 and with Section 5 (6), 18 A (2) of 1988 Act (as amended vide Amendment Act No. 16 of 2018), by the Director General, EOW, Madhya Pradesh, Bhopal.
4. On receiving the application Special Judge in purported exercise of his powers under sub-Section (1) of Section 4 of the Ordinance passed an interim injunction order and simultaneously issued noticed to present appellants as to why the order be not made absolute under Section 5, by his order dated 2.8.2019.
5. That, preliminary objections were raised by the appellants as to validity of the proceedings under Section 3 for want of proper authorization. It was urged that, the Authority to authorize being the State, it was beyond the competence of the Director General to have 3 granted such authority to move the Court for attachment. It was accordingly urged the proceedings initiated were void ab initio.
6. At this stage it is pertinent to note that learned Special Judge on receiving the objections which were purportedly under sub-Section (4) of Section 4 had set out the matter for recording evidence of the parties after framing issues, this fact is evident from the order which is under challenge; wherein the learned Special Judge records:
"..... fnukad 04-09-2019 dks vukosndx.k ,oa vkifRrdrkZvksa dh vksj ls mRrj çLrqr gksus ij çdj.k esas fook|kd fojfpr fd;s x;s ,oa ekeys dks lk{; gsrq fu;r fd;k x;k ........."
7. Be that as it may. Dwelling on the preliminary objections, learned Special Judge taking note of the fact that the matter has been set out for investigation under Section 5 declined to review its order of 2.8.2019 by impugned order, which is being challenged vide present Appeal filed under Section 11 of Ordinance.
8. An objection is raised on behalf of the respondent as to tenability of present appeal. It is urged that unless an order is passed under Section 5 of the Ordinance, a right to appeal under Section 11 does not arise. It is urged that the impugned order is not an order under Section 5 but is an order on an application filed by the appellant raising issue of jurisdiction of the Court to entertain an application under Section 3. It is urged that Section 4 only empowers the Court to pass an ad interim order of ad interim attachment and the final order is passed only after causing investigation of objections under Section 5. It is accordingly urged that the present appeal is pre-mature as the 4 matter is already set out for investigation under Section 5, wherein the final order is yet to be passed.
9. The preliminary objections raised on behalf of the respondent is opposed by learned Senior Counsel appearing for appellants. It is urged that, once it is established that the proceedings initiated under Section 3 is not in consonance with the stipulations contained therein, it is a nullity in the eyes of law which divests the Court of any jurisdiction. It is urged that, the decision on a preliminary objection of the Appellant, therefore, ought to be treated as an order under Section 5 of the Ordinance. Accordingly, it is urged that the Appeal is tenable.
10. Considered the rival submissions.
11. Section 11 of the ordinance provides for:
11. Appeals .(1) The State Government or, as the case may be, the Central Government or any person who has shown cause under section 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 provisions 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 an appeal under this section the High Court may, after giving such parties as it thinks proper an opportunity of being 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 order of attachment to which the appeal relates."
(emphasis supplied) 5
12. However, before dwelling on the scope of Appeal under Section 11, we intend to first dwell on Section 4 and Section 5 of Ordinance.
13. Section 4 of the Ordinance deals with the power of the Court to pass an ad interim order. Sub-Section (1) of Section 4 stipulates that unless for reasons to be recorded in writing, a District Judge or Special Judge as in the present case, is of the opinion that there exist no prima facie grounds for believe that (i) the person in respect of whom the application is made has committed any schedule offence; or
(ii) he has procured thereby any money or other property, pass without delay an ad interim order, attaching the money or other property alleged to have been so procured.
14. Thus, at this stage, i.e., at the stage of Section 4 (1) of the Ordinance when an application under Section 3 is filed and entertained, learned Single Judge in our considered opinion is not required to adjudge the authenticity/competency as to the authorization for making an application. It is only when after a notice is issued under sub-Section (3) of Section 4 and an objection is received under sub-Section (4) of Section 4; whereafter, an investigation is caused under sub-Section (2) of Section 5 which stipulates: "(2) If cause is shown or any objections are made as aforesaid, the District Judge shall proceed to investigate the same, and in so doing, as regards the examination of the parties and in all other respects he shall, subject to the provisions of this Ordinance, follow the procedure and exercise all the powers of a Court in hearing a suit under the Code of Civil Procedure, 1908 (5 of 1908) and any person making an objection under 6 section 4 shall be required to adduce evidence to show that at the date of the attachment he had some interest in the property attached." That, sub- Section (3) of Section 5 of the Ordinance empowers the District Judge (Special Judge in the present case) to pass an order after investigation either making the ad interim order of attachment absolute or withdraw the order. It is while investigating the objections, the Special Judge examine the parties by following the "procedure and exercise all the powers of a Court in hearing a suit under the Code of Civil Procedure 1908." In course whereof, in our considered opinion, the Special Judge can examine as to whether the Authority which authorized the Inspector/Investigating Officer was authorized to issue such authority under Section 3 (1) of the Ordinance. And it is only when final order is passed in the manner prescribed under Section 5 of the Ordinance, a cause would arise for an Appeal under Section 11 of the Ordinance. In view whereof the impugned order cannot be deemed to be an order under Section 5 of the Ordinance as would give rise to a cause for Appeal under Section 11 of the ordinance.
15. The appellants have placed reliance on the decision in Khetrabasi Das v. The State of Orissa [(1991) SCC Online Ori 362 :
1991 Cri LJ 2993], Order dated 25th Day of September 2012 passed by High Court of Karnataka Circuit Bench at Dharwad in B. Nagaratna v. Karnataka Lokayukta (Criminal Petition No. 11239/2012 and Criminal Petition No. 11240/2012), Order dated 28.4.2015 passed by High Court of Judicature at Hyderabad in K. Somasekhar Reddy and others v. The State represented by its S.H.O, Inspector of Police, 7 Kadapa, Tirupathi Range and order dated 6th day of January 2015 passed by High Court of Karnataka (Kalaburagi Bench) in Criminal Appeal No. 3633/2012 in H. Hanumanthappa v. The State by Deputy Superintendent of Police.
16. In Khetrabasi Das (supra), which was a Criminal Revision, the issue was whether when an application is made under Sections 3 and 4 of Ordinance, the person making the application must be specifically authorised by the Competent Authority to sign and verify the application as contemplated under Order 27 Rule 1 of the Code of Civil Procedure, 1908, which entail that in a suit by or against the Government, the plaint or written statement shall be signed by such person as the Government may, by general or special order appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case. Thus, the issue in Khetrabasi Das (supra) was not whether an Appeal under Section 11 of the ordinance would be tenable in absence of an order under Section 5 thereof.
17. Similarly in B. Nagratna (supra), which was a petition under Section 482 Cr. P.C. and in K. Somasekhar Reddy and others (supra) which was a petition under Article 227 of the Constitution, the issue was not as regard to maintainability of appeal in absence of Order under Section 5. Furthermore, in L.H. Hanumanthappa (supra), the learned Single Judge entertained an appeal under Section 11, which was directed against the final order under Section 5 of the Ordinance. 8
18. Thus, the decisions in the cases relied by the Appellants turn on their respective facts and issues arising therefrom and not the question as in the present case as to whether in absence of an order under Section 5 an appeal is tenable, the answer whereof being in the negative; consequently, appeal fails and is dismissed.
19. As regards to the issue whether the authorization by the Director General of Inspector/Investigating Officer to make an application under Section 3 Ordinance was in consonance with the said provision, we leave it to the Special Judge to examine the same under Section 5 of the Ordinance on its merit. No costs.
(SANJAY YADAV) (B.K. SHRIVASTAVA)
JUDGE JUDGE
vivek
Digitally signed by VIVEK KUMAR
TRIPATHI
Date: 2020.08.10 14:31:32 +05'30'