Patna High Court
Naga Ram vs The State Of Bihar & Ors on 23 February, 2011
Author: Ravi Ranjan
Bench: Shiva Kirti Singh, Ravi Ranjan
CIVIL WRIT JURISDICTION CASE No.10455 OF 2010
1-SANJAY KUMAR S/O LATE PHULDEO PRASAD, R/O HOUSE NO. 402,
SHANTI LOK APARTMENT, SHEIKHPURA, P.S.SHASTRI NAGAR, DISTT-
PATNA.........................................................................PETITIONER
Versus
1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, BIHAR,
PATNA
2-PRINCIPAL SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR,
PATNA
3-SECRETARY, CABINET VIGILANCE DEPARTMENT BIHAR,
PATNA......................................................................RESPONDENTS
with
CWJC No.10456 OF 2010
1-SURESH PRASAD S/O LATE SATYANARAYAN PRASAD R/O VILL
SABALI, P.O.KHAJUHATTI, P.S.BAIKHUTNPUR, DISTT-
GOPALGANJ..................................................................PETITIONER
Versus
1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY BIHAR,
PATNA.
2-PRINCIPAL SECRETARY, CABINET VIGILANCE DEPARTMENT BIHAR,
PATNA.
3-SECRETARY, CABINET VIGILANCE DEPARTMENT BIHAR,
PATNA....................................................................(RESPONDENTS)
with
CWJC No.10692 OF 2010
1-WAKIL PRASAD YADAV S/O LATE KISHAN PRASAD YADAV R/O
KRISHNA KUTIR, ABHIYANTA NAGAR, P.S.- RUPASPUR, WEST OF
CANAL, BAILEY ROAD, PATNA.....................................(PETITIONER)
Versus
1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY
2-PRINCIPAL SECRETARY CABINET VIGILANCE DEPARTMENT, BIHAR,
PATNA
3-SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR, PATNA
..............................................................................(RESPONDENTS)
with
CWJC No.10735 OF 2010
1-YOGENDRA KUMAR JAISWAL S/O LATE JAGANNATH PRASAD R/O
SHIVPURI, PROFESSOR'S COLONY ROAD, P.S.- SHASTRI NAGAR, DISTT.-
PATNA- 800023.............................................................(PETITIONER)
Versus
1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, BIHAR,
PATNA.
2
2-PRINCIPAL SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR,
PATNA.
3-SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR, PATNA
..............................................................................(RESPONDENTS)
with
CWJC No.10983 OF 2010
1-NAGA RAM S/O LATE MAHADEV RAM R/O GRAM+P.O.-
BHITBHERWAN, P.S.- GOPALGANJ, DISTT.-
GOPALGANJ................................................................(PETITIONER)
Versus
1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, BIHAR,
PATNA
2-PRINCIPAL SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR,
PATNA
3-SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR, PATNA
..............................................................................(RESPONDENTS)
with
CWJC No.11540 OF 2010
1-NARAYAN MISHRA S/O LATE KRISHNA CHANDRA MISHRA, R/O 36,
VED NAGAR, MADHUKUNJ, RUKANPURA, P.S.-RUPASPUR, DISTT.-
PATNA-800 014............................................................(PETITIONER)
Versus
1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY,
GOVERNMENT OF BIHAR, PATNA
2-THE UNION OF INDIA THROUGH THE HOME SECRETARY,
GOVERNMENT OF INDIA
3-UNION LAW SECRETARY, GOVERNMENT OF INDIA, NEW DELHI
4-PRINCIPAL SECRETARY, HOME DEPARTMENT, GOVERNMENT OF
BIHAR, PATNA
5-PRINCIPAL SECRETARY, VIGILANCE DEPARTMENT, GOVERNMENT
OF BIHAR, PATNA
6-DIRECTOR GENERAL, VIGILANCE INVESTIGATION BUREAU, PATNA
7-INSPECTOR GENERAL, SPECIAL VIGILANCE UNIT, PATNA
..............................................................................(RESPONDENTS)
with
CR.W.J.C. NO. 951 OF 2010
ANIL KUMAR SON OF LATE ISHWAR SHARAN LAL R/O HOUSE NO.54
WEST BOARING CANAL ROAD. P.S.SRI KRISHNAPURI TOWN &
DISTRICT-PATNA............................................................PETITIONER
Versus
THE STATE OF BIHAR TROUGH VIGILANCE...................RESPONDENTS.
with
CWJC No.14044 OF 2010
3
1-SHIVA SHANKAR VERMA S/O RAM PAL VERMA R/O HOUSE NO. 406,
SAUBHAGYA SHARMA PATH, RUKUNPURA, P.S.- RUPASPUR, DISTT.-
PATNA..............(PETITIONER)
Versus
1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, BIHAR,
PATNA
2-THE PRINCIPAL SECRETARY, CABINET VIGTILANCE DEPARTMENT,
BIHAR, PATNA
3-THE SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR, PATNA
..............................................................................(RESPONDENTS)
-----------
For the petitioners : Mr.Y.V. Giri, Sr. Advoacate
Mr.Chittranjan Sinha, Sr.Advocate
Mr.Abhinav Shrivastava, Advocate
Mr.Ravindra Nath Dubey, Advocate
Mr. A.D. Verma, Advocate
Mr. Narayan Mishra (in person)
Mr. Sanjeet Kumar Tiwari, Advocate
Mr. Indu Bhushan, Advocate
Mr. Sanjeev Kumar, Advocate
For the State : Mr. Ram Balak Mahto, Advocate General
Mr. Lalit Kishore, AAG-I
Mr. A. Amanullah, G.A.
Mr. Vikash Kumar, Advocate.
Mr. Krishana Chandra, Advocate.
Mr. Prabhu Narayan Sharma
For Vigilance : Mr. Arvind Kumar, Advocate.
PRESENT
THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH
THE HON'BLE DR. JUSTICE RAVI RANJAN
----------
Shiva Kirti Singh, J. All the eight writ petitions have been
heard together as analogous matters because they contain common
prayers questioning the constitutional validity of Bihar Special Courts
Act, 2009 (hereinafter referred to as the „Act‟) and in particular the
4
validity of Section 5, 13, 14, 15 and 18 of the said Act. The petitioners
have also challenged declarations issued on various dates in respect of
individual petitioners in terms of Section 5(1) of the Act, as a result
whereof cases lodged by Vigilance Department of the State Government
against the petitioners for various offences including offence under
Section 13 (1) (e) of the Prevention of Corruption Act, 1988 (hereinafter
referred to as the „Act of 1988‟) shall be tried by Special Court
established under Section 3 of the Act. In the context of effect of Section
6 (2) of the Act on pending cases, the validity of this provision has also
been seriously challenged on the ground that the Act cannot be made
retrospective because it will expose the petitioners to a greater penalty
than what is envisaged under the Act of 1988, which would violate
Article 20 (1) of the Constitution of India. The other provisions
particularly those under Section 5 and Section 13 have been challenged
mainly on the ground of excessive and unbridled delegation and violation
of Article 14 of the Constitution of India.
2. There is no need in these cases to go into details of facts
because there is no dispute that the petitioners are/were public servants
and are facing criminal cases lodged by the Vigilance Department,
Government of Bihar for various offences including offence under the
Act of 1988, particularly Section 13 (1) (e), on the allegation of having
pecuniary resources or property disproportionate to their known source of
5
income. If the Act had not been enacted or if it is declared ultra vires
then the petitioners will be tried by Special Judge appointed under the
Act of 1988. Petitioners are aggrieved mainly because the cases against
them shall be tried by Special Courts under the Act which may expose
them to a proceeding for Confiscation under Section 13 and other
provisions in Chapter III of the Act.
3. Before adverting to impugned features of the Act, the various
grounds of challenge to their constitutionality and the submissions of the
parties, it would be appropriate to notice that the Act of 1988 was enacted
by the Parliament with the object to consolidate and amend the law
relating to the Prevention of Corruption and the matters connected
therewith. That Act contains detailed provisions including definitions and
is still operational and has not been repealed. Section 4 (4) of that Act
contains a mandate that a Special Judge shall, as far as practicable, hold
the trial of an offence on day-to-day basis. In that Act there is no
provision like Section 11 of the Act which provides that a Special Court
shall not adjourn any trial for any purpose unless the adjournment is
necessary in the interest of justice for which reasons should be recorded
in writing. The Special Court is also required to make endeavour to
dispose of the trial within a period of one year from the date of its
institution or transfer, as the case may be. In the Act of 1988 there is no
6
provision for confiscation of property which is now provided under the
Act as per provisions of Section 13 to 19 contained in Chapter-III.
4. The Preamble of the Act which has been published in the
extraordinary gazette dated 8th February 2010 with a Notification that it
has received prior assent of the President mentions that the Act is to
provide for speedy trial of certain class of offences and for confiscation
of the properties involved. The Preamble also contains further clauses
indicating the need to confiscate ill gotten assets of public servants found
disproportionate to their known source of income and the need to bring
the trial of such public servants to a speedy termination. The Act, in the
definition clause i.e., Section 2 refers to the Prevention of Corruption
Act, 1988 as "Act" and also to the Code of Criminal Procedure 1973 as
the "Code". "Offence" has been defined as an offence of criminal
misconduct which attracts Section 13 (1) (e) of the 1988 Act
independentally or in combination with other provision of the 1988 Act
or any provision of the Indian Penal Code. "Special Court" means
Special Court established under Section 3 of the Act. Other words and
expressions used in the Act are to have the meanings assigned to them in
the Act of 1988 or the Code of Criminal Procedure. Section 21 of the Act
clearly provides that the provisions of the Act shall be in addition to and
not in derogation of any other law for the time being in force and Section
26 gives the Act an over-riding effect over the Act of 1988, the Criminal
7
Law Amendment Ordinance, 1944 or any other law for the time being in
force.
5. Sections 3 and 4 provide for establishment of Special Courts
and cognizance of cases by such Courts. Section 5 vests power in the
State Government and requires it to make a declaration to that effect in
every case in which there is, prima facie, evidence of the commission of
an offence as defined under the Act committed by a public servant.
Section 5 (2) provides that such declaration shall not be called in question
in any Court. As per Section 6, the effect of such declaration is that
prosecution in respect of offence shall be instituted only in Special Court
and where the declaration relates to an offence for which prosecution has
already been instituted and the proceedings are pending in any Court
other than Special Court then such proceeding, notwithstanding anything
contained in any other law in force, shall stand transferred to Special
Court for trial of offence in accordance with the Act. Section 7 spells out
jurisdiction of Special Court for the trial of offence covered by the Act.
According to Section 8, a Special Court shall follow the procedure
prescribed by the Court for the trial of warrant cases before a Magistrate
and unless inconsistent with the Act, the provisions of the Code and the
Act of 1988 shall apply to the proceeding before Special Court. A Special
Court may pass, upon any person convicted by it, any sentence
authorized by law for the punishment of the offence of which such person
8
is convicted. In the Act there is no independent and separate provision
relating to punishment of any offence. Section 9 provides for an appeal
from any judgment and sentence of Special Court to the High Court of
Patna, both on facts and law.
6. Chapter-III of the Act begins with Section 13 which provides
for confiscation of property. This provision has been seriously assailed
by the petitioners on various grounds and shall be dealt with separately.
The power to initiate a confiscation proceeding before an Authorized
Officer has been vested in the State Government which may, on the basis
of, prima facie evidence authorize the public prosecutor to make an
application before the Authorized Officer, if it has reasons to believe that
any person who was or is a public servant has committed the offence, for
confiscation of money and other property which the State Government
believes to have been procured by means of offence. Authorized Officer
has been defined in Section 2 (b) and means any serving officer
belonging to Bihar Superior Judicial Services and who is or has been
Sessions Judge/Additional Sessions Judge, nominated by the State
Government with the concurrence of the High Court for the purpose of
Section 13. An application for confiscation is required to be supported by
one or more affidavits disclosing the grounds for the belief that the said
person has committed the offence and the amount of money and
estimated value of other property believed to have been procured by
9
means of offence and also necessary information and details of such
money and property. Section 14 provides for notice for confiscation.
Section 14(3) permits rebuttal of evidence, information and particulars
brought before the Authorized Officer under Section 14(1) in course of
the trial of guilt of offender by the Special Court. Section 15 provides the
procedure for arriving at findings necessary for confiscation in general or
in certain cases where the money or property specified is held through
any other person and/ or to a certain extent only. However, if the market
price of the property confiscated is deposited then as per proviso to
Section 15(3), the property shall not be confiscated. Section 15(6)
stipulates that the order of confiscation passed under this Section, subject
to any order passed in appeal under Section 17, shall be final and shall
not be called in question in any court of law. According to Section 16,
transfer of any money or property referred to in notice under Section 14
shall be null and void after the issue of notice. Section 17 provides for an
appeal against order of Authorized Officer to the High Court. Such
appeal is required to be disposed of preferably within a period of six
months and stay order, if any, passed in an appeal shall not remain in
force beyond the prescribed period of disposal of appeal as per sub-
section (3) of Section 17. Section 18 provides the power and procedure to
take possession of confiscated money or property. Section 19 which is
the last Section of Chapter-III provides for refund of confiscated money
10
or property as per order of the High Court in appeal or upon acquittal by
Special Court. In case, it is found not possible for any reason to return the
property, the affected person shall be paid the price thereof including the
money so confiscated with the interest @ 5% per annum calculated from
the date of confiscation.
7. As noticed earlier the grievance of the petitioners is mainly
against such provisions of the Act and declaration made under Section-5
which brings the petitioners‟ cases under the purview of the Act to be
tried by the Special Judge and exposes them to the risk of confiscation
proceeding. A faint submission was made at the initial stage of the
arguments that the State Legislature does not have legislative competence
because the Parliament has already enacted the Act of 1988 which
contains in a consolidated form law relating to the Prevention of
Corruption and the matters connected therewith. However, this argument
was based upon an erroneous impression that the prior assent of the
President has not been obtained for enactment of the Act. Once it was
shown from the relevant gazette Notification dated 8th February 2010 that
such assent is available, this ground to challenge the vires of the Act was
not pressed. However, an attempt was made to demonstrate that the
purpose of the Act was already taken care of by the provision in Section
4 (4) of the Act of 1988 that the Special Judge shall, as far as practicable,
hold the trial of offence on day-to-day basis. According to learned
11
counsel for the petitioners this provision was sufficient to take care of
expeditious disposal of trials for offence defined under the Act. So far as
the confiscation of property is concerned, it was submitted that under the
Code of Criminal Procedure, there are sufficient provisions such as
provision for compensation under Section 357 and provision for disposal
of property at conclusion of trial under Section 452 and hence there was
no real need to enact the Act for either of the aforesaid two purposes.
However, the petitioners could not show that the provisions meant to
expedite disposal or for confiscation were exactly of similar nature. The
provisions for expeditious disposal and confiscation in the Act are visibly
and clearly different than those existing from before. To question their
utility or good effect would amount to questioning the wisdom of the
Legislature which is clearly impermissible. Hence, such submissions are
found to be of no significance and do not affect the validity and
constitutionality of the Act or the impugned provisions.
8. Coming to the specific provisions impugned by the petitioners,
the first and foremost attack is upon Sections 5 (1) and 5(2) of the Act.
Assail upon Section 5(1) is on the ground that there are no guidelines
provided by the Legislature and it has been left to the whims and
unguided discretion of the State Government to select or not to select any
particular case involving the offence for purpose of issuing a declaration
12
that it should be tried under the Act. For easy reference Section-5 is
extracted hereinbelow:
5. Declaration of cases to Be dealt with under This Act.- (1) If the
State Government is of the opinion that there is prima-facie evidence of
the commission of an offence alleged to have been committed by a
person, who has held or is holding public and is or has been public
servant within the meaning of section 2(c) of the Prevention of
Corruption Act, 1988 in the State of Bihar, the State Government shall
make a declaration to that effect in every case in which it is of the
aforesaid opinion.
(2) Such declaration shall not be called in question in any Court.
9. On behalf of the petitioners it has been pleaded and
argued that Section-5 (1) of the Act suffers from vice of unreasonable
classification between offences covered by the Act of 1988 triable by
special Judge under that Act and offence defined under the Act which
shall now be tried by a Special Court. According to petitioners such
classification is unreasonable and the purpose shown for such
classification namely confiscation of property acquired by the offence
and speedier trial has no nexus with the classification. Secondly, it has
been argued that the power vested in the State Government for
declaration of cases to be dealt with under the Act is without any
guidelines. It amounts to abdication of legislative power by the
legislature in favour of the State Government, the executive, and hence
violates the Constitution. Lastly, it was submitted that the power vested
in the State Government being unbridled is capable of discrimination
between the cases of particular public servants facing charge of the
13
offence under the Act. The State Government may issue a declaration in
one case and may not issue in another case although the facts for the
purpose of prima facie evidence may be identical.
10. Learned counsels appearing for the petitioners have placed
strong reliance upon judgment of the Supreme Court in the case of State
of West Bengal v. Anwar Ali AIR 1952 SC 75 in support of their plea of
impermissible classification without intelligible differentia. In that case
the constitutional validity of West Bengal Special Court‟s Act 1950 arose
for determination before Supreme Court. The preamble of that Act
declared the purpose of the Act to be- to provide for the speedier trial of
certain offence. Section-5 which was the main provision under challenge
provided for trial by a Special Court, of such offence or classes of
offence or cases or class of cases, as the State Government may by
general or special order in writing, direct. Sub-Section-2 of Section-5
excluded any offence for which the trial had already commenced before
the coming into force of the special Act. Considering the aforesaid
provision the Supreme Court found that the provision enabled
discrimination because the necessity of a speedy trial by itself is too
vague, uncertain and illusive criterion to form the basis of a valid and
reasonable classification. The Court further held that a rule of procedure
laid down by law would come as much within the purview of Article-14
as any rule of substantive law and it is necessary that all litigants, who
14
are similarly situated, are afforded same procedural rights for relief and
for defence without any discrimination. In effect, in that case it was
found that the provision though enabled the State to select some of the
offences or cases to be tried by Special Court, there was no classification
at all in the real sense of the term because the differentiation was not
based on any characteristic which are peculiar to persons or cases which
are subjected to the special procedure prescribed by the Act. The
classification enabled by the Act was found to be based upon no
reasonable or on some differences bearing just and proper relation to the
attempted classification. Thus, in absence of any discernable differentia,
the classification was held to be hostile, discriminatory and contra
Article-14 of the Constitution. For highlighting the aforesaid findings and
related discussions various paragraphs of that judgment were highlighted
before us in order to persuade us to hold that intelligible differentia is a
sine qua non for a valid qualification. We have no difficulty in accepting
the aforesaid legal principle in the context of Article-14 of the
Constitution.
11. The difficulty, however, arises on account of apparent
differences between Section 5 of the Act in question and Section-5 of the
West Bengal Special Court‟s Act 1950. On a careful perusal of Section-5
of the Act under question it is found that offence for the purpose of Act
has been well defined under Section-2(e) of the Act and as a result the
15
declaration by the State Government can relate only to an offence of
criminal misconduct involving or attracting Section-13 (1)(e) of the 1988
Act committed by a person who has held or is holding public office and
is or has been a public servant as defined under the Act of 1988. This
provides an intelligible differentia between the offence covered by
Section-5 of the Act and those left out, although they may involve
misconduct or offence under other provisions of 1988 Act.
12. The next issue, as per settled law is duty to find out whether
such intelligible differentia has any nexus with the declared object of the
Act, i.e., confiscation of the ill-gotten property from the offence and
speedier trial of the offence. Offence under Section-13(1)(e)of the 1988
Act is a criminal misconduct by a public servant which as per the
definition is attracted-"if he or any person on his behalf, is in possession
or has, at any time during the period of his office, been in possession for
which the public servant cannot satisfactorily account, of pecuniary
resources or property disproportionate to his known sources of income".
As per explanation to Section-13(1)(e), "for the purpose of this Section
known sources of income" means, income derived from any lawful
source and such receipt has been intimated in accordance with the
provisions of any law, rules or orders for the time being applicable to a
public servant. The punishment provided for criminal misconduct by a
public servant under Section-13(2) of 1988 Act is imprisonment for a
16
term which shall be not less than one year but which may extend to seven
years and shall also be liable to fine.
13. The purpose of the Act is to expedite the trial and facilitate
confiscation of ill-gotten gains from the offence. For this object the
classification has been done by the legislature so as to bring cases
involving disproportionate money or property within the ambit of the
Act. In view of the purpose of the Act as already noticed, the intelligible
differentia for classification and thereby selection of offence defined, for
the applicability of the Act clearly has nexus with the object sought to be
achieved by the Act.
14. On behalf of petitioners reliance was placed upon judgment of
Supreme Court in the case of In re ART. 143, Constitution Of India,
Etc, Air 1951 SC 332 and in the case of In Re The Special Courts Bill,
1978, 1979 1 SCC 380 in support of well established proposition of law
that the legislature must discharge its primary legislative function itself
and not through others and it cannot abdicate its essential legislative
functions by resorting to excessive and unguided delegation to the
executive. Excessive and unguided delegation to the executive definitely
runs counter to the constitutional scheme of separation of powers
between different wings of the State whereunder it is the obligation of the
legislature to legislate. This principle has been followed in the case of
M/s Devi Das v. State of Punjab, AIR 1967 SC 1895 and in case of
17
Maneka Gandhi v. Union Of India (1978) 1 SCC 248. It was rightly
pointed out on the basis of aforesaid judgments of the Supreme Court and
also in the case of A.N Parasuraman v. State of T.N., (1989) 4 SCC 683
that legislature cannot delegate its essential functions of laying down
legislative policy.
15. On behalf of the State, counter arguments were advanced by
learned Advocate General. It was submitted that the propositions of law
advanced on behalf of petitioners in respect of requirement of intelligible
differentia for a valid classification and necessity of a reasonable nexus
between the object and the differentia are fully met by the provisions in
Section-5 read with the preamble and objects of the Act. To support this
submission, he highlighted the five clauses mentioned in the preamble to
the Act which guided the legislature leading to impugned enactment. The
relevant parts of the preamble disclose that the Government has sufficient
reasons to believe that large number of holders of public offices who are
public servants have accumulated vast property disproportionate to their
income; it is obligation of the State to prosecute such persons and
confiscate their ill-gotten assets; the existing courts of Special Judges
cannot be expected to conclude the trials of such persons speedily
whereas it is imperative for a parliamentary democracy that such
offenders be tried with utmost dispatch and that for the aforesaid purpose
it is necessary to establish Special Courts to be presided over by persons
18
who are or have been Sessions Judges/ Additional Sessions Judges and to
make some procedural changes to avoid delay in final verdict in the
trials, without interfering with the right to a fair trial. Learned Advocate
General placed reliance upon judgment of the Apex Court in the case of
State (Delhi Admin.) v. V.C.Shukla, AIR 1980 SC 1382 in support of his
stand that the impugned provision in Section-5(1) does not suffer from
vice of discrimination, abdication of legislative function or excessive
and unguided delegation. He also placed reliance upon judgment in the
case of R.S.Nayak v. A.R.Antulay, AIR 1984 SC 684 and in the case of
State of Madhya Pradesh v. Shri Ram Singh, AIR 2000 SC 870.
16. The case of State (Delhi Admin.) Vs. V.C. Shukla, inter alia
dealt with validity of Special Courts Act,1979. The main object of that
Act was to provide for speedy trial of a certain class of offences. Nine
Clauses in the preamble of that Act gave out the circumstances and the
maladies which prompted the Legislature to enact that Act. The Act had
been challenged on the basis of Article 14 by raising a grievance that the
procedure was harsher or disadvantageous and the classification for
subjecting certain offences to the Special Court‟s Act was discriminatory.
On a consideration of the object of the Act and various clauses in the
preamble as well as relevant provisions of the Act including Section-5
which empower the Central Government to make a declaration for
19
applicability of that Act on the basis of prima facie case, the Supreme
Court repelled the challenge based upon Article-14.
17. In the aforesaid case the Special Act was challenged also on
the ground of vice of excessive delegation of powers. After extracting
Sub-Section- (1) and (2) of Section-2 of that Act in paragraph-80, the
Apex Court discussed the law on the subject including judgment in the
case of Kathi Ranning Rawat v. State of Saurashtra, AIR 1952 SC 123
and rejected the challenge after elaborate discussion of all the relevant
aspects. The Apex Court extracted and relied upon the following passage
from the judgment in the case of V.C. Shukla Vs. State of Delhi through
CBI, AIR 1980 SC 1962:-
" In fact, this Court has held in a number of cases that where a
power is vested in a very high authority, the abuse of the power is
reduced to the minimum"
18. The Court held that the power vested under Section-5 was
guided by the provisions and stipulations in that Section as well as the
guidelines emanating from the preamble of that Act. The judgment in the
case of R.S. Nayak v. A.R. Antulay (Supra) was cited for law of
interpretation stated in paragraph-18 of the judgment that question of
construction arises only in the event of an ambiguity and the Court is
entitled to ascertain the intention of the Legislature to remove the
ambiguity by construing the provision of the statute as a whole to undo
the mischief for which the Legislature enacted the statute. There is no
20
controversy that when two views are possible in respect of a statutory
provision, it is the duty of the Court to adopt one which would advance
the object of the statute. The judgment in the case of State of Madhya
Pradesh v. Shri Ram Singh (Supra) supports the aforesaid view and in
paragraph-7 corruption has been compared to all the dreaded diseases
such as cancer and HIV leading to AIDS which are seemingly incurable
and can ruin a polity.
19. On behalf of State, it was submitted that so far as challenge to
Section-5 is concerned, it must fail in view of discussions contained and
law laid down in the aforesaid judgments. It was submitted that power of
finding out, prima facie case for the purpose of required declaration
under Section 5 has been vested in the highest authority, the State
Government and hence its misuse should not be assumed. It was pointed
out that objects and clauses of the preamble of the Act also contain
guidelines and the legislative policy has been clearly laid down, hence,
there is no merit in the submissions that power delegated to the state is
excessive or unguided. It was further pointed out that by very definition
of the term "offence" the class of cases which can be covered under the
Act is clear and based upon intelligible differentia with cases left out and
the characteristics of the offence are such as would clearly have a nexus
with the object of the Act which requires expeditious disposal of cases
relating to the offence covered by the Act and whenever materials
21
warrant, to initiate confiscation proceeding as per Section-13, so that
property ill-gotten by means of the offence are taken over by the State.
There appears merit in the aforesaid submissions insofar as challenge to
validity of Section-5 is concerned. Similar provisions were held valid in
the case of State (Delhi Admin.) v. V.C. Shukla as well as in a judgment
by Division Bench of Orissa High Court in the case of Dibyadarshi
Biswal and Ors v. State of Orissa and other analogous cases, dated
September 16, 2010. State has placed special reliance upon this judgment
because similar provisions in the Orissa Special Court‟s Act, 2006 had
been challenged as unconstitutional and the challenge was repelled. No
doubt, learned counsels for the petitioners tried to distinguish that
judgment by referring to some differences in the preamble of Orissa Act
vis-à-vis the Bihar Act under consideration but those differences are
merely cosmetic, superfluous and not of any substance.
20. It is useful to record here that in the Orissa case (Dibyadarshi
Biswal and Ors v. State of Orissa and others) the provisions in Section 5
were similar and in order to meet the argument that the State Government
could still pick and choose specific cases of persons while ignoring those
of others, the Orissa Government had filed an affidavit making it clear
that the State Government shall mandatorily make a declaration in all
cases relating to the offence and its role was limited to satisfy itself that
the ingredients of Section-5(1) of the Special Court‟s Act are satisfied.
22
Once such ingredients are found satisfied, the State Government shall
make a declaration in all cases. In order to repel any doubt on this issue,
an affidavit was filed on behalf of the State of Bihar in CWJC No. 10455
of 2010 to fully clarify its stand. According to that affidavit, all pending
cases in which Section 13(1) (e) of the 1988 Act are involved can be
categorized under three categories: (i) cases in which the court concerned
has already taken cognizance after sanction by the administrative
department, (ii) cases in which concerned department has already granted
sanction for prosecution but no cognizance has been taken and (iii) cases
in which investigation is under progress after institution of a case.
According to the affidavit, the State Government will be
issuing declaration in all cases under the categories (i) and (ii). So far as
cases under the category (iii) are concerned, the State Government will
issue the declaration as soon as it comes to a conclusion that the public
servant concerned has committed offence under Section 13(1) (e) of the
1988 Act. It has further been categorically stated that no cases having
ingredients of Section 13(1) (e) of the 1988 Act will be allowed to be
tried in other courts, except in the Special Court constituted under the
Act. Such a stand takes care of any apprehension of discrimination in the
matter of issue of declaration between different cases involving offence
under Section 13(1)(e) of the 1988 Act.
23
21. To assail Sub-Section-(2) of Section-5 which provides that
declaration made by the State Government under Section-5(1) shall not
be called in question in any Court, the only argument advanced was that
constitutional power of judicial review vested in the High Court cannot
be curtailed by Legislation. The State has clarified that such provisions
are common to many similar statutes and the expression "Court" will not
include High Court of the Supreme Court when they exercise
extraordinary constitutional power of judicial review. In view of such
clear stand of the State the challenge to the constitutionality of this
provision must fail. It hardly requires any clarification that such
provision cannot affect the extraordinary constitutional jurisdiction of
judicial review vested in the High Court or Supreme Court.
22. The constitutional validity of Section-6 (2) of the Act has been
questioned on the ground that making the provisions of the Act
retrospective so as to cover the cases already pending in the Courts or
cases in which the occurrence was prior to coming in force of the Act
will violate Article-20(1) of the Constitution of India because the affected
persons like petitioners will be exposed to harsher provisions relating to
confiscation which would amount to a greater penalty than what was
prescribed for the offence under the Act of 1988. Sub-Section-(2) of
Section-6 reads thus:-
"Where any declaration made under section-5 relates to an
offence in respect of which a prosecution has already been instituted
24
and the proceedings in relation thereto are pending in a Court other
than Special Court under this Act, such proceedings shall,
notwithstanding anything contained in any other law for the time being
in force, stand transferred to Special Court for trial of the offence in
accordance with this Act."
23. Article-20 provides for certain protection in respect of
conviction for offence. It prohibits conviction for any offence which was
not violation of any law at the time of commission of the act charged as
offence and also prohibits infliction of a penalty greater than what could
have been inflicted under the law in force at the time of the commission
of the offence. The Act does not alter the punishment for the offence as
provided under the 1988 Act and hence the issue is narrowed down to
find out whether the provisions in Chapter-III of the Act, particularly in
Section-13 providing for confiscation of property amount to harsher
penalty for the accused who allegedly committed the offence before
coming into force of the Act on 8th February 2010. According to learned
counsel for the petitioners, confiscation of property by virtue of Section-
13 amounts to penalty by causing very serious consequences so as to
affect even property standing in the name of others, allegedly procured
by means of the offence, than what was permissible or possible under the
law as it stood prior to enforcement of the Act. Such provisions are,
therefore, violative of Article 20(1) of the Constitution of India.
Elaborating the aforesaid submission, it was contented that the effect of
confiscation is too harsh, expropriatory and confiscatory and hence, in
25
context of a person facing charges for offence, it cannot be permitted to
be retrospective. It was pointed out that affected property or money may
at times be an amalgam of property acquired by lawful means as well as
by alleged unlawful means, i.e., by means of the offence. In such
circumstances, it was submitted that the principle of disposing of stolen
property under the provisions of Cr.P.C cannot be held applicable to such
property which requires further adjudication as to how much of the
property or which specific property would be covered by the expression
"property procured by means of the offence".
24. According to learned counsel for the petitioners the provisions
of Chapter-III cannot be described simply as procedural provisions which
may generally be permitted to be applied retrospectively because no
person has vested right in matters of procedure simplicitor. To support
this submission it was pointed out that effect of Section-16 is to take
away rights to transfer any money or property mentioned in a notice
under Section-14 because such transfer has been rendered void if the
property is subsequently confiscated under Section-15. Similarly, it was
pointed out that under Section-18 the authorized officer has been
empowered to take forceful possession of the confiscated property which
is likely to result in being thrown out on the street from dwelling units
unless the market price of the property is deposited with the authorized
officer as per proviso to Section-15(3). It was pointed out that although
26
appeal has been provided against order of confiscation to the High Court
but as per Section 17(3) the appeal is to be disposed of preferably within
a period of six months and the stay order, if any, in the appeal shall not
remain in force beyond the period prescribed for disposal of appeal.
According to learned counsel for the petitioners such provisions as
indicated above are substantive provisions affecting the accused persons
adversely and seriously only because of retrospective application of
provisions for confiscation which were not in existence earlier.
25. On behalf of State it was submitted that although the
provisions for confiscation are new provisions but they do not amount to
any penalty for the offence and are, hence, not affected by the protection
in Article-20(1) of the Constitution which bars infliction of a penalty
greater than what might have been inflicted as per law at the time of the
commission of the offence. According to State the confiscation
proceeding is an independent judicial proceeding to be conducted by the
Authorized Officer and it cannot be treated to be a part of the criminal
proceeding against the accused which is required to be tried by Special
Court under the Act.
26. The issue as to whether confiscation of property provided
under the Act would amount to a penalty for the offence or not appears to
be a complex issue because the Act of 1988 or the Indian Penal Code
prescribing punishments have not been amended by the Act. Those Acts
27
use the expression "punishment" for prescribed offence and not the word
"penalty" but in the context in which the word penalty has been used in
Article-20 (1) of the Constitution, it must be treated as analogous to the
word "punishment" prescribed for an offence which shall cover
punishment of imprisonment as well as fine prescribed for any offence.
The question as to whether confiscation under the Act would amount to
punishment for the offence or not, now becomes simple to be answered.
27. The word penalty or punishment in context of a criminal
offence is a well understood concept. Once an accused is found to be
guilty, he is punished either by depriving him of his personal liberty by
way of imprisonment which puts restriction upon his freedom to move
around freely or else he is put to monetary loss by imposition of fine.
Monetary loss by way of punishment would happen only in a case where
money legally belonging to the accused or his estate is to be paid to the
State. The concept of confiscation proceeds on an entirely different
footing. In confiscation as contemplated under the Act the deprivation of
money or property is on the hypothesis that it does not legally belong to
the accused because it is ill-gotten property procured by means of the
offence which in the case of a public servant amounts to breach of trust
by him qua his employer, the State. Once this hypothesis is carried to its
logical corollary by proving the necessary ingredients so as to show that
the property or money in question was procured by means of offence then
28
confiscation of such property or money cannot amount to depriving the
accused or the concerned public servant either of his personal liberty or
of any property lawfully belonging to him. Hence, confiscation of money
or property as provided under the Act cannot be held to be a punishment
to the delinquent.
28. The aforesaid view stands supported by a judgment of Privy
Council in the case of Attorney General for Hong Kong V. Reid and
others reported in All E.L.R (1994) 1, page 1. The relevant principle of
equity as enunciated in the said judgment is as follows:-
"When a bribe is accepted by a fiduciary in breach of his duty
then he holds that bribe in trust for the person to whom the duty was
owed. If the property representing the bribe decreases in value the
fiduciary must pay the difference between that value and the initial
amount of the bribe because he should not have accepted the bribe or
incurred the risk of loss. If the property increases in value, the
fiduciary is not entitled to any surplus in excess of the initial value of
the bribe because he is not allowed by any means to make profit out of
breach of duty."
29. This proposition was derived on the ground that equity acts in
personnem and insists that it is unconsonable for a fiduciary to obtain and
retain a benefit in breach of duty. A fiduciary who received the bribe in
breach of duty must pay an account for the bribe to the person to whom
that duty was owed. The aforesaid judgment in the case of Attorney
General for Hong Kong V. Reid and others was rightly relied upon by
Mr. Amanullah, learned counsel for the State appearing in one of the
cases in support of the contention that confiscation of property procured
29
by means of the offence by a public servant cannot amount to any legal
loss to the accused and hence confiscation under the provisions of the Act
does not amount to any penalty or punishment. In that view of the matter
the impugned provision in Section-6(2) of the Act is found to be not in
violation of Article 20(1) of the Constitution of India. It is well
established in law that a competent Legislature has the power to make
laws with retrospective effect also unless such Act violates constitutional
mandate and takes away vested right contrary to law or requirements of
fairness. In that view of the matter challenge to constitutionality of
Section-6(2) of the Act must fail.
30. So far as constitutional validity of Section-13 and other
provisions relating to confiscation in Chapter-III of the Act are
concerned, a major part of the grievances and submissions advances on
behalf of the petitioners have already been noted in context of challenge
to Section-6 (2) of the Act. In that context, it has been found that
confiscation under the Act of property procured by means of the offence
cannot be treated as penalty or punishment because even if such property
is in the name of accused or some other person, on account of equitable
principles recognized by the Courts, over such property the State would
have lawful claim. Specific grounds for challenging the vires of Sections-
13 to 19 in Chapter-III of the Act are on the ground of alleged violation
of Article-14 of the Constitution. On behalf of the petitioners it has been
30
submitted that procedure prescribed for adjudicating the issues relating to
confiscation of property suffers from clear arbitrariness because--(1) The
confiscation, including taking over of possession of confiscated property
can precede even investigation as well as determination of guilt in the
trial; (2) Authorized Officer for adjudicating confiscation proceeding is
often the same Sessions Judge/Additional Sessions Judge who preside
over the Special Court for conducting the trial and in such eventuality
there is every likelihood of prejudice and bias being created for the trial
on account of prior knowledge and adjudication in respect of defence of
the accused which has to be disclosed for contesting State‟s claim for
confiscation; (3) Even if the High Court finds good case and grants stay
of order for confiscation in the appeal provided under Section-17 of the
Act, such stay will cease to be in force if the hearing of the appeal is not
concluded within the time period fixed by Section-17(3) of the Act and
the person aggrieved by order of the Authorized Officer will have to
suffer evil consequences for no fault of his; (4) The provision for refund
of confiscated money or property is unreasonable and harsh because State
Government in spite of losing in the confiscation matter on account of
appellate order or acquittal by the Special Court, may not return the
property of the aggrieved person and the interest @ 5% per annum on the
value of the property cannot be a sufficient compensation for the wrong
caused to the aggrieved persons specially if he with his family are
31
inflicted with humiliation and suffering on account of being thrown out
of a dwelling house in which they ordinarily reside. This would also
violate right to life befitting a human person guaranteed by Article-21 of
the Constitution; (5) The requirement and compulsion of disclosing
defense by the accused for contesting the confiscation proceeding is
violative of guarantee against self incrimination flowing out from
Article-20 (3) which prohibits compelling an accused to be a witness
against himself.
31. On behalf of the petitioners it was shown that Section-13
empowers the public prosecutor to make application to the Authorized
Officer for confiscation even if the Special Court has not taken
cognizance of the offence and the matter may still be at the stage of
investigation. On behalf of the State it was submitted that taking of
cognizance or investigation of the offence may remain pending on
account of various peculiar reasons of a case but the State Government
which is a responsible and high authority can resort to confiscation
proceeding only on the basis of prima facie evidence when such evidence
furnishes reasons to believe that the public servant or holder of a public
office has committed the offence. It has been further highlighted that
application for confiscation is required to be accompanied by one or
more affidavits disclosing the grounds for belief that the concerned
person has committed the offence as well as the amount of money and
32
estimated value of other property believed to have been procured by
means of the offence. The location of the money and other property
procured by means of the offence as well as necessary particulars also
have to be furnished through the application. According to learned
Advocate General, these provisions contain sufficient safeguards against
initiation of a baseless and vexatious confiscation proceeding, arbitrarily
without any material. He has further submitted that the grievance of the
petitioners that confiscation proceeding should be after the conclusion of
trial is based upon a misconception that confiscation proceeding and trial
have to be part of the same proceeding. He again emphasized that the
property sought to be confiscated through the process prescribed in
Chapter-III of the Act is property believed to have been procured by
means of the offence and hence property lawfully belonging to the State.
Hence, in this context, the ordinary principles of criminal jurisprudence
shall have no application because in ordinary proceedings confiscation is
generally of property belonging to the accused or an abettor which is
taken over by the State by way of punishment.
32. In the light of the nature of property sought to be confiscated
under the Act, the submissions advanced on behalf of the State are found
to have merit. The provision in Section-13 of the Act and related
provisions in Chaprter-III cannot be faulted on account of ordinary
principles of criminal jurisprudence that penalty or punishment must
33
follow determination of guilt of the accused. The Act guarantees fairness
to the accused by making order of confiscation subject to appeal to be
determined by the High Court as well as subject to the final
determination of guilt of the accused in trial. Hence, the general criticism
that the procedure for confiscation should be struck down as patently
arbitrary and violative of Article-14 of the Constitution is not found
acceptable. As noticed earlier there is provision for notice for
confiscation and the proceeding for confiscation is to be adjudicated by
the Authorized Officer who has to be a Sessions Judge or Additional
Sessions Judge. There is fair opportunity provided for considering the
case of the delinquent before passing an order of confiscation.
33. So far as likelihood of bias is concerned, it is true that
generally a trained judicial mind of a person holding post of Sessions
Judge/Additional Sessions Judge is not expected to suffer from prejudice
on account of hearing of confiscation matter as well as conducting the
trial of an accused under the Act. But requirement of fairness which
flows from Article-14 of the Constitution has clearly guided the
Legislature in entrusting the confiscation proceeding to an Authorized
Officer whereas the trial has been entrusted to the Special Court. Both the
terms i.e., "Authorized Officer" and "Special Court" have been
separately defined and this appears to have a distinct purpose to ensure
that confiscation proceeding is not entrusted to the Special Court which is
34
only to conduct the trial. Hence, the State Government and the High
Court are expected to keep this distinction in mind and make sure that
confiscation proceeding and criminal trial against accused of an offence
are not conducted by the same judicial officer. This alone can take care of
likelihood of bias in the mind of the Special Court. Otherwise, a
presiding Judge who has already formed an opinion on the merits of the
allegations regarding disproportionate assets in course of a confiscation
proceeding may not remain unbiased against the same delinquent in
course of criminal trial.
34. So far as evil and arbitrary consequences flowing out of
provision in Section-17(3) are concerned, the apprehension on face of it,
appears to be justified. Prima facie, it appears that the life of the stay
order granted by the High Court is confined to only six months. If that
would have been the meaning of the relevant provision, it would have
been open to challenge because even if the appeal has merits and is not
disposed of by the High Court within six months for no fault of the
appellant, he would suffer serious evil consequences for no fault of his.
However, on a careful reading of Sub-Section-(3) it becomes clear that
the Legislature has not given a definite and fixed period of six months as
the time for disposal of appeal. The actual words are as such-- "An
appeal preferred under Sub-Section-(1) shall be disposed of preferably
within a period of six months from the date it is preferred, and stay order,
35
if any, passed in an appeal shall not remain in force beyond the
prescribed period of disposal of appeal". The use of the word
"preferably" is a definite pointer that the Legislature has only indicated
its preference that the appeal should be disposed of within a period of six
months but it also permits disposal of the appeal beyond the period of six
months. Therefore, it will not be proper to construe that the prescribed
period of disposal of appeal is only six months. Hence, in our considered
view six months is not the prescribed period of disposal of appeal. It is
only desirable and preferable that the appeal should be disposed of within
six months. No doubt, stay order is not to remain in force beyond the
prescribed period of disposal of appeal but in view of the aforesaid
discussion and the conclusion that there is no prescribed period of
disposal of appeal, the stay order passed by the High Court will not lose
its force automatically on expiry of any particular period. This
interpretation is to be preferred in order to save the provision from the
vice of unreasonableness by causing undue hardship upon the appellant
for no fault of his. In appropriate case where the accused-appellant delays
hearing of the appeal, High Court may be moved for vacating the order of
stay.
35. So far as attack on reasonableness and validity of Section-19 is
concerned, there appears some merit in the contention advanced on
behalf of the petitioners that non return of property for any reason and
36
compensation @ 5% interest per annum may not be reasonable at least in
cases where there are no good reasons for not returning the property even
after it has been found that the property lawfully belongs to the
delinquent/accused. In such an eventuality the compensation by way of
interest @ 5% per annum will also not be adequate because with such
rate of interest, it is not possible at a later date to buy similar property in
ordinary circumstances. There can be no justification to cause any
hardship or loss to the delinquent or the accused once the confiscation
proceeding fails. The requirement of Article-14 varies in different
situations and it is the constitutional obligation upon the State that it shall
not be unreasonable and harsh to anyone for no good reasons. Therefore,
Section-19 requires clarification by way of interpretation that ordinarily,
when the confiscation is modified or annulled by the High Court in
appeal or where the person affected is acquitted by the Special Court, the
money or property or both shall be returned to the person affected. For
not returning the property the State shall have to seek permission of the
High Court or the Special Court as the case may be to return only the
price of the property and such permission shall be granted only when the
State is able to show good reasons as to why it is not possible to return
the property. So far as the rate of interest of 5% per annum is concerned,
it is clearly insufficient and amounts to punishing an innocent person for
no good reasons. Hence, in case the confiscated property is not returned
37
by showing good reasons that it is not possible to do so, the interest
payable must be at the usual bank rate prevailing during the relevant
period for a loan to purchase or acquire similar property. This direction is
necessary in order to save the vires of Section-19 of the Act. Otherwise,
the relevant provisions would fall foul of Article-14 of the Constitution
of India.
36. As indicated earlier the petitioners have raised a grievance
against forceful eviction from dwelling house ordinarily occupied by the
delinquent/accused prior to final determination of guilt in course of trial
for the offence. As noticed, Section-18 of the Act authorizes taking
forceful possession of the property if the delinquent refuses or fails to
comply with the order for handing over possession of the confiscated
property. This provision makes no distinction between properties found
fit for confiscation. All the properties subjected to confiscation
proceeding whether they are dwelling house or other kinds of property
have been treated alike. According to the petitioners an exception should
have been made in respect of a dwelling house or unit where the
delinquent/accused ordinarily resides himself with or without his family
because confiscation has been made subject to final determination of
innocence or guilt of the accused in trial. Such a differential treatment to
a dwelling house or unit has been claimed on the ground that dwelling
house meets one of the basic needs of humans and it would be arbitrary
38
to deprive a delinquent of such basic requirement when the trial is still
pending.
37. On the other hand, on behalf of the State it was submitted that
entire confiscated property has to be treated similar and not making of an
exception for a dwelling house or unit from the provisions of Section-18
does not violate any constitutional provision.
38. The argument, advanced on behalf of the petitioners, prima
facie, appears attractive because it cannot be denied that housing is a
basic need of human beings. Unjustified deprivation of a dwelling
house/unit can have serious ill effects. However, this argument suffers
from a fallacy. A classification between different properties ultimately
found fit for confiscation in a confiscation proceeding under the Act will
be a constitutional requirement only if the classification is essential
otherwise two dis-similar classes would be treated as similar. The
classification will not be justified or permissible even if it meets the first
requirement indicated above, unless it can be held that the classification
has reasonable nexus with the object sought to be achieved by the Act.
The object of the Act has already been noticed earlier. One of the
relevant purposes is to confiscate all the ill gotten money or property. If
such property includes a dwelling house or unit also, can there be any
requirement of classification so as to exclude the house property only on
the ground of hardship. In our considered view, under the scheme of the
39
Act, such exclusion bears no reasonable nexus with the object of the Act,
rather it would, to a large extent, frustrate the object of the Act. We have
already considered in detail the provisions relating to confiscation
including provision for appeal and stay and have held those provisions to
be reasonable and valid. If after undergoing the reasonable procedure of
confiscation proceeding, including appeal, a dwelling house or unit of the
delinquent is found to be ill-gotten property which cannot be accounted
on the basis of lawful income of the delinquent, there can be hardly any
justification to allow the delinquent to continue in enjoyment of such ill-
gotten property only because the trial is still pending. The Legislature has
taken precautions to expedite the trial and if it is made to linger in spite
of such provisions, the accused would always be at liberty to take
remedial action and get the trial expedited. If the grievance raised on
behalf of the petitioners is accepted as genuine and an exception is made
in respect of a dwelling house, it is likely to have a delaying effect upon
the trial and may also lead to unnecessary complicated issues as to how
many houses can be said to be occupied by the accused himself so as to
be exempted on the plea that he ordinarily resides there himself with or
without his family. In our considered view, the plea raised on behalf of
the petitioners as noted above, under the scheme of the Act does not have
any merit and it is not possible to hold that non exclusion of residential
house property from the purview of provisions for taking forceful
40
possession of confiscated property would violate Articles 14 and 21 of
the Constitution of India.
39. The last and the only important contention which remains to
be considered is that the confiscation proceeding as provided under the
Act should not be permitted because it will leave no option to the
affected person but to disclose his defence prior to holding of the trial
and such compulsion upon him to disclose true state of affairs in the
confiscation proceeding will violate the right guaranteed by the Article-
20(3) of the Constitution.
40. Prima facie, the aforesaid submission appears to be attractive
but it has no substance. Article-20 is in respect of trial and punishment
for offences. Clause (3) of the Article-20 protects the accused in course
of trial for an offence wherein he cannot be compelled to be a witness
against himself. So far as the confiscation proceeding under Chapter-III
of the Act is concerned, as discussed earlier it is a separate proceeding by
an Authorized Officer and not by the Special Court dealing with the trial.
In confiscation proceeding, giving an opportunity of defence to the
delinquent cannot be construed as compelling him to be a witness against
himself. Considering the nature of the two proceedings, both can be
maintained together or one after another and no provision in the Act
compels the accused to be a witness against himself so far as offences are
concerned. Learned counsel for the State has rightly placed reliance upon
41
the judgment of the Supreme Court in the case of State of Bombay v.
Kathi Kalu, AIR 1961 SC 1801 wherein a constitution Bench held that
Section-27 of the Evidence Act was valid because self incriminatory
statement given by accused is without compulsion. In any event, the
order of confiscation has been made subject to a final judgment in the
trial by the Special Court and therefore if in a peculiar case the accused is
advised, in his interest, not to disclose the true state of affairs in the
confiscation proceeding but to reserve it only for the criminal trial, he
would ultimately suffer no loss. He is not compelled but only given an
opportunity to take a defence to overcome an order of confiscation.
Further, if the accused has sufficient interest to expedite the criminal
trial, there is no presumption that in all cases confiscation proceeding will
be held and concluded prior to the taking of defence in the criminal cases.
Even if the aforesaid considerations are brushed aside, as indicated earlier
the right guaranteed by Clause-(3) of Article-20 of the Constitution is
only in respect of trial of an offence and not for civil or other proceeding
such as a proceeding for confiscation under the Act.
41. No other issue relating to vires or constitutionality of the Act
remains to be decided. In order to be fair to the counsels for the
petitioners and the State it is indicated that some other judgments which
follow the judgments noticed earlier were also cited but they have not
42
been considered separately because the proposition of law was found to
be well established or covered by the judgments already noticed.
42. In CWJC No. 10735/2010 an Interlocutory Application
bearing no. 10468/2010 was filed on 15th December 2010 after the
hearing on the vires of the Act had already commenced on 9th December
2010. The Court indicated its displeasure and unwillingness to decide the
vires of the Bihar Special Court‟s Rules 2010 which was sought to be
challenged through the said I.A. No. 10468/2010. Hence that I.A. was not
pressed in view of our observation that we shall grant liberty to the
petitioners that if the need arises they may challenge the legality of the
Rules at a later stage. We, accordingly, grant such liberty to the
petitioners. It may be recorded here that in CWJC No.11540 of 2010 the
petitioner Narayan Mishra has challenged the Rules also on the same
grounds on which the Act has been challenged but as indicated above we
have not gone into the vires or legality of the Rules and hence the liberty
granted above will also be available to the aforesaid petitioner, Narayan
Mishra. Although we have given the liberty aforesaid but sometimes it is
useful to observe certain facts in order to avoid unnecessary litigation. In
respect of Bihar Special Court‟s Rules 2010 a grievance was raised that
Rule 12(f) envisages a procedure which is contrary to procedure
prescribed for trial of warrant cases before a Magistrate which has been
prescribed by Section-18(1) of the Act. It goes without saying that in case
43
of conflict between Act of Legislature and Rules framed under the Act,
the provisions of the Act will prevail. The State of Bihar is expected to
take note of the aforesaid submissions in its own interest and amend the
relevant Rule if there is any need felt for the same.
43. In the final result, we uphold the validity of the Bihar Special
Court‟s Act, 2009 and on that account all the writ petitions are dismissed.
However, while repelling the challenge to the vires of the Act, we have
clarified or interpreted the relevant provisions of the Act including
Section-17 and 19 which shall be binding on the State in order to protect
the constitutional validity of the concerned provisions and the Act.
44. There shall be no order as to costs.
I agree (Shiva Kirti Singh, J.)
Dr. Ravi Ranjan, J.
(Dr. Ravi Ranjan, J.) Patna High Court The 23rd of February 2011 Md. Perwez Alam/AFR