Patna High Court
Abneshwar Prasad @ Abaneshwar Prasad ... vs The State Of Bihar Through Inspector Of ... on 27 June, 2018
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
Patna High Court CR. APP (SJ) No.3198 o f 2017 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.3198 of 2017
Arising Out of PS.Case No. -9 Year- 1994 Thana -VIGILANCE District- PATNA
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1. Mukteshwar Prasad @ Mukteshwar Ram, Son of late Chhangali Ram, permanent resident of Village- Sadipur, P.S. Pirpainti, District- Bhagalpur, Present resident of Sinha Sadan, Yarpur, Road No. 1, P.S. Gardanibagh, District- Patna.
.... .... Appellant/s Versus
1. The State of Bihar through Inspector of Police, Vigilance Investigation Bureau, Bihar, Patna .... .... Respondent/s with =========================================================== Criminal Appeal (SJ) No. 3079 of 2017 Arising Out of PS.Case No. -9 Year- 1994 Thana -VIGILANCE District- PATNA ===========================================================
1. Abneshwar Prasad @ Abaneshwar Prasad through his Power of Attorney Holder Smt. Rati Devi,
2. Dineshwar Prasad Sinha,
3. Ratneshwar Prasad Sinha,
4. Rajeshwar Prasad Sinha,
5. Someshwar Prasad Sinha, all sons of Mukteshwar Prasad @ Mukteshwar Ram,
6. Rati Devi, wife of Mukteshwar Prasad @ Mukteshwar Ram,
7. Rina Sinha, wife of Ratneshwar Prasad Sinha, all residents of Sinha Sadan, Yarpur, Road No.1, P. S. -Gardanibagh, District-Patna.
.... .... Appellant/s Versus The State of Bihar through Inspector of Police, Vigilance Investigation Bureau, Bihar, Patna .... .... Respondent/s =========================================================== Appearance :
(In CR. APP (SJ) No.3198 of 2017) For the Appellant/s : Mr. Bindhyachal Singh-Advocate Mr. Prashant Sinha-Advocate For the Vigilance : Mr. Ramakant Sharma-Sr. Advocate Mr. Rakesh Kumar Sharma-Advocate Mr. Amresh Kumar-Advocate Mr. Vinod Kumar-Advocate Mr. Ramendra Kumar-S.D.P.O. for Vigilance Mr. Santosh Kumar Pandit-Advocate (In CR. APP (SJ) No.3079 of 2017) For the Appellant/s : Mr. Bindhyachal Singh-Advocate Mr. Prashant Sinha-Advocate For the Vigilance : Mr. Ramakant Sharma-Sr. Advocate =========================================================== Patna High Court CR. APP (SJ) No.3198 o f 2017 2 CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER Date: 27-06-2018 Cr. Appeal (S.J.) No.3198 of 2017 wherein Mukteshwar Prasad @ Mukteshwar Ram is the appellant and Cr. Appeal (S.J.) No.3079 of 2017 wherein Abneshwar Prasad @ Abaneshwar Prasad, Dineshwar Prasad Sinha, Ratneshwar Prasad Sinha, Rajeshwar Prasad Sinha, Someshwar Prasad Sinha, Rati Devi and Rina Sinha, who happen to be descendants/ wife/ daughter-in-law of Mukteshwar Prasad @ Mukteshwar Ram, are the appellants commonly originate against the order dated 11.08.2017 passed by the Additional Sessions Judge-X-cum-Authorized Officer, Court No.II, Vigilance Patna relating to Special Case No.01 of 2015 arising out of Vigilance P.S. Case No.09 of 1994, whereby and whereunder the learned lower Court had allowed confiscation of properties so detailed under Para- 'f' of the petition from serial nos.1 to 220 and for that, the District Magistrate, Patna has been authorized to take possession thereof, in accordance with Section 18(2) of the Bihar Special Courts Act.
2. The controversy persisting on record, in my considered opinion, needs to be adjudicated upon by the Division Bench on account of being of public importance as well as the legal puzzle involved therein and further, there happens to be absence of authoritative verdict, whereupon the details of the pleading are not at Patna High Court CR. APP (SJ) No.3198 o f 2017 3 all warranted, save and except necessary to justify the finding.
3. Mukteshwar Prasad @ Mukteshwar Ram the delinquent having been employed as a Junior Engineer, accumulated moveable as well as immoveable property disproportionate with his income, whereupon raid was conducted and during course thereof, the relevant documents relating to acquisition of the properties were found seized, whereupon Vigilance P.S. Case No.09 of 1994 was registered under Section 13(2) read with Section 13(1)(e) of the P. C. Act and as is evident, the aforesaid Mukteshwar Prasad @ Mukteshwar Ram has been convicted and sentenced, which is the subject matter of Cr. Appeal (S.J.) No.1065 of 2016.
4. While the aforesaid criminal prosecution was going on, after promulgation of Bihar Special Courts Act, 2009, the instant prosecution has been initiated by way of filing complaint in accordance with Section 13 of the Act, detailing the property (moveable or immoveable property) for confiscation and further, impleaded all the persons concerned in whose name, acquisition was made by the delinquent out of whom, one happens to be his son Abneshwar Prasad. All the O.Ps./ appellants have their show-cause pleading and claiming the property being their personal acquisition.
So far plea of others are concerned, that can be adjudicated upon Patna High Court CR. APP (SJ) No.3198 o f 2017 4 without any brittleness, but the matter in its entirety is to be adjudged, so the plea of Abneshwar has to be perceived along with others.
5. It is evident from the pleading of the Abneshwar Prasad that he had gone to U.S.A. on 01.01.1984, after getting scholarship from Florida University and then thereafter, he stayed there, as got his employment and then, took American Citizenship. It is further evident that since 30.12.1997, he has become American Citizen. That means to say, before initiation of the present proceeding, Abneshwar Prasad ceased to be Indian Citizen and that happens to be reason behind that Abneshwar Prasad has not his personal presence rather his presence happens to be through his mother Rati Devi in whose favour allegedly he had executed power of attorney.
6. Legal right, inherent right, right to inheritance is all found governed by the Constitution of India acknowledging the India i.e. Bharat, Union of States and further, the preamble identifies, we the people of India. So, people of India should be the person being citizen of India irrespective of place of domicile. Under Chapter-II of the Constitution of India, there happens to be reference regarding citizenship and Article-9 envisages that as soon as a person acquires citizenship of other country, then in that circumstance, he will automatically ceased to be citizen of India. For better reference Patna High Court CR. APP (SJ) No.3198 o f 2017 5 Article-9 of the Constitution of India is quoted below:-
"9. Person voluntarily acquiring citizenship of a foreign State not to be citizens. No person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or Article 8, if he has voluntarily acquired the citizenship of any foreign State."
7. Section 9 of the Citizenship Act, 1955 also guides the issue in similar way and for that, it looks wise to incorporate the same which reads as follows:-
"9. Termination of citizenship.--
(1) Any citizen of India who by naturalisation, registration otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act, voluntarily acquired the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India:
Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires, the citizenship of another country, until the Central Government otherwise directs.
(2) If any question arises as to whether, when or Patna High Court CR. APP (SJ) No.3198 o f 2017 6 how any 1[citizen of India] has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf.
8. Whatever right a citizen of sovereign country would have, according to prevailing statute of that sovereign country. That means to say, while Abneshwar Prasad was citizen of sovereign India being citizen of India, his right was protective under the guise of Fundamental Right, Constitutional Right, Legal Right according to Sect (Personnel Law). As soon as, he became ceased to be citizen of India, then in that circumstance, whether those rights would still be availed, permissible, exercizable. If not, then in that circumstance, what will be the ultimate fate.
9. As state above, it is evident that aforesaid Abneshwar Prasad had not appeared nor there happens to be acknowledgement of notice in his handwriting rather up-till this stage, he is being defended by his biological mother Rati Devi, one of the opposite party/ appellant. The Power of Attorney Act, 1882 did not specify the same, more particularly with regard to legal identity of the power of attorney executed by a person, who ceased to be the Indian Citizen.
10. It is evident that after adoption of Liberalization Policy, Central Government has introduced the Foreign Exchange Patna High Court CR. APP (SJ) No.3198 o f 2017 7 Management Act, 1999, effective since 01.06.2000 vide G.S.R. No.371(E) dated 01.05.2000, replacing the Foreign Exchange Regulation Act, 1973, whereunder three kinds of eventualities have been perceived:-
a) A person resident outside India, who is a citizen of India.
b) A person of Indian origin resident outside India.
c) A person resident in India.
11. It is further evident that earlier Act is completely silent over the same, nor the New Act takes cares of the ticklish question so persisting. In the aforesaid background, the following questions are being formulated for the purpose of adjudication by the Division Bench.
A) What will be effect after ceasing of citizenship? B) Whether power of attorney executed by Abneshwar will be legally recognizable?
C) Whether the person, who ceased to be citizen of India having no stay at India will be entitled to possess property in India?
D) What will be mode of payment of consideration amount relating to purchased property?
E) Whether law of inheritance (Personal Law) will be available?
Patna High Court CR. APP (SJ) No.3198 o f 2017 8
12. During course of argument, the learned lawyer representing both the sides did not enlighten the issue in its full clarity. Furthermore, the issue is not at all found adjudicated upon by this High Court since before and so, being of a public importance as well as of far newly consequence needs authoritative adjudication by the Division Bench and so, the office is directed to place the matter before the Hon'ble the Chief Justice for getting it listed, accordingly.
(Aditya Kumar Trivedi, J) Vikash/-
AFR/NAFR A.F.R. CAV DATE 12.02.2018 Uploading Date 27.06.2018 Transmission 27.06.2018 Date