Delhi District Court
Sharma vs M/S. Built More India Limited And Shri ... on 4 August, 2010
IN THE COURT OF SHRI G.P. MITTAL: DISTRICT JUDGE-I &
SESSIONS JUDGE: DELHI.
CBI V. BALBIR SHARMA
Crl. Application No. 271/07
Unique ID No.02401C1271892007
O R D E R:
An application {purported to be under Section 3 of the Criminal Law (Amendment) Ordinance 1944} for attachment of Flat No. A-4, 6, Aurangzeb Road, New Delhi, belonging to M/s Prithvi Traders Limited was moved by the CBI. An affidavit of Shri A.B. Chaudhary, Inspector, CBI, ACU-II, New Delhi was also filed in support of the application. Vide order dated 19.11.2008, it was observed by my learned Predecessor that no document regarding ownership of the property in the name of the accused (in RC-AC-2-2006, A-0007 dated 05.07.2006) had been filed on record and, therefore, a notice was ordered to be issued to respondent Balbir Sharma. Apart from respondent Balbir Sharma, one M/s Built More India Limited and Shri S.S. Jolly filed objections to the plea of the CBI for attachment. Since the property, sought to be attached, was in the name of M/s. Prithvi Traders Limited, a notice of the application was also ordered to be issued to the other Directors.
2. In the meanwhile, a report under Section 173 Cr.P.C. against the accused persons, including respondent Balbir (Cr.Appl.No.271/07) (Page 1 of 5) Sharma, has been filed in the court of Shri O.P. Saini, Special Judge, Patiala House Courts, New Delhi. An application has been moved by the CBI for transferring the application before the learned Special Judge on the ground that as per Sub Section (6) of Section 5 of the Prevention of the Corruption Act, 1988 (for short - the PC Act), a Special Judge shall exercise all the powers and functions exercisable by District Judge under the Criminal Law (Amendment) Ordinance 1944 (for short - the CLA Ordinance) while trying an offence punishable under the PC Act. 3- The application has been opposed by non-applicant M/s. Built More India Limited and Shri S.S. Joly by way of filing written reply to the application. The application is also opposed on behalf of respondent Balbir Sharma, though no written reply to the application has been filed by him.
4- I have heard Shri D.S.Saraswati, Senior Public Prosecutor for CBI; Shri G.L. Rawal, learned Sr. Advocate on behalf of the non applicants and Mr. Dhanuj Dogra, Advocate on behalf of respondent.
5- It has been urged by the learned Senior Public Prosecutor on behalf of the CBI that CLA Ordinance is a general law which applies to attachment and disposal of the property of a person who has committed any scheduled offence which as per the schedule, includes certain offences under the Indian Penal Code (for short - the IPC) in addition to any offence under the (Cr.Appl.No.271/07) (Page 2 of 5) PC Act; whereas Section 5(6) of the PC Act deals with any offence under the PC Act, and therefore, once a charge-sheet is filed, an application under Section 3 of the CLA Ordinance shall have to be dealt with by the Special Judge if the offence is one under the PC Act.
6- On the other hand, it has been urged by the learned Counsel for the non-applicants that the court of the District Judge, Delhi did not have any jurisdiction to entertain the application as an application under Section 3 of the CLA Ordinance can be filed before a District Judge within local limits of whose jurisdiction, the person (whose property is sought to be attached) ordinarily resides or carries on business. 7- According to the learned Counsel for the non- applicant, accused/ respondent Balbir Sharma admittedly was and is a resident of Raigarh. Similarly, he was not carrying on business within the local limits of the territory of NCT of Delhi and thus, the application could not have been entertained by the court of the District Judge, Delhi, and there is no question of transfer of the said application to the court of Special Judge, trying the offence under the PC Act. It has further been urged that since the property belonging to M/s. Prithvi Traders Private Limited, which is a juristic person, the property is not liable for attachment.
8- At this moment, I am not going into the merits of the (Cr.Appl.No.271/07) (Page 3 of 5)
application. I am simply to decide whether the application ought to be dealt with by the court of the District Judge as provided under Section 3 of the CLA Ordinance or the application should be dealt with by the Special Judge as provided under Section 5(6) of the PC Act.
9- As per scheme of the CLA Ordinance, the disposal of the attached property upon termination of criminal proceedings as provided under Section 13 is also to be done by the District Judge. Section 13(2) of the CLA Ordinance empowers the District Judge to withdraw any order of attachment where either the cognizance of the offence has not been taken or where the final judgment or order of the criminal court is one of the acquittal. As per section 13(3) of the CLA Ordinance, if the final judgment or order of the criminal court is one of the conviction, the District Judge shall order that from the property of the convicted person attached, or out of the security given in lieu of such attachment, such amount or value as is found in pursuance of section 12 to have been procured by the convicted person by means of the offence together with the costs of attachment etc., to be forfeited to the government. If we harmoniously construe the provisions of Section 5(6) of the PC Act and the provisions of the CLA Ordinance, it would be clear that in case of the scheduled offence triable by any court other than the Special Judge under the PC Act, the entire proceedings right from the (Cr.Appl.No.271/07) (Page 4 of 5) attachment under Section 3 of the Ordinance, upto the disposal of the property after acquittal or conviction, are to be dealt with by the District Judge whereas in respect of any scheduled offence which is triable by a Special Judge, an application for attachment under Section 3 of the CLA Ordinance can be made before the District Judge where cognizance of an offence under the PC Act has not been taken by the Special Judge. However, if the Special Judge has taken the cognizance of the offence, then the proceedings for attachment of the property under Section 3 of the CLA Ordinance and its disposal under Section 13 of the CLA Ordinance are appropriately to be done by the Special Judge as provided under Section 5(6) of the PC Act. 10- Under these circumstance, the application moved by the CBI for attachment of the property is transferred to the court of Shri O.P. Saini, Special Judge, Patiala House Courts, New Delhi who has already taken cognizance of the offence which is a scheduled offence under the CLA Ordinance. This order is without prejudice to the pleas which have been taken by the parties before this court, which shall be appropriately dealt with by the court of learned Special Judge.
Parties to appear before the said court on 10.08.2010. Announced in open (G.P. MITTAL)
court on 04.08.2010. DISTRICT JUDGE-I & SESSIONS JUDGE DELHI.
(Cr.Appl.No.271/07) (Page 5 of 5)