Karnataka High Court
Smt. Savitha Chandra Shekarappa vs State Of Karnataka on 7 July, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL APPEAL NO.1051/2017
BETWEEN:
1. SMT. SAVITHA CHANDRASHEKARAPPA
W/O G.R. CHANDRASHEKARAPPA
AGED ABOUT 59 YEARS
RESIDING AT NO.524
2ND CROSS, ANJANEYA EXTENSION
DAVANAGERE - 577 004
2. SRI. G.R.CHANDRASHEKARAPPA
S/O LATE G.H. RUDRAPPA
AGED ABOUT 63 YEARS
RESIDING AT NO.524
2ND CROSS, ANJANEYA EXTENSION
DAVANAGERE - 577 004
... APPELLANTS
(BY KUM. SWATHI, ADVOCATE FOR
SRI. M.S.BHAGWAT, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY
DEPUTY SUPERINTENDENT OF POLICE
KARNATAKA LOKAYUKTA POLICE
SHIMOGA - 577 201
...RESPONDENT
(BY SRI. VENKATESH S ARABATTI, ADVOCATE)
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THIS CRIMINAL APPEAL IS FILED U/S 11 OF CR.P.C.
PRAYING TO SET ASIDE THE IMPUGNED ORDER OF AD-
INTERIM ATTACHMENT DATED 20.05.2017 AT ANNEXURE - A
IN CRL.MISC.NO.1087/2013 IN SPL.P.C.NO.8/2009 PENDING
ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE,
SHIVAMOGGA.
THIS CRIMINAL APPEAL COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Second appellant is the accused in Spl.P.C.No.8/2009 registered by respondent under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988. During the pendency of the proceedings before the jurisdictional Special Court, an application Annexure-D under Section 3 of the Criminal Law (Amendment) Ordinance, 1944 (hereinafter referred to as "Ordinance" for the purpose of brevity) came to be filed on 06.10.2009 by the respondent seeking attachment of properties of the accused as well as first appellant namely wife of accused, enclosing list of properties. Both appellants filed objections to said application as per Annexure-E and E1 respectively. For reasons best known, jurisdictional Court did not pass any orders and subsequently, on 28.3.2013, application filed by the 3 respondent i.e., Annexure-D was ordered to be registered as a separate Miscellaneous case. Accordingly, said application came to be registered as Crl.Misc.1087/2013. Jurisdictional Court by order dated 20.05.2017, Annexure-A, ordered for attaching the properties listed to the application and simultaneously, ordered that objections filed by first appellant is treated as objection to the order of ad-interim attachment now passed and for investigation of the said objections listed the matter to 08.06.2017.
2. Both accused as well as applicant have presented this appeal under Section 11(2) of the Ordinance for setting aside the order of attachment dated 20.05.2017 passed by Principal Sessions Judge Shivamogga, in Cr.Misc. No.1087/2013 in Spl. Case NO.8/2009.
3. I have heard the arguments of Kum. Swathi learned counsel appearing on behalf of Sri. M.S. Bhagawat, for appellants and Sri. Venkatesh S Arabatti, learned counsel appearing for respondent. Perused the records.
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4. As already noticed herein above, application - Annexure-D under Section 3 of the Ordinance came to be filed on 06.10.2009. No order came to be passed on said application and objections had been filed by accused as well as his wife i.e., first appellant on 16.06.2010 and 23.03.2011; Annexure-E and E1 respectively. Even thereafter the jurisdictional Court did not pass any orders on the application filed by the respondent under Section 3 of the Ordinance on 28.3.2013. This application was ordered to be registered as Criminal Miscellaneous and was allowed on 20.05.2017 i.e., after eight years, which is under challenge in this appeal.
5. It is the contention of learned counsel appearing for appellants that order of attachment is illegal, since it has been passed after a lapse of 8 years and though Section 4(1) of the Ordinance provides for obtaining immediate attachment of the property and orders are required to be passed without any delay. Hence, it is contended that object of the Act is to ensure that order of attachment is passed immediately and on account of there being inordinate delay, order under challenge is liable to be set aside.
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6. It is also contended that power available under Section 5(6) of the Prevention of Corruption Act would enable the Special Judge trying the offence to exercise the power and functions of the District Judge under the Ordinance and as such, the Special Judge alone ought to have passed the order. It is also contended that order of attachment should disclose prima facie case and reason to believe that person in respect of whom application is filed has committed any scheduled offence or has procured it by any money or property so earned. The assets and monies now sought to be attached of the first appellant being her self acquired property and document evidencing the same having been produced has not been considered. As such, on said ground, order of attachment passed is liable to be set aside.
7. She would also contend that affidavit supporting the application lacks material particulars and on that ground itself, application is liable to be rejected. In support of her contention, she has relied upon the unreported judgments of this Court in Crl.P.No.11239/2012 & Crl.P.No.11240/2012 dated 25.9.2012. 6
8. Per contra, Sri. Venkatesh S Arabatti , learned counsel appearing for respondent would support the impugned order and contend that learned Judge having noticed that previous Presiding Officer of the Court had not passed orders on the application- Annexure-D, has taken up the said application for consideration and has passed an ad-interim order and matter is now posted for enquiry, which power is available under Sub Sec(1) of Section 3 to the jurisdictional Court and as such, he contends there is no infirmity in the impugned order whatsoever calling for interference.
9. He would elaborate his submission by contending that properties of first appellant which has been attached by an ad- interim order of injunction has been sought to be raised by filing objections by first appellant under Section 4(4) of the Ordinance, which would be considered, examined and adjudicated by the jurisdictional court and if a time frame is fixed for disposal of the same, it would meet ends of justice. Hence, he prays for suitable orders being passed in this regard.
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10. Having heard the learned counsel for the parties and on perusal of records, a short point that arises for consideration is:
" Whether impugned order of attachment passed is in consonance with Section 3 and 4 of the Ordinance or not?"
In order to adjudicate above referred question it would be necessary to notice these two (2) provisions of the Ordinance and they are extracted herein below.
"3. Application for attachment of property:-
(1) Where the (state Government or as the case may be, the Central Government) has reason to believe that any person has committed (whether after the commencement of this Ordinance or not) any scheduled offence the (State Government may, whether or not any Court has taken cognizance of the offence, authorise the making of an application to the District Judge within the local limits of whose jurisdiction the said person ordinarily resides or carried on business, for attachment, under This Ordinance, of the money or other property which the (State Government, or as the case may be, the Central Government) believes 8 the said person to have procured by means of the offence, or if such money or property cannot for any reason be attached, of other property of the said person of value as nearly as may be equivalent to that of the aforesaid money or other property.
(Amended by A.O.1950 & again by Prevention of Corruption Act, 1988) (2) The provisions of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908, shall apply to proceedings for an order of attachment under this Ordinance as they apply to suits by the (Government).
(3) An application under sub-
section (1) shall be accompanied by one or more affidavits, stating the grounds on which the belief that the said person has committed any scheduled offence is founded, and the amount of money or value of other property believed to have been procured by means of the offence. The application shall also furnish- (Added by Prevention of Corruption Act, 1988)
(a) Any information available as to the location for the time being of any such money or other property and shall, if necessary, give particulars, including the estimated value, of other property of the said person;
(b) the names and addresses of any other person believed to have or to be likely to claim, any interest 9 or title in the property of the said person.
4. Ad-interim attachment:-
(1) Upon receipt of an application under Section 3 the District Judge shall, unless for reasons to be recorded in writing he is of the opinion that there exists no prima facie grounds for believing that the person in respect of whom the application is made has committed any scheduled offence or that 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, or if it transpires that such money or other property is not available, for attachment of such other property of the said person of equivalent value as the District Judge may thinks fit: Provided that the District Judge may if he thinks fit before passing such order, and shall, before refusing to pass such order examine the person or persons making the affidavits accompanying the application.
(2) At the same time as he passes an order under sub-section (1) the District Judge shall issue to the person whose money or other property is being attached a notice accompanied by copies of the order, the application and affidavits and of the evidence, if any recorded, calling upon him to show cause on a date to be specified in the notice why the 10 order of attachment should not be made absolute.
(3) The District Judge shall also issue notices, accompanied by copies of the documents accompanying the notice under sub- section (2) to all persona represented to him as having or being likely to claim, any interest or title in the property of the person to whom notice is issued under the said sub-section calling upon each such persons to appear on the same date as that specified in the notice under the said sub-section and make objections if he so desires to the attachment of the property or any portion thereof on the ground that he has an interest in such property or portion thereof.
(4) Any person claiming an interest in the attached property or any portion thereof may notwithstanding that no notice has been served upon him under this section make an objection as aforesaid to the District Judge at any time before an order is passed under sub-section.
(1)or sub-section (3), as the case may be, of Section 5."
11. The records would disclose that 2nd appellant was a public servant and retired from service on 30.9.2014, in the post of Executive Engineer in Public Works Department, Government of Karnataka. During his tenure of service, report came to be 11 received that he had acquired assets from unknown source of income and based on same, First Information Report came to be registered in Cr.No.10/2007 under Section 13(1)(e) r/w Sec 13(2) respectively and search was conducted on the premises of accused and a final report came to be prepared and charge sheet was filed before the Special Judge in Spl.P.C.Case No.8/2009 on 06.08.2009. The jurisdictional Court has taken cognizance of the offence under Section 13(1(e) r/w Section 13(2) of P.C. Act and accused is being tried for said offence and he has been enlarged on bail.
12. Respondent filed an application under Section 3 of the Ordinance on 06.10.2009 as noticed herein above. However, no orders came to be passed till 2017. There is delay of 8 years in adjudicating the said application. Be that as it may. As could be seen from the provisions of Ordinance, there cannot be any dispute to the proposition with regard to the power which can be exercised by the Special Court to attach the property of a person/s who are being investigated or tried under the provision of Prevention of Corruption Act, even during the pendency of the investigation. Section 3 of the Ordinance empowers prosecuting 12 agency to seek for attachment of the property. Section 4 of the Ordinance empowers the Court to pass ad-interim order of attachment pending disposal of the investigation or pending disposal of the case, as the case may be.
13. A reading of Section 4 of the Ordinance would also disclose that District Judge may if he thinks fit before passing such order of attachment, attaching the property being either in the name of the accused or in the name of the kith and kin or refusing to pass order, should examine such person or persons filing the affidavit, accompanying the application. Sub Section (2) of Section 4 casts a duty on the District Judge at the same time he has to issue notice to the person whose property or money is being attached, a notice accompanied by copies of the order, the application and the affidavit and of the evidence if any, recorded under sub Section (2) by calling upon such person or persons to show cause as to why such orders would not made absolute. If he chooses to pass ad-interim order and attachment.
14. In the instant case, as noticed herein above, application for attachment came to be filed in the year 2009.13
Objections to said application came to be filed by accused on 16.06.2010 - Annexure-E and by first appellant i.e., wife of the accused on 23.03.2011 - Annexure-E1. However, no order was passed and after lapse of two years i.e., 28.3.2013 said application was ordered to be registered as a separate miscellaneous case. Thus, application filed under Section 3 of the Ordinance got de-linked from the original proceedings. In the meanwhile, original proceedings having continued resulted in an order being passed on 15.07.2016 posting the matter for enquiry on said application under Section 5 of the Ordinance. Undisputedly, in the instant case, when order of attachment came to be passed on 20.05.2017, order passed on 15.07.2016 in Spl.P.C.No.8/2009 has not been brought to the notice of the learned District Judge either by accused or by wife of the accused or by the prosecution. It is in ignorance of this order, application filed under Section 3 of the Ordinance has been adjudicated and order came to be passed attaching the properties of the appellants.
As already noticed herein above, there cannot be any dispute with regard to power being available to the District Judge 14 to pass an ad interim order. In the instance case, no such ad interim order had been passed. I so say, for the reason that objections filed by appellants i.e., accused and his wife were already available on record which has also been referred to by the learned Judge in the impugned order. Thus, it was incumbent upon the District Judge to have considered the objections already on record while passing the impugned order. This exercise obviously was not undertaken, probably under the premise that impugned order that is being passed is an ad interim order. It is because of this precise reason, it has been held in the impugned order, investigation is to be done on the objections filed to the attachment. In other words, objections raised by accused and his wife has not received the attention of the jurisdictional Court. When District Judge, does not exercise power to pass an ad interim order and objections are already available on record, it would be incumbent and mandatory on the part of the District Judge to consider the said objection as otherwise, the purpose and intent of filing objections would became nugatory. In fact, objections filed by the accused which is at Annexure-E would disclose that he had undertaken that he would not alienate the 15 property till disposal of the case. The wife of accused in her objections has contended that it is her self acquired property and in support of her claim, she had produced income tax returns of the respective assessment years to substantiate her claim. However, she has not given any undertaking that she would not alienate or encumber the property, standing in her name, which the prosecution as alleged has been procured by the accused in the name of his wife and it is the subject matter of adjudication in Spl.P.C.No.8/2009 i.e., matter for evidence in the said proceedings and the initial burden is on the prosecution to establish the same.
15. In the instant case, it would suffice, if a direction is issued to the trial Court to dispose of the objections filed by appellants - Annexures E & E1, taking into consideration relevant documents produced by them, which is already available on record by the jurisdictional Court namely Prl. District Judge Shivamogga, which is the designated Special Court for the purpose of P.C. Act within a time frame of six weeks from the date of receipt of a copy of this order.
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16. Learned counsel appearing for the appellants would submit that during the pendency of the adjudication of the application, they would not alienate or encumber the property as indicated in the list of properties attached to the application filed under Section 3 of the Ordinance. Her submission is placed on record.
17. It also requires to be noticed that there was inordinate delay of 8 years in application for attachment being adjudicated. As to what was the compelling necessity or circumstance which had surfaced for the said application being adjudicated after 8 years no material was placed by prosecution. However, this court would not delve on that issue and it is left open to be considered by the jurisdictional court.
18. In view of the fact that objections filed by appellants was already available on record and same not having been considered, impugned order would not stand the fact of sub - Section(1) of Section (4) of the Ordinance, since it is not an ad- interim order, but an interim order, which was passed after notice to the appellants.
17Hence, I proceed to pass the following:
ORDER
(i) Criminal Appeal is allowed in part.
(ii) Order dated 20.05.2017, Annexure-A is hereby set aside.
(iii) Application filed under Section 3 of the Ordinance, Annexure-D is restored to the file of jurisdictional court for being adjudicated in the light of observations made hereinabove and such adjudication shall be carried out expeditiously at any rate within six weeks from the date of receipt of copy of this order.
(iv) It is also made clear that
undertaking given by the appellants that
they would not alienate the property during the pendency of the application or till the application filed under Section 3 of the Ordinance is disposed of by trial court is placed on record and it is made clear said 18 undertaking shall continue till orders are passed on the Application-Annexure-D.
(v) All questions including, issue of delay is left open.
I.A.No.1/17 does not survive for consideration in view of the appeal having been disposed of on merits.
Sd/-
JUDGE PSG