Madras High Court
K.G.Natesan vs State Represented By on 25 August, 2014
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.08.2014 C O R A M THE HONOURABLE Mr. JUSTICE M.VENUGOPAL Crl.R.C.No.445 of 2014 and M.P.No.1 of 2014 1.K.G.Natesan 2.G.Malliga 3.Dr.N.Satyaprakash 4.Dr.Sridevi ... Petitioners/Accused1 to 4 Vs State represented by The Deputy Superintendent of Police, Vigilance & Anti Corruption, Coimbatore detachment at, Coimbatore. ... Respondent/Complainant Prayer: Criminal Revision Petition filed under Sections 397 read with 401 of the Criminal Procedure Code praying to call for the records in Crl.M.P.No.1467 of 2013 in Crl.M.P.No.450 of 2010 on the file of the learned Principal District and Sessions Judge, Erode dated 11th of February 2014 and revise the same. For Petitioners : Mr.A.K.Kumarasamy For M/s.V.Rajamohan Mr.C.Malarvannan For Respondent : Mr.A.N.Thambidurai Additional Public Prosecutor ORDER
The Revision Petitioners/Accused 1 to 4 have preferred the instant Criminal Revision Petition before this Court as against the order dated 11.02.2014 in Crl.M.P.No.1467 of 2013 in Crl.M.P.No.450 of 2010 passed by the Learned Principal District and Sessions Judge, Erode.
2.The Learned Principal District and Sessions Judge, Erode, while passing the impugned order in Crl.M.P.No.1467 of 2013 in Crl.M.P.NO.450 of 2010, on 11.02.2014, had, in paragraph 10, inter alia, observed, that '... In view of the fact that the Court itself impliedly extended the interim attachment from 18.3.2011 and passed orders for effecting attachment and attachment warrant etc., the attachment cannot be invalidated merely on the ground that no specific order passed. In the meanwhile, the memos also filed by the respondent. Therefore, at this stage, it cannot be contended by the petitioners that the attachment has to be raised. Having regard to the nature of the crime registered against the accused and the properties are allegedly acquired disproportionate to the known source of income, at this stage, if the attachment is raised, the very purpose and object of the act will be defeated. Hence, it is ordered the attachment shall continue till the criminal proceedings are over. Therefore, the petition filed by the petitioners cannot be entertained' etc. and resultantly dismissed the petition.
3.According to the Learned Counsel for the Petitioners/Accused, the case came to be registered against the 1st Petitioner in respect of an offence under Section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act on 18.07.2008 by the Respondent on the allegation that he is in possession of assets which are disproportionate to his known sources of income and further, the 1st Petitioner was the Chief Engineer (Project) Civil, TNEB, Erode region. Also that, he retired on 31.05.2011.
4.The Learned Counsel for the Petitioners submits that while the investigation pending, the Respondent filed an Application under Section 3(1) of the Criminal Law (Amendment) Ordinance, 1944 before the Learned Principal District Judge, Erode with the following prayers:
(i)To pass an ad-interim attachment of the properties set out in details in annexure I to IV under Section 3 of the said Ordinance No.38/1944.
(ii) To pass an absolute attachment of the said properties under Section 4(1) of the Ordinance 38/1944.
(iii) To take such further action under the said ordinance as deemed necessary.
and that the said Application was filed on 15.02.2010 and an ad-interim attachment was ordered on 31.03.2010.
5.Advancing his arguments, the Learned Counsel for the Petitioners submits that the order of ad-interim attachment of properties was made as early as on 31.03.2010 and submit Section 10 of the Criminal Law (Amendment) Ordinance, 1944, an order of attachment of property under this Ordinance shall continue in force for one year from the date of order.
6.Expatiating his contention, the Learned Counsel for the Petitioners contends that in the instant case, the order of ad-interim attachment was passed on 31.03.2010 and that the Special Court took cognizance of the offence only on 13.08.2012 and admittedly, the cognizance was not taken within one year and as such, the order get expired on 30.03.2011. Further, there should have been an Application filed by the agent of the Government and a specific order on that application by the District Judge extending the period is an essential one and in the present case, no such application was filed. As a matter of fact, the counter filed before the trial Court says a memo was filed on behalf of the Government and a memo would not take the place of an application. That apart, no specific orders were passed by the trial Court to the effect of extending the order and as such, the ad-interim attachment passed by the trial Court on 31.03.2010 expired on 30.03.2011 and thereafter, it is not in force.
7.The prime argument of the Learned Counsel for the Petitioners is that when the ingredients of Section 10 of the Criminal Law (Amendment) Ordinance, 1944 satisfies that the certain things are to be done in a particular manner, then, it has to be done only in that manner and in the present case, neither an application was filed nor was any specific order was passed.
8.Lastly, it is the submission of the Learned Counsel for the Petitioners that the trial Court should not have held that on 18.03.2011, within one year period, the then District Judge, in fact, extended the attachment by passing orders from payment of batta etc. and the trial Court failed to see that an order of attachment is different from execution of attachment. Also that, the trial Court went wrong in inferring the then District Judge had extended the time, when, in fact, the Court itself had stated that there was no specific order to that effect.
9.In response, the Learned Additional Public Prosecutor for the Respondent submits that as against the Petitioners 1 and 2, a Charge Sheet was filed before the Special Court for cases under the Prevention of Corruption Act, Coimbatore on 05.04.2012 by the then Investigating Officer, the Additional Superintendent of Police, V & AC, Coimbatore for the offences under Section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act and Section 109 of the Indian Penal Code and the same was taken on file in Spl.C.C.No.21 of 2012, on 13.08.2012.
10.The Learned Additional Public Prosecutor for the Respondent contends that the Learned Principal District Judge on 18.01.2011 in Cr.M.P.No.1690 of 2010 passed orders and that the attachment made in respect of Rs.86,93,500/- which was deposited in Indian Bank, Gandhiji Road, Erode and therefore, fixed deposit receipts viz., 024214, 024215, 024216 and 024217 was raised based on condition that the wife of the 1st Accused viz., the 2nd Petitioner had to execute the registered security bond with regard to the property to be offered as security within 10 days from the date of the order.
11.The Learned Additional Public Prosecutor for the Respondent brings it to the notice of this Court that the 2nd Petitioner had executed a registered property document bearing No.89/2001 of Sub Registrar, Sulur, as security bond, before the District Judge, Erode as per order passed in Cr.M.P.No.1690 of 2010 and the same was accepted as security on 09.02.2011.
12.According to the Learned Additional Public Prosecutor for the Respondent, the 2nd Petitioner filed Crl.M.P.No.206 of 2011 under Section 451 Cr.P.C. before the Chief Judicial Magistrate and Special Judge, Erode requesting to release the sum of Rs.86,93,500/- which was deposited in the Indian Bank and on 24.02.2011, an order was passed to return the case property to the 2nd Petitioner on the bond already executed by her in compliance with the order of the District Judge, Erode with the condition that she shall produce the said amount before the Court as and when required by it and further directed the Indian Bank to transfer the money deposited under four FD receipts to the account of the 2nd Petitioner.
13.The Learned Additional Public Prosecutor for the Respondent contends that in the meanwhile, the Respondent preferred Crl.A.No.557 of 2011 before this Court against the order in Cr.M.P. No.1690 of 2010.
14.The Learned Additional Public Prosecutor for the Respondent vehemently submits that the Respondent filed memos praying for extension of time under Section 10 of the Criminal Law (Amendment) Ordinance, 1944 and the said memos were accepted by the Principal District Judge, Erode. That apart, it is pleaded on behalf of the Respondent that the order of ad-interim attachment still continues and the same is valid and in the order made in Crl.M.P.No.1467 of 2013 in Crl.M.P.No.450 of 2010, the details in regard to extension of ad-interim attachment were correctly observed.
15.The Learned Additional Public Prosecutor for the Respondent contends that on a careful perusal of the memos available in the records shows that the then District Judge had not passed any order extending further time and on seeing the Notes Paper, it was found that on 18.03.2011 when the matter came up for hearing, the then District Judge had passed an order for serving the attachment order and on receipt of batta, posted the matter for awaiting attachment warrant and for hearing on 06.04.2011, for taking steps. On 18.03.2011, within one year period, the then District Judge in fact extended the attachment by passing an order for payment of batta etc. The Notes Paper clearly show that in fact the then District Judge had passed the order in carrying out the attachment already passed. As such, it could be inferred that attachment deemed to have been extended.
16.The Learned Additional Public Prosecutor for the Respondent projects an argument that if the order of ad-interim attachment was made absolute, the Petitioners would not be prejudiced and on the contrary, if the order of attachment was raised, the very purpose of the prosecution would get defeated.
Discussions:
17.It is to be pointed out that the main stand taken on behalf of the Petitioners is that the trial Court itself had stated that the Complainant had filed a memo dated 06.04.2011 which was after a week from the date of expiry of the attachment order dated 31.03.2010. Further, it is represented on behalf of the Petitioners that any application should have been filed within the period of expiry of the order. According to the Petitioners, in any event, even the memo which in fact could not take the place of an application was filed only after the date of expiry of the order passed.
18.Also, it is the plea of the Petitioners that an order of attachment is different from execution of attachment and any order passed towards the execution of attachment would not amount to passing orders extending the duration of the attachment order.
19.However, on behalf of the Respondent, it is categorically contended that on 18.03.2011, the then District Judge had extended the attachment by passing order in Crl.M.P.No.450 of 2010 on the batta memo filed by observing 'Batta memo filed. Issue for 06.04.2011 etc.' and therefore, from the said order, it could be inferred that the attachment order deemed to have been extended.
20.In effect, the contention of the Respondent is that the Court had impliedly extended the interim attachment from 18.03.2011 and passed orders for effecting attachment and attachment warrant etc., as such, the attachment could not be invalidated merely on the ground that no specific order passed.
21.That apart, it is the version of the Respondent that the first memo was filed on 06.04.2011 after a weeks time of the lapse of one year period and subsequently, another memo filed within time on 30.03.2012 and 25.03.2013. It is also admitted on behalf of the Respondent that no orders were passed based on the memo in regard to the extension of time.
22.At this juncture, this Court pertinently points out that a cursory perusal of the ingredients of Section 3 of the Criminal Law (Amendment) Ordinance, 1944 refers to 'Application for attachment of property'. Section 4 of the Ordinance deals with 'Ad-interim attachment'. Also that, Section 7 refers to 'Execution of orders of attachment'. As a matter of fact, Section 8 of the Ordinance is concerned with, 'Security in lieu of attachment'. Section 10 deals with 'Duration of Attachment'.
23.At this stage, this Court for better and fuller appreciation of the merits of the matter in issue refers to Section 10 (b) of the Criminal Law (Amendment) Ordinance, 1944 which enjoins as follows:
10.Duration of attachment.- An order of attachment of property under this Ordinance shall, unless it is withdrawn earlier in accordance with the provisions of this Ordinance, continue in force -
(b)where a Court has taken cognizance of the alleged scheduled offence whether before or after the time when the order was applied for until orders are passed by the District Judge in accordance with the provisions of this Ordinance after the termination of the criminal proceedings.
24.In this connection, this Court aptly points out the decision in Dr.V.K.Rajan V. State of Kerala, 2008 CRI.L.J. 909 at page 910, whereby and whereunder, it is observed and held as follows:
District Judge is invested with the power of attachment under the Ordinance and Special Judge will get that power under S.5(6) of the Prevention of Corruption Act only while trying the offence. Though sub-sec.(6) of S.5 of Prevention of Corruption Act entitles the Special Judge to exercise some powers of the District Judge, while trying an offence, but, it does not say that the Special Judge shall be deemed to be a District Judge as contemplated under the Ordinance. Thus, the language used in sub-sec. (3) leaves no manner of doubt that to all intents and purposes, the Special Judge, apart from having the jurisdiction of the original criminal Court, that is, Magistrate's Court is also deemed to be Sessions Judge and the provisions of the Cr.P.C. shall be applicable to the proceeding before him so far they are not inconsistent with the Act. Power of attachment under the Ordinance is specifically given to District Judge only.
(1963) 1 Cri LJ 252, Foll.
In view of S. 5(6) of the Prevention of Corruption Act, Special Judge, through a criminal Court, is specifically empowered to the powers of a District Judge under the Ordinance to attach property as provided under the Ordinance, while trying an offence. The only reason for holding that Special Judge is vested with power of attachment under the Ordinance before trial at the investigation stage, it will result in dichotomy of the jurisdiction. But, even before Prevention of Corruption Act was framed before Special Courts were constituted, trial of offences was conducted by criminal Courts. District Court was not concerned with pre-trial for trial proceedings of the crime. Pre-trial proceedings were done by the Magistrate's Court and after committal, trial was conducted by the Sessions Court. But, power of attachment under the Ordinance which is not contemplated under the Cr.P.C. was given to the District Court, a civil Court. The purposes of the Ordinance was to give power of attachment to civil Court, a Court other than criminal Court which is dealing with the crime even though it is connected with a criminal case. Therefore, it cannot be contended that after establishment of Special Courts, a new dichotomy of jurisdiction is created or a different meaning other than the literal meaning to be given to S.5(6) of the Prevention of Corruption Act. District Court while attaching the property under the Ordinance has nothing to do with the merits of criminal trial. But, he shall dispose of the attached property after the decision of the criminal Court depending upon the decision of the criminal Court. Therefore, Legislature intended dichotomy of jurisdiction with a purpose. District Judge is bound to follow the provisions of C.P.C. while attaching the property and disposing of the attached property after judgment of the criminal Court which follows Cr.P.C. The power of attachment is a special power conferred upon the District Judge under the Ordinance. District Court is vested with certain powers for attachment of the property with regard to a matter connected with a matter pending in criminal Court having special jurisdiction. Therefore, the question whether District Courts acts as a civil Court or criminal Court is of not much consequence. The District Court is vested with special powers and procedures in dealing with attachment. Right of appeal is also provided separately.
25.Also, this Court cites the decision in G.L.Salwan V. The Union of India and another, 1960 Cri. L.J. 984 (Vol.61, C.N.341), wherein it is observed as follows:
The Criminal Law Amendment Ordinance (1944) provides for preventing the disposal or concealment of money or other property procured by means of certain offences namely, offences under S. 161 or 165 of the Penal Code and offences under S. 406 or 409, 411 or 414, and 417 or 420, Penal Code, where the money or property in question which has been embezzled, stolen or obtained by false pretence is Government money or property. These cases constitute easily recognisable classification. The object is to freeze money or property improperly obtained by a Government servant in his official capacity or money or property belonging to the Government regarding which an offence is alleged to have been committed so that on the conclusion of the case, in the event of the conviction of the accused, the money or property is available for immediate restoration to the Government. The Ordinance does not in anyway contravene provisions of Art.14 of the Constitution. AIR 1958 SC 538 and AIR 1952 SC 123 Ref.
A notice calling on a person who may be prosecuted for an offence in relation to the property to show cause why the attachment order in respect of that property should not be made absolute, does not in anyway compel him to be a witness against himself. Even if a person in this position has for the purpose of securing the release of the property from attachment to reveal incidentally the whole or part of what his answer to the charge against him will be, the provisions of Art. 20(3) of the Constitution are not violated.
26.It is to be remembered that 'an Attachment' by itself does not create a title nor operates to convert any title in attaching creditor or attaching authority. As a matter of fact, the attachment basically defines private alienation of property attached and property cannot be dealt with to the prejudice of the claims enforceable under attachment. Furthermore, the owner or occupier does not lose all rights an interest in the property, in the considered opinion of this Court.
27.In practice, when applications are pending for consideration before a Court of Law, filing of memos by the litigant concerned seeking an appropriate relief for extension/renewal of attachment order is not a palatable/desirable/prudent one, in the considered opinion of this Court. It is to be remembered that ordinarily, memos would be filed to record certain facts in a given proceedings before a Court of Law.
28.A mere running over the eye over the ingredients of Section 10(a) of the Criminal Law (Amendment) Ordinance, 1944 unerringly point out that an order of attachment of the property under this Ordinance shall it by valid for one year from the date of the order under sub-section (1) of Section 4 or sub-section (2) of Section 6, as the case may be, unless cognizance of such offence is in the meantime so taken, or unless, the District Judge on application by the agent of the [State Government or, as the case may be, the Central Government] things it proper and just that the period should be extended and passes an order accordingly. Further, under Section 10(b) of the Ordinance envisages that the Duration of Attachment will last where a court has taken cognizance of the alleged scheduled offence whether before or after the time when the order was applied for until orders are passed by the District Judge in accordance with the provisions of this Ordinance after the termination of the criminal proceedings.
29.In the instant case on hand, in Crl.M.P.No.450 of 2010, the interim attachment was passed on 31.03.2010. On 18.03.2011 the Principal District Judge had inter alia observed in the Notes Paper that Batta Memo filed. Issue for 06.04.2011 etc. On 06.04.2011 the Principal District Judge in the Notes Paper had observed as follows:
Counter of R1 to R4 filed batta memo filed for Annexure No.III in Item No.4 and returned. For batta memo filed u/s.10 of Order Act and returned.
Batta memo filed a petitioner and allowed. Issue for 28.04.2011 steps for Annexure IV await attachment warrant for Annexure No.I.
30.As a matter of fact, before the expiry of one year period of attachment order dated 31.03.2010, on the side of Respondent/ Complainant, on 18.03.2011, batta memo was filed in Crl.M.P.No.450 of 2010 and the same was directed to be issued for 06.04.2011 as seen from the Notes Paper of Crl.M.P.No.450 of 2010. Admittedly, no specific orders were made in the memos filed on behalf of the Respondent/Complainant. When the memo filed before the Learned Principal District Judge on 18.03.2011 well before the expiry of one year period of attachment order dated 31.03.2010 and the same was directed to be issued for 06.04.2011 by the Learned Principal District Judge, then, it is to be construed that the order of attachment dated 31.03.2010 was purported to have been extended. In fact, filing of application is required for continuance of attachment order, if the period was one year from the date of the order. But, in the present case, as stated earlier, on behalf of the Respondent, batta memo was filed on 18.03.2011 and was directed to be issued for hearing on 06.04.2011 by the Learned Principal District Judge with a view to carry out the the attachment already ordered earlier. Also, it cannot be forgotten that the Petitioners herein filed Cr.M.P.No.1690 of 2010 to release the cash deposit from the Bank and the same was allowed by the District Judge on 18.01.2011 and ultimately the attachment was raised with regard to money, subject to condition that the 2nd Petitioner should execute the bond for the same etc.
31.It is to be pointed out that although an attachment order in respect of immovable properties was passed on 31.03.2010 in Crl.M.P.No.450 of 2010, till 18.03.2011 the same was not vacated or raised by means of an express order. Likewise, from 18.03.2011 till 11.02.2014, attachment order dated 31.03.2010 in respect of immovable properties was not vacated. As a matter of fact, on 11.02.2014, Crl.M.P.No.1467 of 2013 was dismissed by the trial Court and in Crl.M.P.No.450 of 2010, the trial Court directed the continuance of interim order of attachment till the criminal proceedings are cover and accordingly closed the Petition.
32.Indeed, a Charge Sheet, as against Accused 1 and 2, was filed before the Special Court, Coimbatore and the same was taken on file in Spl.C.C.No.21/2012 on 13.08.2012. Just because on 18.03.2011 no specific orders were passed for effecting attachment and attachment warrant etc. in Crl.M.P.No.450 of 2010 and when the fact of the matter is that well before the expiry of deadline on 18.03.2011 when the Respondent had filed batta and when the Learned Principal District Judge, Erode directed the issuance of the same for 06.04.2011, then, by no stretch of imagination, it can be contended that the attachment order dated 31.03.2010 passed by the Court earlier had become nugatory or got invalidated merely on the premise that no specific orders were passed. Also, as per Section 10(b) of the Criminal Law (Amendment) Ordinance, 1944, the Duration of Attachment would be as follows:
(b)where a Court has taken cognizance of the alleged scheduled offence whether before or after the time when the order was applied for until orders are passed by the District Judge in accordance with the provisions of this Ordinance after the termination of the criminal proceedings.
33.As such, the contra plea taken on behalf of the Petitioners for raising ad-interim attachment on the ground that the said attachment lapses by efflux of time cannot be countenanced, in the eye of law. Further, in view of the gravity of the crime registered against the Accused and when the properties are allegedly acquired in a disproportionate portion from the known sources of income, then, this Court is of the considered view that the attachment order dated 31.03.2010 shall continue till the termination of the criminal proceedings, as envisaged under 10(2) of the Criminal Law (Amendment) Ordinance, 1944. Consequently, the Criminal Revision Petition fails.
34.In the result, the Criminal Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is closed.
25.08.2014
Index : Yes
Internet : Yes
Sgl
To
1.The Principal District and Sessions Judge,
Erode.
2.The Deputy Superintendent of Police,
Vigilance & Anti Corruption,
Coimbatore detachment at,
Coimbatore.
3.The Public Prosecutor,
High Court, Madras.
M.VENUGOPAL,J.
sgl
ORDER IN
Crl.R.C.No.445 of 2014
25.08.2014