Madhya Pradesh High Court
Prakash Chandra Mahobia vs The State Of Madhya Pradesh on 16 August, 2019
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT JABALPUR
S.B.-Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.A. No. 1060/2019
Prakash Chandra Mahobia
Vs.
State of M.P.
JUDGEMENT
Post it for: 16.08.2019 (Rajendra Kumar Srivastava) Judge (14/08/2019) 2 THE HIGH COURT OF MADHYA PRADESH : JABAPLUR S.B.-Hon'ble Shri Justice Rajendra Kumar Srivastava Cr.A. No.-1060/2019 Prakash Chandra Mahobia Vs. State of M.P.
---------------------------------------------------------------------------------------------------- Shri T.S. Ruprah Senior Advocate with Shri U.S. Tiwari, Advocate for the appellants.
Shri Swantatra Pandey, Advocate for the Lokayukt-respondent.
----------------------------------------------------------------------------------------------------
JUDGEMENT (16.08.2019) This Criminal appeal under Section 17 of the M.P. Vishesh Nyayalaya Adhiniyam, 2011 (hereinafter referred as "Adhiniyam 2011") has been filed by the appellants being aggrieved by the criminal proceeding of Spl. Case No. 01/15 pending before Special Court No.2, Jabalpur constituted under 'Adhiniyam 2011' for the proceeding under Section 13(1) of 'Adhiniyam 2011'. The appellants have filed an application for dropping the further proceedings of Spl. Case No. 01/15 but the same has been rejected by the Special Judge.
2. According to case, respondent S.P.E. (Lokayukt), Jabalpur has registered a criminal case against appellant No.1 in Crime No. 39/10 for the offence punishable under section 13(1) (e) r/w 13(2) of Prevention of 3 Corruption Act, 1988, alleging that the appellant No.1 has acquired disproportionate property of total value of Rs. 1,05,91,066/- in comparison to his known sources of earning during the period of 1979 to 04.06.2010.
3. Further during investigation, the valuable property like ornaments, cash amount, documents of immovable property, policy bonds, vehicle registration papers were seized from the possession of the appellants. Out of them, ornaments were handed over to appellant No.1 in supurdginama whereas cash amount of Rs. 15,25,000/- were deposited in the nationalized bank under Fixed Deposit Scheme, as per order of Special Court, Seoni. As far as original documents of property and policy bonds are concerned, same kept under the custody of trial court in Special Case No. 02/16. Herein, it is necessary to mention that initially a charge-sheet was filed against the appellant No.1 before ASJ, Seoni but after constitution of special court under provision of Adhiniyam 2011, the case was transferred to Special Juge, Lokayukt.
4. During trial, an application under Section 13(1) of Adhiniyam, 2011 has been submitted by the respondent-S.P.E. for confiscation of the disproportionate property said to be acquired during the period from 1979 to 04.06.2010 in the name of appellants. The court has registered a Spl. Case No. 01/15 and issued show cause notices to the appellants. Thereafter, the appellant No.1 has been acquitted by the special court and the court has also ordered to return seized property after the period of elapsed filing the appeal or on subject to its decision. According to the learned counsel for the appellants, appellant No.1 has also filed an application under Section 452 of 4 Cr.P.C. for releasing the seized property but same has been rejected by the Special Court against which appellant No.1 has filed a criminal appeal under Section 454 of Cr.P.C. which is pending before this court, as Cr.A. No. 8380/10.
5. Learned counsel for the appellants submits that the learned trial court erred in rejecting the application filed by the appellants, as appellant No.1 has been acquitted from the alleged offences. Thus, when it has been held by the special court that no offence is committed by the appellant No.1, then no purpose would be served to keep the articles seized, which incurred loss to the appellants. Under Adhiniyam 2011, the order passed by the authority to confiscate the property of affected person is always subject to final decision of the special case against the affected person, if the person affected is convicted by the trial court then only the confiscation proceeding be initiated. In the case of acquittal, seized article should be returned to the concerned person and Section 19 of Adhiniyam 2011 provided the same. As in the present case, the appellant No.1 has been acquitted by the special court meaning thereby the seized property should be returned to him and there is no need to wait for the final decision of the appellate court. In support of his contention, he has relied upon the judgment of Hon'ble Apex Court in the case of Narayan Vs. Babu Saheb and ors., (2016) 6 SCC 725.
6. On the other hand, learned counsel for the respondent-S.P.E. opposes the submission and submits that against the judgment of acquittal passed in favour of the appellant No.1, State has already preferred a leave to appeal before this High Court as M.Cr.C. No. 19273/18 and notice has been issued 5 to the appellant No.1. There is huge possibility of success in pending appeal, thus, in such circumstances, if the seized articles would be released then in case of reversal, it is difficult to recover the same from the appellants. With the aforesaid submissions, he prays for dismissal of this appeal.
7. Heard both the parties and perused the case.
8. On perusal of case, it appears that the trial was conducted by Special Court, Lokayukt constituted under Adhiniyam 2011 and the allegation was leveled against the appellant No.1 was for the offence punishable under Section 13(1) (e) r/w 13(2) of Prevention of Corruption Act, 1988. The allegation against the appellant No.1 was that being a public servant, he has acquired disproportionate property to his known sources of income. In trial, after examining the evidence available on record, the learned special court came to the conclusion that no disproportionate property is found with respect to appellant No.1, thus, he has been acquitted from the aforesaid offence. The trial court has also ordered to release the seized articles after elapse of appeal period or subject to decision of appeal. The question which has been raised before this court is whether by filing this appeal when the appellant has been acquitted by the special court then in such circumstances whether confiscation proceeding under Section 13 can be kept pending or not. Before settling this issue, this court shall first consider the relevant provision of Adhiniyam 2011.
9. On careful reading of Adhiniyam 2011, it appears that the Chapter-III of it provides about the confiscation of property and Section 13 is reproduced as under:
6
" 13. Confiscation of Property. (1)Where the State government, on the basis of primafacie evidence, have reasons to believe that any person, who has held or is holding public office and is or has been a public servant has committed the offence, the state government may, whether or not the special court has taken cognizance of the offence, authorize the public prosecutor for making an application to the authorized officer for confiscation under this Act of the money and other property, which the State government believe the said person to have procured by means of the offence.
(2) An application under sub-section (1)-
(a) shall be accompanied by one or more affidavits, stating the grounds on which the belief, that the said person has committed the offence, is founded and the amount of money and estimated value of other property believed to have been procured by means of the offence; and
(b) shall also contain any information available as to the location for the time being of any such money and other property, and shall, if necessary, given other particulars considered relevant to the context."
10. Meaning thereby the provision has empowered the State Government to move an application for confiscation of seized property and money said to be disproportionate, which is irrelevant to the fact that special court has taken cognizance of the offence or not. Section 19 of the Adhiniyam 2011 provides about the procedure to refund of confiscated money or property. Section 19 is also quoted as under:-
"19. Refund of confiscated money or property-Where an order of confiscation made under Section 15 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 and in case it is not possible for any reason to return the property, such person shall be paid the price thereof including the money so confiscated with the interest at the rate of five percent per annum thereon calculated from the date of confiscation."
11. According to Section 19 when the person affected is acquitted by the Special Court, the money or property or both shall be returned to the person affected and in case if it is not possible for any reason to return the property, such person shall be paid the price thereof including the money so 7 confiscated with the interest at the rate of 5% per annum be paid from the date of confiscation.
12. In the present case, admittedly, the appellant No.1 has acquitted by the special court and confiscation proceeding under Section 13 of Adhiniyam 2011, is still pending. The learned counsel for the Lokayukt has argued before the court that against the acquittal, a leave to appeal has been preferred by the State and notice has been issued to appellant No.1. This court is of the view that filing a leave to appeal is separate proceeding and merely on the basis of its pendency, appellants cannot be deprived to get seized articles once he has been acquitted by the special court. The learned counsel for the appellants has also informed to this court that against the order of rejection of application under Section 452 of Cr.P.C., an appeal under Section 454 Cr.P.C. is also pending before this court but looking to the specific provision under Adhiniyam 2011 under Section 19, this court does not found any relevancy of this fact and same does not restrict the court not to pass order for releasing the seized articles. In the case of N. Madhvan Vs. State of Kerala (1979) 4 SCC 1, the Hon'ble Apex Court has laid down the principle with regard to restoration of property when the accused is discharged or acquitted:
"10. The words "may make such order as it thinks fit" in the section, vest the court with a discretion to dispose of the property in any of the three modes specified in the section. But the exercise of such discretion is inherently a judicial function. The choice of the mode or manner of disposal is not to be made arbitrarily, but judicially in accordance with sound principles founded on reason and justice, keeping in view the class and nature of the property and the material before it. One of such recognized principles is that when after an inquiry or trial the accused is discharged or acquitted, the court should normally restore the property of class (a) or (b) to 8 the person from whose custody it was taken. Departure from this salutary rule of practice is not to be lightly made, when there is no dispute or doubt
-- as in the instant case -- that the property in question was seized from the custody of such accused and belonged to him."
13. But, to save the interest of State, this court deem fit to impose some conditions upon the appellants while passing the order of release seized articles.
14. Accordingly, in view of the Section 19 of Adhiniyam 2011 this petition is allowed. The seized articles (insurance policies, ornaments, property related documents etc.) shall be released in favour of the person who is concerned with it subject to verification of his ownership and right to possess the same. Appellants are also directed to furnish the security to the same value of released articles to the satisfaction of the trial court and they will also furnish an undertaking that if in the appeal against acquittal, State would be succeed then appellants deposit the amount subject to outcome of appeal.
(Rajendra Kumar Srivastava) JUDGE pallavi PALLAVI SINHA 2019.08.22 16:37:24 +05'30'