Patna High Court - Orders
Anil Kumar vs The State Of Bihar Through Vig on 21 March, 2012
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
Patna High Court Cr.Misc. No.5018 of 2012 (7) dt.14-03-2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.5018 of 2012
===============================================
Anil Kumar, Son of Late Ishwar Sharan Lal, Resident of -
House No.-54 West Boaring Canal Road, P.S. Sri Krishna Puri
Town & District-Patna.
.... .... Petitioner
Versus
1.The State Of Bihar Through Department of Vigilance.
2. Secretary-cum-Commissioner, Department of Vigilance,
Govt. of Bihar, New Secretariat, Baily Road, Patna.
3. Additional Collector General of Police, Department of
Vigilance
.... .... Respondents.
===============================================
=======
Appearance :
For the Petitioner/s : Mr. Laxmi Narayan Das &
Mr. Akhilesh Dutta Verma, Advts.
For the Opposite Party/s: Mr. Ramakant Sharma, Sr. Adv.
& Mr. Kedar Singh, adv.
CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL ORDER
7 21-03-2012The above-said petition has been filed under Section- 482 of the Cr.P.C. for quashing the order dated 20-01-2012 passed by learned Additional District Judge-cum-Special Judge, Vigilance-Ist, Patna in Confiscation Case No. 01 of 2010 by which, he refused to keep the above-said Confiscation Proceeding in abeyance till decision of Cr. W.J.C. No. 1009 of 2011.
Patna High Court Cr.Misc. No.5018 of 2012 (7) dt.14-03-2012
2. I have already heard all the parties on the point of admission and with consent of the parties; this petition is being disposed of at the stage of admission itself.
3. The brief fact which lies to file this quashing petition is that a Disproportionate Assets Case No. 41 of 2007 was filed against the petitioner. Prior to filing of the aforesaid case, Vigilance P.S. Case No. 70 of 2007 had been registered against the petitioner. After filing of the above-said Disproportionate Assets Case, an application under Section-13 of the Bihar Special Courts Act, 2009 read with Rule 14 of Bihar Special Courts Rules, 2010 was filed before the Court of Special Judge, Vigilance, Patna and, accordingly, Confiscation of Case No. 01 of 2010 was registered and a notice for confiscation of Disproportionate Assets of petitioner was issued against the petitioner. The petitioner filed his show cause. In the meantime, the petitioner challenged his prosecution in Vigilance Case No. 70 of 2007 as well as Special Case No. 41 of 2007 by filing Cr. W.J.C. No. 1009 of 2011 before this court on the grounds that Vigilance submitted case diary running from page 1 to 160 before learned Special Judge, Vigilance on 02-08-2007 but after more than one year from submission of the original case diary to the concerned court, when copy of the case diary was supplied to the petitioner, it was detected that the aforesaid case diary Patna High Court Cr.Misc. No.5018 of 2012 (7) dt.14-03-2012 contains only pages running from page no. 1 to 104 though the aforesaid case diary is said to be a complete case diary.
4. It would appear from Annexure-4 to this petition that a Bench of this court stayed the further proceeding of Vigilance Case No. 70 of 2007 as well as Special Case No. 41 of 2007 till pendency of the above-said Cr. W.J.C. No. 1009 of 2011 vide order dated 24-10-2011.
5. After passing of order dated 24-10-2011 in Cr. W.J.C. No. 1009 of 2011, the petitioner filed a petition before learned Special Judge, Vigilance-Ist, Patna in Confiscation Case No. 01 of 2010 praying therein to stay the aforesaid proceeding till the decision of Cr. W.J.C. No. 1009 of 2011 but learned Special Judge, Vigilance rejected the aforesaid prayer vide order dated 21-01-2012 holding that the proceeding in Confiscation Case is a separate proceeding under the Bihar Special Courts Act, 2009.
6. Being aggrieved by the said order dated 21-01-2012, the petitioner moved this court by filing this quashing petition.
7. Learned counsel appearing for the petitioner challenged the impugned order on the ground that the Confiscation Case No. 01 of 2010 is based on Vigilance P.S. Case No. 70 of 2007 as well as Special Case No. 41 of 2007 and when the further proceedings of aforesaid two cases have Patna High Court Cr.Misc. No.5018 of 2012 (7) dt.14-03-2012 already been stayed by this court, the learned Special Judge, Vigilance ought to have stayed the proceeding of Confiscation Case No. 01 of 2010 till decision of Cr. W.J.C. No. 1009 of 2011. It is further contended by learned counsel for petitioner that except the report of Disproportionate Assets Case, there was no material to form an opinion for confiscation proceeding and satisfaction of the State Government has been made only on the basis of petition of Disproportionate Assets Case and when the aforesaid Disproportionate Assets Case has already been stayed by this court, there is no need to proceed with confiscation proceeding till the decision of this court. It is further contended by him that Section-9 of Bihar Special Courts Act, 2009 says that no appeal or revision shall lie in any court from any judgment, sentence or order of Special Court, and, therefore, in view of the aforesaid provision, even if there is provision of Section-17 of Bihar Special Courts Act, 2009, the quashing petition is maintainable before this court.
8. Learned counsel appearing for Vigilance challenged the maintainability of this petition submitting that there is specific provision for appeal against any order of the authorized officer under Chapter-3 and therefore, quashing petition is not maintainable because it is well settled principle of law that if a remedy to a person is available in the statute, he should avail Patna High Court Cr.Misc. No.5018 of 2012 (7) dt.14-03-2012 the aforesaid remedy and the quashing petition shall not be entertained.
9. It is further contended by him that confiscation proceeding under Bihar Special Courts Act, 2009 is a separate and independent proceeding and, therefore, even if the Vigilance Case No. 70 of 2007 and Special Case No. 41 of 2007 have been stayed by this court in Cr. W.J.C. No. 1009 of 2011, then also, the above-said confiscation proceeding cannot be stayed.
10. Having heard the rival contentions of both the parties, I have gone through the record as well as relevant provisions of Bihar Special Courts Act, 2009.
11. Before dealing with the questions involved in this case, I would like to say that the Bihar Special Courts Act, 2009 has been enacted for the constitution of special courts for the speedy trial of certain class of offences and for confiscation of the properties involved. The object of aforesaid Act is to prosecute the corrupt Public Servants as well as to confiscate their ill-gotten assets which have been accumulated through illegal practices. The aforesaid Act has been enacted with a view to give speed to the cases lodged against corrupt public servants. The aforesaid act has been divided in four chapters; The first chapter deals with definitions, the second chapter deals Patna High Court Cr.Misc. No.5018 of 2012 (7) dt.14-03-2012 with establishment of special courts and its power, the third chapter deals with confiscation of the properties whereas; the fourth chapter deals with miscellaneous matters. In the present case, the only question is involved as to whether the learned Special Judge, Vigilance-Ist, Patna committed an error in refusing stay of Confiscation Case No. 01 of 2010 or not.
12. As I have already said that the subject of confiscation of property has been dealt with in chapter-3 of the Bihar Special Courts Act, 2009 and therefore, I would like to extract Section-13 and 14 of Chapter III of the aforesaid Bihar Special Courts Act, 2009 hereinbelow as the aforesaid provisions are relevant for deciding the question involved in this petition. The said provisions are given hereinbelow as:-
Sec-13: Confiscation of Property: (i) Whether the State Government, on the basis of prima facie evidence, have reasons to believe that any person, who has hold 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 Patna High Court Cr.Misc. No.5018 of 2012 (7) dt.14-03-2012 location for the time being of any such money and other property, and shall, if necessary, give other particulars considered relevant to the context.
13. Section-14 of the above-said Act runs as follows:-
Sec. 14. Notes for confiscation:- (1) Upon receipt of an application made under Section-13 of this Act, the authorized officer shall serve a notice upon the person in respect of whom the application is made (hereafter referred to as the person affected) calling upon him within such time as may be specified in the notice which shall not be ordinarily less than thirty days, to indicate the source of his income, earnings or assets, out of which or by means of which he has acquired such money or property, the evidences on which he lies and other relevant information and particulars, and to show cause as to why all or any of such money or property or both, should not be declared to have been acquired by means of the offence and be confiscated to the State Government.
(2) Where a notice under sub-section (1) to any person specifies any money or property or both as being held on behalf of such person by any other such person, a copy of the notice shall also be served upon such other person. (3) Notwithstanding anything contained in sub-section (1), the evidence, information and particulars brought on record before the authorized officer, by the person affected or the State Government shall be open to be rebutted in the trial before the Special Court provided that such rebuttal shall be confined to the trial for determination and adjudication of guilt of the offender by the Special Court under the Act.
14. From bare perusal of Section-13 of above-said Act, it is explicit clear that if on the basis of prima facie evidence, the State Government have reason to believe that any person being public servant committed the offence, the State Government may 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 Patna High Court Cr.Misc. No.5018 of 2012 (7) dt.14-03-2012 procured by means of offence. The aforesaid Section clarifies that for authorizing the Public Prosecutor to making an application to authorize officer for confiscation, there is no need of taking cognizance of the offence by the Special Court and, therefore, the Confiscation Proceeding may be initiated pre-cognizance stage also. The aforesaid provision clearly indicates that confiscation proceeding is an independent proceeding and it has no concern with any other case and, therefore, in my view, the learned Special Judge, Vigilance-Ist, Patna has rightly refused to stay the above-said Confiscation Proceeding.
15. As I have already stated that the provisions of confiscation of property has been dealt with in Chapter-3 of the Bihar Special Courts Act, 2009 and in the aforesaid chapter, in Section-17, it has specifically been stated that any person aggrieved by any order of the authorized officer under this chapter, may appeal to the High Court within thirty days from the date on which, the order appealed against, was passed. Therefore, the aforesaid Section-17 of Bihar Special Courts Act, 2009 makes a provision for appeal in respect of any order passed under Chapter-3 of Bihar Special Courts Act, 2009. So far as Section-9 of Bihar Special Courts Act, 2009 is concerned, the same has been inserted in Chapter-2 of the above-said Act and the aforesaid Section-9 relates to the judgment and orders passed in Chapter-2 of the aforesaid Act and, therefore, there is no ambiguity between Section-9 and Section-17 of the Bihar Special Courts Act, 2009. Therefore, I do agree with the submission of learned counsel Patna High Court Cr.Misc. No.5018 of 2012 (7) dt.14-03-2012 appearing for Vigilance that this petition under Section-482 of the Cr.P.C. is not maintainable and petitioner ought to have challenged the impugned order in appeal.
16. On the basis of aforesaid discussions, I do not find any merit in this petition and, accordingly, this petition stands dismissed at the stage of admission itself.
AKV/- ( Hemant Kumar Srivastava, J.)