Karnataka High Court
Suchitra W/O Sanagappa Soodi vs The State Of Karnataka on 6 June, 2023
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CRL.A No. 100499 of 2022
C/W CRL.A No. 100495 of 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100499 OF 2022 (-)
C/W
CRIMINAL APPEAL NO. 100495 OF 2022
IN CRIMINAL APPEAL NO. 100499 OF 2022
BETWEEN:
SANAGAPPA S/O IRAPPA SOODI
AGE. 48 YEARS, OCC. SERVICE,
R/O MAHALINGAPUR TQ. MUDHOL,
NOW R/O.BADAMI 587201
TQ. BADAMI DIST. BAGALKOT
...APPELLANT
(BY SRI. N. L. BATAKURKI, ADVOCATE)
Digitally AND:
signed by J
MAMATHA
J
MAMATHA Date:
2023.06.13
THE STATE OF KARNATAKA
12:27:35 - BY ACB PS BAGALKOT -587301
0700
NOW BAGALKOT LOKAYUKTA POLICE
REP. BY STATE PUBLIC PROSECUTOR LOKAYUKTA.
...RESPONDENT
(BY SRI. SRINIVAS B. NAIK, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S 11 OF CRIMINAL LAW
(AMENDMENT) ORDINANCES ACT 1944, SEEKING TO SET ASIDE
THE ORDER DATED 06.08.2022 PASSED BY THE COURT OF PRIL
DISTRICT AND SESSIONS JUDGE BAGALKOT IN SPECIAL CASE
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CRL.A No. 100499 of 2022
C/W CRL.A No. 100495 of 2022
NO.74/2019 (AB.PS.CR. NO.7/2018) U/S 3(1) CRIMINAL LAW
(AMENDMENT) ORDINANCES ACT 1944 IN SO FAR AS APPELLANT IS
CONCERNED.
IN CRIMINAL APPEAL NO. 100495 OF 2022
BETWEEN:
SUCHITRA W/O SANAGAPPA SOODI
AGE. 43 YEARS, OCC. HOUSEHOLD WORK,
R/O MAHALINGAPUR TQ. MUDHOL,
...APPELLANT
(BY SRI. P. N. HOSAMANE, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY ACB PS BAGALKOT -587301
NOW BAGALKOT LOKAYUKTA POLICE
REP. BY STATE PUBLIC PROSECUTOR LOKAYUKTA.
...RESPONDENT
(BY SRI. SRINIVAS B. NAIK, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S 11 OF CRIMINAL LAW
(AMENDMENT) ORDINANCES ACT 1944, SEEKING TO SET ASIDE
THE ORDER DATED 06.08.2022 PASSED BY THE COURT OF PRIL
DISTRICT AND SESSIONS JUDGE BAGALKOT IN SPECIAL CASE
NO.74/2019 U/SEC 3 (1) CRIMINAL LAW (AMENDMENT)
ORDINANCES ACT 1944 AD INTERIM ORDER OF ATTACHMENT OF
PROPERTIES OF APPELLANT.
THESE CRIMINAL APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 100499 of 2022
C/W CRL.A No. 100495 of 2022
JUDGMENT
Appellant-accused filed Crl.A.No.100499/2022 and appellant-wife of accused filed Crl.A.No.100495/2022, challenging order of trial Court on the file of Prl. District and Sessions Judge, Bagalkot in Special Case No.74/2019, dated 6.8.2022.
2. These two appeals are arising out of the case registered against accused in Spl.Case No.74/2019 on the file of Prl. district and Sessions Judge, Bagalkot. The investigating officer filed application under Section 3(1) of Criminal Law (Amendment) Acts and Ordinances, 1944 (for short the Ordinances). Hence, both these appeals are taken up together for disposal by this common judgment.
3. The factual matrix leading to case of prosecution can be stated in nutshell to the effect that investigating officer filed application under Section 3(1) of the Ordinances for attachment of properties on the allegation that accused and his wife have acquired properties disproportionate to known source of income of accused. The Notice of said application was given only to accused, who filed objections. The trial Court after hearing both sides proceeded to pass order dated -4- CRL.A No. 100499 of 2022 C/W CRL.A No. 100495 of 2022 6.8.2022 and allowed the application filed by investigating officer under Section 3(1) of the Ordinances and ad-interim order is passed attaching the properties of accused and his wife shown in the schedule.
4. Accused challenged ad-interim attachment order passed in terms of Section 4 of the Ordinances by filing appeal No.100499/2022 and his wife challenged the said order by filing Crl.A.No.100495/2022. It is contended by appellants in both the cases that order passed by the trial Court is not in conformity with the procedure contemplated for attachment of properties in terms of Sections 3 and 4 of the Ordinances. The wife of accused has contended that notice of the application filed under Section 3(1) of the Ordinances by investigating officer has not been issued and no opportunity of being heard was given to her before making interim attachment order in terms of Section 4 of the Ordinances.
5. In response to notice of both the appeals, special counsel Sri.Srinivas B Naik appeared for respondent in both the appeals.
6. Heard the argument of both sides.
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7. It is not in dispute that on the basis of application field by investigating officer in terms of Section 3(1) of the Ordinances, notice was given only to accused, who filed objections. The trial Court after hearing both sides proceeded to pass order dated 6.8.2022 and allowed the application filed by investigating officer under Section 3(1) of the Ordinances by ordering ad-interim order for attachment of properties as shown in the schedule pertaining to accused and that of his wife in terms of Section 4 of the Ordinances.
8. Learned counsel for the appellants in both the appeals have contended that procedure contemplated under the Ordinances has not been followed by the trial Court before ordering ad interim attachment of properties belongs to accused and that of his wife and therefore, interference is required.
9. Learned counsel for appellant in criminal appeal.No.100495/2022 relied on the judgment of Co-ordinate Bench of this Court in Criminal Petition NO. 11239/2012 C/W Criminal Petition No.11240/2012 in B. Nagaratna V/s. Karnataka Lokayukta and contended that properties of wife cannot be attached, who is not arraigned as accused. -6- CRL.A No. 100499 of 2022 C/W CRL.A No. 100495 of 2022
10. Per Contra, Sri.Srinivas B Naik, learned counsel for respondents in both the cases justifies the order passed by the trial Court in ordering ad-interim attachment of the properties belongs to accused and that of his wife. It is contended that it is open for the accused and his wife to place necessary evidence before the trial Court in terms of Section 5 of the Ordinances to the ad-interim order passed by the trial Court in terms of Section 4 of the Ordinances. If sufficient cause is shown by appellants in both the appeals by producing required documents to show the source of income for acquiring the properties as per schedule, then the trial Court may order to make either absolute or to very it by ordering to release the properties standing in the name of accused or his wife in terms of Section 5. Therefore, interference of this Court is not required.
11. The trial Court has made ad interim attachment order by exercising power under Section 4 of the ordinances. Now it is open for the appellant to file necessary objections before the trial Court.
12. On going through Section 3 of the Ordinances, where application for attachment of the property is sought by -7- CRL.A No. 100499 of 2022 C/W CRL.A No. 100495 of 2022 the State, the provision of order XXVII of CPC for attachment of properties under this ordinances has to be applied in terms of Section 3(2) of the ordinances.
13. In terms of Section 3(3) an application under sub-section (1) shall be accompanied by one or more affidavit, 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 properties believed to have been procured by means of the offence. The application shall also furnish
(a) any information available as to the location for the time being of any such money or other properties , and shall, if necessary, give particulars, including the estimated value, of other properties of the said person;
(b) the names and addresses of any other persons believed to have or to be likely to claim, any interest or title in the properties of the said person.
14. The trial Court on receipt of such application in terms of Section 3 of the ordinances, the District Judge in terms of Section 4 shall, unless for reasons to be recorded in -8- CRL.A No. 100499 of 2022 C/W CRL.A No. 100495 of 2022 writing he is of the opinion that there exists no prima facie grounds for believe 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 properties, pass without delay an ad-interim order attaching the money or other properties alleged to have been so procured, or if it transpires that such money or other properties is not available for attachment, such other properties of the said person of equivalent value as the District Judge may think 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 affidavit accompanying the application.
15. In terms of Section 4 (2) of the ordinances, 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 properties 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 order of attachment should not be made absolute. On conjoint reading -9- CRL.A No. 100499 of 2022 C/W CRL.A No. 100495 of 2022 of Section 3(1) to 3(3) and 4(1) of Ordinances, it would go to show that no enquiry is contemplated before passing order in terms of Section 4(1) of Ordinances. The examination of the person or persons making the affidavits accompanying the application is discretionary. If in terms of Section 4(1) of the Ordinances order is passed then show cause notice has to be issued as contemplated in terms of Section 4(2) of the Ordinances.
16. In terms of Sub Section (3) of Section 4 of the ordinances, the District Judge shall also issue notices, accompanied by copies of the documents accompanying the notice under sub-section (2), to all persons represented to him as having or being likely to claim, any interest or title in the properties of the person to whom notice is issued under the said sub-section calling upon each such person to appear on the same date as specified in the notice under the said sub- section and make objection if he so desires to the attachment of the properties or any portion thereof on the ground that he has an interest in such properties or portion thereof.
17. In terms of Section 4(4) of the Ordinances, any person claiming an interest in the attached property or
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CRL.A No. 100499 of 2022C/W CRL.A No. 100495 of 2022 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. If upon such notice, any objection is filed then the same has to be determined in terms of Section 5 of the ordinances.
18. In the present case, indisputably no any notice of the application filed by investigating officer in terms of Section 3(1) of the Ordinances was given to the wife of accused, who is appellant in Crl.A.No.100495/2022 before passing the order in terms of Section 4 of the Ordinances.
19. Learned special counsel Sri.Srinivas B Naik representing for respondent submits that now notice has been taken by wife of accused, who has filed appeal in Crl.A.No.100495/2022. Therefore, opportunity may be given, directing the parties to appear before the court and to file necessary objections and proceed to dispose of the application from the stage of Section 4(2) of the Ordinances.
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CRL.A No. 100499 of 2022C/W CRL.A No. 100495 of 2022
20. The purpose of investigating officer invoking Section 3(1) of the Ordinances is to preserve the property or value of the property to recover the same from accused to which he is held to be liable to answer. In order to avoid unnecessary delay, not withstanding the technicalities to dispose of the application filed by investigating officer at an earliest with liberty to file objections after compliance of Section 4 of the Ordinances and to decide in terms of Section 5 of the Ordinances is ordered will meet the ends of justice. Therefore, to that extent interference of this Court is required for giving reasonable opportunity to the appellants before passing the order in terms of Section 5 of the ordinances. Consequently, proceed to pass the following:
ORDER Appeal filed by accused in Crl.A.No.100499/2022 and appeal filed by wife of accused in Crl.A.No.100495/2022 are hereby allowed.
Appellants in both the appeals are directed to appear before the trial Court and to file necessary objections or to produce documents in support of their claim before passing
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C/W CRL.A No. 100495 of 2022 order on application filed by investigating officer in terms of Section 3(1) of the Ordinances and proceed to hear after Section 4(2) of the ordinances. Thereafter, the trial Court shall proceed to dispose of the same, in accordance with law.
Parties are directed to appear before the trial Court on 13.7.2023.
(Sd/-) JUDGE VB