Usha Devi v. The State Of Bihar

a house wife and married to Sri Kant Prasad, who for the present, happens to be Executive Engineer under Rural Works Department, Government of Bihar. It has further been disclosed that there was trap and it has been alleged that petitioner’s husband was apprehended while he was accepting bribe. He was further vellicate by raid and during course thereof assets were evaluated and found amassed disproportionate to income. As some of the properties were found in name of petitioner also, therefore, notice -2- against her has also been issued in pursuance of which she appeared, raised an objection over legality of the notice issued against her which has also been brought up under challenge before this Court. Sole contention on behalf of petitioner happens to be that no confiscation proceeding can be initiated against the petitioner. Further submitted that because of the fact that confiscation of property is only permissible against delinquents whose status happens to be that of public servant so defined under Section 2(c) P.C. Act.

Because of the fact that petitioner does not happens to be public servant within the definition hence the notice against her happens to be illegal, bad and against the purview of the statutory provision. Not only this, it has further been argued that the proforma of the notice happens to be in printed form and certain vacant places have only been filled up, which show non-application of judicial mind. Furthermore the contents of notice inspires that the same has been served upon the petitioner assuring her status to be of public servant. Hence as the notice appears to be contrary to the mandate of law does not justify continuance of further proceeding. At the other hand, the learned counsel for the vigilance submitted that instant petition is not maintainable -3- because of the fact that petitioner had already entered into her defence before the learned lower court as is evident from order dated 17.01.2011.

Also submitted that the order is appealable one and when there happens to be presence of efficacious remedy then in that event, ordinarily the writ is not entertain able. Further submitted that during course of search and seizure certain documents have also been seized standing in joint name of petitioner along with her husband. Because of the fact that petitioner herself had claimed to be house wife having no source of independent income and further taking into account the scope of Benami transaction (Prohibition of Accusation) Act, whereunder the land purchased in name of wife will not come within the ambit of aforesaid law, hence it will be presumed that the property having in name of petitioner will be deemed to be the property held by her husband and that being the position, the issuance of notice against the petitioner happens to be legally acceptable. Not only this, after all principle of natural justice has to be followed.

So far proforma of notice is concerned, as it has to be issued on account of accumulation of property by a public servant disproportionate to his known source, hence all the persons in whose name property stands being a name sake attracts same -4- treatment. The scope of writ jurisdiction on this score was earlier subject to adjudication as reported in 2012(1) PLJR 837. The relevant para happens to be para-9. the mere pendency “9. The language of the Section indicates as confiscation proceedings may not operate as a bar to maintaining any suit or other legal proceeding because the words ‘ordered to be confiscated under Section 15’, appearing in Section 22 of the Act, clearly indicates that the bar may operate only when the properties have been ordered to be confiscated. However, if the proceedings for confiscation of the proceedings (sic) has been initiated and that is pending adjudication of the Authorized Officer, then in my considered view, any Court, even acting under Article 226 or 227 of Constitution of India should refrain from interfering with the special proceedings after an application under Section 13 of the Act has been filed as the very interference shall be obstructing the exercise of a very special power of a special forum and thus frustrate the object of the Act for which it was enacted.

Further, the confiscation proceeding to be initiated or already initiated, in any case, has never to end in a final order, it may be challenged under Section 17 of the Act before this Court and in case any instances of prejudice or other illegality was pointed out, this Court may set the same right. Acting under Article 226 or 227 of the Constitution may not allow an appropriate lawful forum to exercise its jurisdiction to adjudicate the proceedings and pas a final order under Section 15 of the Act. In the present view of mine, I am of the opinion that neither the writ petition nor the criminal revision petition is maintainable”. It is basic principle of law that no order should be passed against a person who has not been given an opportunity to defend his right and that happens to be reason behind that there -5- appears provision under Bihar Special Courts Act with regard to notice, appearance filing of defence statements.

The aforesaid view has further find support as held and reported in 2012(1) PLJR 194 and the relevant para-5. “5. …They missed to look to the provision of Section 14 of the Act. If they could have consulted the provision, they could have come to the conclusion that the petition could not be proceeded with and the order could not be passed unless the delinquent Officer or the persons who were supposed to be holding the properties which were allegedly acquired by commission of the offence under Section 2(d) of the Act, had been properly noticed and required to appear and file their defence statements. The above requirement was so plainly appearing from the provision that no one could have missed impleading necessary persons as opposite parties while presenting the petition under Section 13 of the Act and no Court could have itself missed issuing the notice to such necessary persons. This aspect of the matter was highlighted by me recently in another Criminal Appeal bearing no.959 of 2011 (Naga Ram Vs.

State of Bihar) in which also a similar order was passed by the same learned Judge in which he had also not issued any notice to persons who were, undisputedly, holding properties, which were believed by the State Government to be acquired by the commission of the offence under Section 2(d) of the Act. I have highlighted the necessity of imipleading persons other than the delinquent Officer as necessary parties in the judgment of Naga Ram (supra) and that aspect of the matter has properly been dealt with by me in paragraphs-5, 6, 7, 8 and 9. In fact, if one had considered the provision of Section 14 of the Act, one would have found that it was the duty of the Authorized Officer to have issued notice to all persons who appeared from statements made and prima facie evidence produced by the State and others to hold -6- money or other properties on behalf of he delinquent public servant.” Thus noticing the petitioner to put her defence relating to the properties having in her name is no way going to prejudice her right more particularly in the background of the fact that she herself failed to acknowledge source and explanation having the property in her name in her pleading.

Petitioner has put much stress over the point that as the petitioner cannot be identified as public servant, hence issuance of notice against her happens to be bad, illegal and without jurisdiction. To appreciate the same and decide the issue in its right perspective it looks better to see relevant provisions. As per Section 2(e) the offence has been defined as “Offence” means an offence of criminal misconduct which attracts application of Section 13(1)(e) of the P.C. Act, either independently or in combination with any other provision of the Act or any of the provision of Indian Penal Code”. When Section 13(1)(e) of P.C. Act is gone through, the same prescribes: Sec 13(1) (e) - if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactory account, of pecuniary resources or property disproportionate to his -7- known sources of income.

Explanation–For the purposes of this section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to be a public servant”. Therefore, the act is not confined only to the extent of possession of the properties disproportionate with the income of the public servant rather also includes the property held in by others on his behalf. The plea of the petitioner will be adjudicated upon only after having her presence before the Authorized Officer and so noticing of petitioner cannot be said to be illegal as well as in utter violation of law. Whenever in a writ petition the facts and law are so intermingle then in that event maintainability of the writ petition has been doubted and for that reference may have 2011(5) SCC 607 and the relevant para-92.

The High Court in its writ jurisdiction will not enquire into complicated questions of fact. The High Court also does not sit in appeal over the decision of an authority whose orders are challenged proceedings. The High Court can only see whether the authority concerned has acted with or without jurisdiction. The High Court can also act when there is an error of law apparent on the face of the record. The High Court can also interfere with such decision where there is no legal evidence before the -8- authority concerned, or where the decision of the authority concerned is held to be perverse i.e. a decision which no reasonable man could have arrived at on the basis of materials available on record. Where an enquiry into complicated questions of fact is necessary before the right of aggrieved party to obtain relief claimed may be determined, the Court may, in appropriate cases, decline to enter upon that enquiry, but the question is always one of discretion and not of jurisdiction of the Court which may, in a proper case, enter upon a decision on questions of fact raised by the petitioner. Further detailed discussion on this score is being forbidden so that the learned lower court should not find itself in awkward position. After having forging discussions on the points so raised the instant petition appears to be devoid of merit and is accordingly dismissed. (Aditya Kumar Trivedi, J) PN/-