The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.170 of 2016 & 200 of 2016 In CRLA No.170 of 2016 Dilip Kumar Mohanty and another …. Appellant(s) Mr. A. Mohanty, Sr. Adv. assisted by Mr. P.K. Dash, Adv. -versus- State of Orissa (GA) …. Respondent(s) Mr.S.Das,Sr.SC(Vig) In CRLA No.200 of 2016 Sudeshna Mohanty …. Appellant(s)
Legal Reasoning
Mr. A. Mohanty, Sr.Adv. assisted by Mr. P.K. Dash, Adv. -versus- State of Orissa (GA) …. Respondent(s) Mr.S.Das,Sr.SC(Vig) CORAM: JUSTICE ANANDA CHANDRA BEHERA Date of Hearing :11.01.2024 :: Date of Judgment :11.01.2024 1. Since, both these Criminal Appeals have been preferred by the appellants challenging the same and one Judgment passed on dated 23.03.2016 in Confiscation Case No.1 of 2013 by the Court of the Authorized Officer, Specials Court, Bhubaneswar, then both the appeals Page 1 of 7 // 2 // have been taken up together for their final disposal analogously through this common Judgment. 2. 3. Heard from the learned counsels of both the sides. Both the Criminal Appeals vide CRLA No.170 of 2016 and CRLA No.200 of 2016 have been preferred under Section 17 of the Orissa Special Courts Act 2006 challenging the Judgment dated 29.03.2016 passed in Confiscation Case No.1/2013 by the Authorized Officer, Special Court, Bhubaneswar, wherein the Authorized Officer, Special Court, Bhubaneswar has held that, the appellant No.1 in CRLA No.170 of 2016 has committed offence in terms of the Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 and his disproportionate assets to his known source of income during the check period is to the tune of Rs.1,76,93,853.37p. (Rupees One Crore Seventy Six Lakhs Ninety Three Thousand Eight Hundred Fifty Three and Thirty Seven Paisa Only) and the same shall be liable to be confiscated to the Government of Odisha and the same shall be free from all encumbrances. 4. In Confiscation Case No.1 of 2013, the appellants in CRLA No.170 of 2016 were Opposite Party Nos.1 & 2 and the appellant in CRLA No.200 of 2016 was Opposite Party No.3. The Confiscation Case No.1/2013 had arisen out of the Vigilance Case vide T.R. No.13/2012(TR No.69/2007). In that criminal trial vide T.R. No.13/2012(TR No.69/2007), both the appellants in CRLA No.170 of 2016 being the husband and wife respectively were facing Page 2 of 7 // 3 // trial having been charged under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 and Section 109 of the IPC, 1860, wherein both the appellants in CRLA No.170 of 2016 were found guilty and they were convicted and sentenced thereunder vide its Judgment dated 30.09.2015. They have preferred an appeal before the Hon’ble Courts challenging the said Judgment of Conviction and sentence passed against them in criminal trial vide T.R. No.13/2012 (T.R. No.69/2007). As per the provisions of law envisaged in Sections 13,14,15,16 & 19 of the Orissa Special Courts Act, 2006, confiscation proceedings appear to be contingent to the result of the criminal case i.e. vigilance case initiated against the person effected under the provisions of chapter-III of the Orissa Special Courts Act, 2006. Because, acquittal of the person effected from the criminal case later on entitle him/her a release of such property in his/her favour. So, on conjoint reading of the provisions of law envisaged in Section 13(1)(e) & 13(2) of the P.C. Act, 1988 and all the Sections in Chapter-III of Orissa Special Courts Act, 2006, it is unambiguously clear that, “Confiscation of property or money on both shall be contingent upon the final outcome of criminal trial faced by the person affected for the offence under Section 13(1)(e) of the P.C. Act, 1988”. 5. On perusal of the Judgment of the trial court passed in the criminal trial faced by the persons affected i.e. the appellants in T.R. Page 3 of 7 // 4 // No.13/2012(T.R. No.69/2007) it appears that, the trial court after taking into account, the evidence and materials available in the record has come to the conclusion that, the disproportionate assets of the accused persons in that T.R. No.13/2012 (T.R. No.69/2007) (those are the appellants in CRLA No.170 of 2016) are to the tune of Rs.42,31,608.00p. But whereas, in the Judgment passed on dated 29.03.2016 in Confiscation Case No.1/2013, the Authorized Officer, Special Court, Bhubaneswar has directed to confiscate the properties of the appellants to the tune of Rs.1,76,93,853.37p (Rupees One Crore Seventy Six Lakhs Ninety Three Thousand Eight Hundred Fifty Three and Thirty Seven Paisa Only). When as per law, the Confiscation of property or money or both shall be contingent upon the final outcome of the criminal trial faced by the person affected for the offence under Section 13(1)(e) of the P.C. Act, 1986, for which, in this situation, at any cost, the confiscation of properties of the appellants cannot be in excess of the amount i.e. Rs.42,31,608.00p. So, the final order for confiscation of properties (assets) in the hands of the appellants passed in the Judgment dated 29.03.2016 in Confiscation Case No.1/2013 by the Court of Authorized Officer, Special Court, Bhubaneswar should have been limited to the value i.e. to the tune of Rs.42,31,608.00p. in consonance to the findings about the same made by the trial court in T.R. No.13/2013 (T.R. No.69/2007). Page 4 of 7 // 5 // Therefore, the directions given by the court of the Authorized Officer, Special Court, Bhubaneswar in the Judgment dated 29.03.2016 of Confiscation Case No.1/2013 for Confiscation of the properties in the hands of the appellants to the tune of Rs.1,76,93,853.37p (Rupees One Crore Seventy Six Lakhs Ninety Three Thousand Eight Hundred Fifty Three and Thirty Seven Paisa Only) cannot be sustainable under law. For which, there is justification under law for making interference with the same through these appeals filed by the appellants. So, the Judgment dated 29.03.2016 passed in Confiscation Case No.1/2013 by the Authorized Officer, Special Court, Bhubaneswar is required to be modified concerning the total amount of value of the properties in the hands of the appellants to be confiscated subject to the result of Criminal Appeal No.494 of 20105 pending before the Hon’ble Courts. 6.
Decision
In the result, both the appeals preferred by the appellants are allowed in part on contest. 7. The Judgment passed on dated 29.03.2016 in Confiscation Case No.1 of 2013 by the Authorized Officer, Special Court, Bhubaneswar regarding its direction for confiscation of the properties in the hands of the appellants to the tune of Rs.1,76,93,853.37p is modified (reduced) from Rs.1,76,93,853.37p to Rs.42,31,608.00p. Page 5 of 7 // 6 // 8. During the course of argument, the learned counsel for the appellants submitted that, the appellants are interested for depositing Rs.42,31,608.00p. in order to save the properties in their hands from confiscation. Because, the properties sought to be confiscated have been using by them as their bare necessities and in case of confiscation of the same, they shall face much inconvenience and difficulties. On this aspect, the proviso of Sub-clause (3) of Section-15 of the Orissa Special Courts Act, 2006 clarifies that, “if the market price of the property confiscated is deposited with the authorized officer, the property shall not be confiscated.” When the appellants are interested to deposit the above total amount of money i.e. Rs.42,31,608.00p., which has been finally held by the decision of the trial court in the Judgment of T.R. No.13/2012 (T.R. No.69/2007) that, the total value of the disproportionate properties in the hands of the appellants as Rs.1,76,93,853.37p and when the proviso of Sub-clause (3) of Section 15 of the Orissa Special Courts Act, 2006 permits the same, then at this juncture, the appellants are jointly and severally directed to deposit Rs.42,31,608.00p. before the Authorized Officer, Special Court, Bhubaneswar within a period of two months hence in order to save the properties in their hands from confiscation indicating the reference of all the cases as stated above relating to this matter subject to the result of the Criminal Appeal vide Criminal Appeal No.494 of 2015, which has been Page 6 of 7 // 7 // preferred by the appellants in CRLA No.170 of 2016 against the Judgment of conviction and sentence passed by the trial court in T.R. No.13/2012 (TR No.69/2007). 9. In case of depositing the aforesaid amount by the appellant or appellants within the stipulated period as indicated above, the Court of Authorized Officer, Special Court, Bhubaneswar shall keep the said amount in an interest bearing account in any nationalized Bank. In case of failure of the appellant or appellants to deposit the aforesaid amount within due time as indicated above, necessary steps as per law can be taken for confiscation of the properties in the hands of the appellants. As per the observations and clarifications made above, both the Criminal Appeals vide CRLA No.170 of 2016 and CRLA No.200 of 2016 are disposed of finally with the aforesaid modifications/alternations of the impugned Judgment dated 29.03.2016 passed in Confiscation Case No.1/2013 by the Authorized Officer, Special Court, Bhubaneswar. Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack, India Date: 12-Jan-2024 17:31:54 Orissa High Court, Cuttack. 11th of January, 2024//Rati Ranjan Nayak// Senior Stenographer (A.C. Behera) Judge Page 7 of 7