The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.521 of 2019 (In the matter of an appeal under Section 17 of the Orissa Special Court Act, 2006) Bhagaban Panda ……. Appellant -Versus- State of Odisha (Vigilance)……. Respondent
Legal Reasoning
Bench as well as the judgment of this Court in the case of Pramod Kumar Mohanty (supra). 11. In view of the judgments in the cases of Sadananda Mishra (supra) & Pramod Kumar Mohanty (supra), the present Criminal Appeal fails and accordingly, the same is dismissed being devoid of merit. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 30th of July, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Aug-2024 11:28:45 Page 7 of 7
Arguments
For the Appellant : Ms. A.K. Dei, Advocate For the Respondent : Mr. Srimanta Das, Sr. Standing Counsel (Vig) CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing : 18.07.2024 : Date of Judgment: 30.07.2024 S.S. Mishra, J. This Criminal Appeal is directed against the order dated 02.07.2019 passed by the Authorised Officer, Special Court, Cuttack in Confiscation Case No10 of 2017 whereby the application filed by the appellant for dropping of the confiscation proceeding on the ground that the same is not maintainable in view of the Prevention of Corruption Amendment Act, 2018 has been rejected. 2. Heard Ms. A.K. Dei, learned counsel for the appellant and Mr. Srimanta Das, learned Senior Standing Counsel, Vigilance. 3. The F.I.R. was registered against the present appellant alleging commission of offences under Sections 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988. Accordingly, a case was registered as C.T.R. Case No.18 of 2006 before the learned Special Judge, Vigilance, Sambalpur. 4. The essence of the accusations against the appellant is that while he was working as Executive Engineer, Minor Irrigation Department, Phulbani, his house and other premises were searched by the Vigilance Department and an enquiry was conducted. Subsequently, F.I.R. was lodged against the appellant, which was registered as Sambalpur Vigilance P.S. Case No.20 of 2004 under Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act, 1988 and investigation was taken up. After completion of investigation, charge sheet was filed against the appellant that during the check period from 01.10.1995 to 27.02.2004, he being a public servant, was found in possession of assets disproportionate to his Page 2 of 7 known sources of income. The approximate income of the appellant during the said period was found to be Rs.16,69,393.13. His expenditure during that period was Rs.9,76,646/- and he was in possession of movable and immovable assets to the tune of Rs.32,44,044/-. It was thus alleged that the appellant was in possession of disproportionate assets of Rs.25,23,994/-, which he cannot account for. 5. Under the provisions of Section 13(1) of Orissa Special Courts Act, 2006, confiscation proceeding was initiated against the appellant before the learned Authorised Officer so as to confiscate the assets/properties alleged to have been acquired by the proceeds of the crime allegedly committed by the accused. 6. The appellant moved an application inter alia seeking dropping of the said confiscation proceeding questioning the maintainability in view of the amended provision of Prevention of Corruption Act (as amended in the year 2018). 7. The said application was turned down by the Authorised Officer, Special Court, Cuttack by order dated 02.07.2019 in the Confiscation Case No.10 of 2017. Page 3 of 7 8. The appellant in the present appeal has assailed the aforementioned order attacking the very maintainability of the confiscation proceeding before the Authorised Officer under the provisions of the Special Courts Act, 2006 on the teeth of the amended provisions of Prevention of Corruption Act. 9. The same issue fell for consideration before this Court in a batch of appeals. This Court vide judgment dated 23.09.2022 passed in CRLA No.748 of 2018 (Sadananda Mishra v. State of Odisha (Vigilance Department) and batch have inter alia held as under: “19. Reverting to the contentions with regard to repugnancy and validity of the provision of confiscation under the Special Courts Act, it would be apposite to mention here that the question of confiscation in the Special Courts Act at-interim measure which is dependent on the ultimate result that is passed in the trial against the accused facing the trial for commission of offence under Section 13(1)(e) of the P.C. Act. But, the question of forfeiture under the 1944 Ordinance is a post-trial measure depending on the factum of penalty of the conviction, if any recorded and also finding with regard to the ill- gotten money acquired under the P.C. Act, a scheduled the confiscation proceeding of the Odisha Special Courts Act has already been upheld by the Apex Court in the case of Jogendra Kumar Jaiswal (supra) notwithstanding the existence of the 1944 Ordinance. The amendment brought as offence. The validity of Page 4 of 7 regard the detailed aforesaid does not provide procedure with regard to confiscation and when such a confiscation to be exercised by the Special Judge which only says that so far offence under the P.C. Act is concerned, a scheduled offence under the 1944 Ordinance, in respect of to the property with attachment, administration and confiscation has to be exercised by the Special Judge under the P.C. Act in place of District Judge. No detailed procedure for such confiscation has also been provided. So, notwithstanding the fact that the word ‘confiscation’ was missing under the 1944 Ordinance, it is fallacious to say that the power of confiscation which has given in the Odisha Special Courts Act to the Authorized Officer, has now to be exercised by the Special Court after such amendment in view of proviso to Article 254(2) of the Constitution of India, more so when the aforesaid confiscation in the Special Court Act is an ad-interim measure which is dependent on the final outcome of the case of accused there before the Special Judge, under the said Act. The said amendment does not touch any provisions of the Odisha Special Courts Act. Hence, the proviso to Article 254(2) of the Constitution of India does not make the provisions of confiscation under the Special Courts Act inoperative after such amendment in the P.C. Act. So, in the considered opinion of this Court, notwithstanding mentioning of the word ‘confiscation’ which appears to have been used as against the word ‘forfeiture’ mentioned in 1944 Ordinance, the same is not occupying the field with regard to ad-interim confiscation of the ill-gotten money allegedly acquired by means of the offence committed under Section 13(1)(e) of the P.C. Act by the persons, who held high public or political office and triable by the Special Court under the Odisha Special Courts Page 5 of 7 is therein proceeding Act. Therefore, the contention that is advanced that the Authorized Officer in the Special Court, after the aforesaid amendment is denuded of the power of confiscation and, as such, a not confiscation maintainable, is devoid of merit, even though this Court do not agree with the rejection of the prayer made by the Authorized Officer in some cases with regard to the fact that prospective application of the amendment being a ground for rejection of such prayer. Approving such reasoning of Authorized Officer would amount to giving a seal of approval to the contention made that proviso to Article 254(2) has application to such amendment, to which this Court do not agree, as according to my humble opinion, the aforesaid is not an enactment which affects the provisions of ad-interim confiscation, exercised under the Odisha Special Courts Act. 20. In view of the same, I am unable to agree with the submission that in such amendment the Special Judge under the P.C Act has been vested with the power of confiscation and the Authorized Officer thereafter is divested of the jurisdiction to deal with confiscation proceeding initiated under the provision of the Special Courts Act. Hence, refusal of the Authorized Officer by the impugned order to drop the proceeding cannot be found fault with on the said ground, though this Court in agreement with the ground assigned by the Authorized Officer that the aforesaid enactment having come into force after initiation of the confiscation proceeding, has no application to the proceeding the said amendment, which is retrospective in nature.” initiated prior is not to Page 6 of 7 10. Relying upon the aforementioned judgment, this Court also disposed of CRLA No.159 of 2020 [Pramod Kumar Mohanty and others Vrs. State of Odisha (Vigilance)] on 04.07.2024 and quashed the impugned order in that matter. Apart from that in the meantime, many other similar appeals have been disposed of in the light of the above mentioned judgments. 10. The issue involved in the present lis is directly covered by the aforementioned judgment of the coordinate