The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.682 of 2023 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973.) Damodar Das and another -versus- State of Odisha, Department of Vigilance …. …. Appellants Respondent Appeared in this case:- For Appellants For Respondent : : Mr. A.R. Mohanty, Advocate Mr. Srimanta Das, Sr. Standing Counsel for Vigilance Department, Appeared in this case:- CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 15.03.2024 / date of judgment :07.05.2024 A.C. Behera, J. This Criminal appeal has been preferred by the appellants under Section 17 of the Orissa Special Court‟s Act, 2006 challenging the judgment dated 31.05.2023 passed in Confiscation Case No.13 of 2015 by the Authorized Officer, Special Court, Bhubaneswar, wherein the Authorized Officer, Special Court Bhubaneswar has held that, the appellant no.1 of this appeal, i.e., Damodar Das has committed offence under Section 13(2) read with Section 13(i)(e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “P.C. Act, 1988”) and the amount of disproportionate assets to his known sources of income during the check period is to the tune of Rs.8,58,613/-(rupees eight lakhs fifty-eight thousand six hundred thirteen), which shall be confiscated to Government of Odisha being free from all encumbrances. In Confiscation Case No.13 of 2015, the appellants of this appeal being husband and wife respectively were facing enquiry before the Authorized Officer, Special Court, Bhubaneswar. 2. The Confiscation Case No.13 of 2015 was the outcome of the vigilance Case vide T.R. No.03/64 of 2015-2012. In Vigilance Case vide T.R. No.03/64 of 2015-2012, the appellant no.1 of this appeal, i.e., Damodar Das, (who is the husband of the appellant no.2 in this appeal) was facing trial having been charged under Section 13(2) read with Section 13(i)(e) of the P.C. Act, 1988, wherein, the appellant no.1 of this appeal, i.e. Damodar Das was found guilty under Section 13(2) read with Section 13(i)(e) of the P.C. Act, 1988 and he was convicted thereunder as per judgment dated 25.08.2022 passed in that T.R. No.03/64 of 2015/2012 with the observations that, the Page 2 of 11 convicted accused Damodar Das found to have acquired disproportionate assets to the tune of Rs.8,58,613/-(rupees eight lakhs fifty-eight thousand six hundred thirteen). 3. The appellant no.1 of this appeal (convicted accused in T.R. No.03/64 of 2015-2012) has preferred an appeal before the Hon‟ble Court vide CRL Appeal No.782 of 2022 challenging the aforesaid conviction and sentence passed under Section 13(2) read with Section 13(i)(e) of the P.C. Act, 1988 against him in T.R. No.03/64 of 2015- 2012, which is pending/subjudice for adjudication. As per the provisions of law envisaged in Sections 13, 14, 15, 16 and 19 in Chapter-III of the Orissa Special Court‟s Act, 2006, the result of the confiscation proceeding is contingent upon the result of the vigilance case initiated against the person affected. Because, acquittal of the person effected from the vigilance case later on shall entitle him/her to get the disproportionate assets released in his/her favour, those will have been ordered to be confiscated in the confiscation proceeding. 4. So, on conjoint reading to the provisions of law envisaged in Section 13(2) read with Section 13(i)(e) of the P.C. Act, 1988 and all the sections in Chapter-III of Orissa Special Court‟s Act, 2006, it is unambiguously clear that, “confiscation of property or money or both in Page 3 of 11 a confiscation case/proceeding shall be contingent upon the final outcome of the criminal trial faced by the person affected for the offence under Section 13(2) read with Section 13(i)(e) of the P.C. Act, 1988 in the village case. 5. On perusal of the judgment of the trial court passed on dated
Legal Reasoning
25.08.2022 in T.R. No.03/64 of 2015-2012, it appears that, the trial court after taking into account, the evidence and materials available in the record had come to the conclusion that, the value of the disproportionate assets of the accused-Damodar Das (appellant no.1 in this appeal) is to the tune of Rs.8,58,613/-(rupees eight lakhs fifty-eight thousand six hundred thirteen). 6. In the judgment of confiscation Case No.13 of 2015 passed against the appellants (those are the husband and wife), the value of the disproportionate assets in the hands of the appellants has been determined as the same amount, i.e., to the tune of Rs.8,58,613/-(rupees eight lakhs fifty-eight thousand six hundred thirteen) as it was determined in the judgment of the vigilance trial vide T.R. No.03/64 of 2015-2012. When, the final order/judgment passed in the Confiscation Case No.13 of 2015 concerning the confiscation of the disproportionate assets Page 4 of 11 of the appellants to the tune of Rs.8,58,613/-(rupees eight lakhs fifty- eight thousand six hundred thirteen) is in consonance with the judgment passed in the Vigilance Case vide T.R. No.03/64 of 2015-2012 and when the Confiscation Case No.13 of 2015 had arisen out of the Vigilance Case vide T.R. No.03/64 of 2015-2012 and when as per law, the confiscation of properties or money or both are contingent upon the final outcome of criminal trial, i.e., vigilance case faced by the person affected person for the offence under Section 13(i)(e) of the P.C. Act, 1988 and when the judgment passed in T.R. No.03/64 of 2015-2012 against the appellant no.1 has been challenged before the Hon‟ble Courts preferring CRL Appeal No.782 of 2022 by the appellant no.1-Damodar Das and when the said Criminal Appeal MNo.782 of 2022 is pending/subjudice before the Hon‟ble Courts for adjudication, then at this juncture, there is no justification under law for making any interference with the determined amount of disproportionate assets made by the Authorized Officer, Special Court, Bhubaneswar in its final judgment passed on 31.05.2023 in Confiscation Case No.13 of 2015. 7. During the course of arguments, the learned counsel for the appellants submitted that, the appellants are interested for depositing the above determined value/amount of the disproportionate assets, i.e., Page 5 of 11 Rs.8,58,613/-(rupees eight lakhs fifty-eight thousand six hundred thirteen) in order to save the said assets(properties) from confiscation. Because, they had/have been using the properties sought to be confiscated as their bare necessities, but, in case of confiscation of the same, they shall face much inconveniences and difficulties, to which, the learned Senior Standing Counsel Vigilance vehemently opposed relying upon the decision of the Apex Court reported in (2008) 41 OCR (S.C.) - 843 : N. Naveen Kumar and others vrs. State of Andhra Pradesh contending that, unless and until, the appellants deposit the present market price/value of the properties subjected to be confiscated, the said properties can never be allowed to be abstained/saved from confiscation, because, proviso(3) of Section 15 of the Orissa Special Court‟s Act, 2006 lays down that, if the market price of the property confiscated is deposited with the authorized officer, the property shall not be confiscated, as the emphasis has been given upon the word “the market price.” In the aforesaid decision of the Apex Court relied by the learned Senior Standing Counsel for the Vigilance Department, the accused of that case was facing trial in vigilance case vide C.C. No.64 of 1992 having been charged under Section 5(1)(e) read with Section 5(2) of Page 6 of 11 P.C. Act, 1947 (in short the „old Act‟), wherein, he (accused) was convicted and sentenced by the learned Special Judge with a direction to sell the assets in public auction for confiscation of the sale proceeds to the State. Thereafter, the convicted accused of that C.C. No.64 of 1992 had challenged that conviction and confiscation passed against him by preferring a criminal appeal vide Criminal Appeal No.1524 of 1998 before the Hon‟ble High Court of Andhra Pradesh. The Hon‟ble High Court of Andhra Pradesh dismissed that criminal appeal No.1524 of 1988, because, during the pendency of that criminal appeal before the Hon‟ble High Court, the accused/appellant died, for which, the sentence of imprisonment, which was passed against him was abated. After the death of the accused(appellant) of that Criminal Appeal No.1524 of 1998 when his legal heirs filed an application under Section 482 of the Cr.P.C. praying for allowing them to deposit the determined amount of the assets in C.C. No.64 of 1992 in lieu of confiscation, then the Hon‟ble Courts and Apex Court rejected their prayer giving them liberty to participate in the auction for sale of the assets giving observations therein that, it is the present value of the properties which is Page 7 of 11 of relevance and not the value of the assets at the relevant point of time of seizure. 8. When, the provisions of law envisaged in the special statute, i.e., in Chapter-III of the Orissa Special Court‟s Act, 2006 are clarifying that, the final order passed by the Authorized Officer Special Court in a confiscation case/proceeding regarding the confiscation of the disproportionate assets is contingent upon the final outcome(result) of the vigilance case, (from which, the confiscation proceeding had arisen) and when as per law, in case of acquittal of the accused(person affected) from the vigilance case, he/she is entitled under law to get release of the disproportionate assets (in respect of which order for confiscation was passed) in his/her favour and when, a criminal appeal vide Criminal Appeal No.782 of 2022 is pending/subjudice before the Hon‟ble Courts challenging the judgment of conviction passed in the vigilance case vide T.R. No.03/64 of 2015-2012 and when the appellants are interested to deposit the determined amount of the disproportionate assets to save the said assets from confiscation and when the matter regarding confiscation is subject to the result of Criminal Appeal No.782 of 2022(which has been preferred by the appellant no.1 before the Hon‟ble Courts), then at this juncture, the appellants cannot be compelled to deposit more than the Page 8 of 11 determined amount to save the disproportionate assets from confiscation temporarily till the final disposal of the Criminal Appeal No.782 of 2022, because, the provisions of new special statute of the State, i.e., Orissa Special Court‟s Act, 2006 do not provide for depositing any amount more than the amount determined in the vigilance trial and confiscation case. For which, the decision relied by the learned Senior Standing Counsel Vigilance for a direction to the appellants for depositing the value of the disproportionate assets as per its present valuation cannot be applicable on facts of the appeal at hand as discussed above. Because the said decision was passed by taking into account to the old P.C. Act, 1947, which was a general statute, but whereas this appeal relates to the Special (statute) Act, i.e., Orissa Special Courts Act, 2006. The law concerning the prevailing of the general or special statute has already been clarified in the ratio of the following decisions:- (i) 2009(II) OLR (S.C.)-658 : General Manager, Telecom vrs. M. Krishnan and another—Practice and Procedure—Special law overrides the general law. (ii) AIR 1976 (P& )-310 : Chanan Singh vrs. Majo and Ors.—A special procedure or a special statute will prevail over general one. (iii)
Legal Reasoning
2006(I) C.J.D.-1 : Executive Officer, Sri Baldev Jew Bije, Keonjhar vrs. Smt. Anbnapurna Jena and another(in W.P.(C) No.2662 of 2003) Smt. Premalata Jena(In W.P.(C) No.2817 of Page 9 of 11 2003)—Consumer Protection Act, 1986—Special law has to supersede the general law. (iv) 2010(II) Civil Law Times (Bombay)-368 : Union of India vrs. B.C. Biyani—Interpretation of Statutes—When Special Act provides for specific provision in the Act itself, provisions of other Act are not necessary to be applied.(Para-5) 9. When the appellants are interested to deposit the aforesaid determined value of the disproportionate assets, i.e., Rs.8,58,613/-(rupees eight lakhs fifty eight thousand six hundred thirteen) to save the said assets from confiscation temporarily till the final disposal of criminal appeal no.872 of 2022, then at this juncture, there is justification under law for making some interference with the impugned judgment passed on dated 31.05.2023 in confiscation case No.13 of 2015 by the learned Authorized officer, Special Court, Bhubaneswar through this appeal preferred by the appellants for modification of the same. 10. Therefore, the appeal filed by the appellants is allowed in part. The judgment dated 31.05.2023 passed in Confiscation Case No.13 of 2015 by the learned Authorized officer, Special Court, Bhubaneswar is set aside in part with a clarification that, in case of depositing Rs.8,58,613/-(rupees eight lakhs fifty eight thousand six hundred thirteen) by the appellant or appellants within two months hence Page 10 of 11 before the court of the learned Authorized officer, Special Court, Bhubaneswar, the said amount shall be kept in an interest bearing account in any Nationalized Bank subject to the disbursement or confiscation of the assets according to the result of criminal appeal no.782 of 2022. 11. In case of failure of the appellant or appellants to deposit the said amount within two months hence, necessary steps as per law can be taken for confiscation of the said assets. 12. According to the observations and clarifications made above, this Criminal Appeal is disposed of finally with the aforesaid modification/alterations of the impugned judgment dated 31.05.2023 passed in confiscation Case No.13 of 2015 by the learned Authorized Officer, Special Court, Bhubaneswar. Judge Orissa High Court, Cuttack The 7th of May, 2024/ Jagabandhu, P.A. ( A.C. Behera ) Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 08-May-2024 10:35:55 Page 11 of 11