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Gagan Bihari Das And Others v. The State .
Structured Summary of the Opinion
Factual and Procedural Background
The application arises from an order dated 21-12-1994 passed by the learned Special Judge (Vigilance), Sambalpur, which rejected the petitioners' prayer for release of properties attached in connection with a vigilance prosecution. The petitioners are the legal heirs of the late Somanath Das, who was an accused in T.R. Case No. 10 (the opinion text alternately references "1996" and "1986" for the case number/year in different paragraphs of the record). While Somanath Das was a government servant posted at Sohela, his quarter was searched on an allegation that he had acquired properties disproportionate to his known sources of income. The Vigilance Department seized movable properties including cash, ornaments and bank deposits.
A case was registered against Somanath Das under the Prevention of Corruption Act and proceeded in the Court of the learned Special Judge (Vigilance), Sambalpur. Somanath Das died on 1-12-1991; the death was placed before the Court and by order dated 29-2-1992 the case was recorded as abated against the accused. After his death, the legal heirs applied for release of the attached properties; the Special Judge rejected that application on 21-12-1994, concluding that there was no provision for release of seized/attached properties to legal heirs under the Prevention of Corruption Act. The present petition under Section 482, Cr.P.C. challenges that order.
Legal Issues Presented
- Whether, after the death of the accused and abatement of proceedings, the Court may treat the trial as "concluded" for the purpose of disposing of attached/seized property (i.e., applicability of Section 452, Cr.P.C.).
- If the trial is not concluded due to the accused's death, whether the procedure and safeguards under Section 457(2), Cr.P.C. (old Section 523/512 jurisprudence) apply for determination and disposal of property seized by the police.
- What standard/process the Court should follow to determine entitlement of the legal heirs to the release of attached properties (i.e., scope of enquiry under Section 457, Cr.P.C.).
Arguments of the Parties
Petitioners' Arguments (as represented by Sri Panda, learned counsel)
- Because the accusation of disproportionate assets was not finally determined by the learned Special Judge due to the death of the accused, there is no scope for confiscation of the properties.
- The only remedy available in such circumstances is release of the seized and attached properties in favour of the legal heirs.
- There was no directly applicable decision under the Prevention of Corruption Act; counsel referred to decisions in cases under the Indian Penal Code by analogy.
Respondent (Vigilance Department) Arguments (as represented by Sri D.K. Mohapatra, learned counsel)
- The properties were seized and attached on the allegation that they were acquired by illegal means and were disproportionate to the known sources of income of the accused.
- Even if the accused died during the pendency of the trial, the properties can only be released in favour of the legal heirs after an enquiry as envisaged under Section 457(2), Cr.P.C.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mirza Iqbal Hussain v. State of U.P., (1982) 3 SCC 516 : AIR 1983 SC 60 : (1983 Cri LJ 154) | Interpretation of Section 4(2), Cr.P.C. — when an offence is under a law other than the IPC and that law is silent on a matter, the Cr.P.C. applies in full force subject to any specific contrary provision. Where the Prevention of Corruption Act is silent on confiscation, Cr.P.C. provisions (including Section 452) apply. | The court relied on this authority to conclude that because the Prevention of Corruption Act is silent on confiscation/disposal, recourse must be had to the Code of Criminal Procedure and therefore the Cr.P.C. powers (including S.452) exist for disposal unless the trial status prevents their exercise. |
| Tara Chand v. The State, AIR 1951 Madhya Bharat 154 : (1951 (52) Cri LJ 1476) | Where inquiry/trial has not concluded (i.e., no full hearing and final determination), the Magistrate cannot make orders under the provision then numbered S.517 (old provision regarding disposal) to return property; property must be returned to police for disposal according to law. | The court applied this precedent to hold that abatement of proceedings on account of the accused's death does not amount to a "concluded" trial for the purpose of invoking S.452, Cr.P.C.; hence that provision was not applicable and Section 457 procedures were applicable instead. |
| Ganeshi Lal Ranchhoddas Mahajan v. Satya Narain Tiwari, AIR 1958 Madh Pra 39 : 1958 Cri LJ 187 | Old Section 523 (now Section 457) applies to property seized by the police on suspicion of connection with a crime, including property seized during investigation; the court has jurisdiction to pass disposal orders under that provision. | The court used this authority to support the conclusion that property brought to court by the police as seized during investigation falls within the scope of Section 457 and is subject to the enquiry and disposal mechanism under that section. |
| Prabhat Kumar Das v. Bijoy Prasad Das, (1980) 50 Cut LT 415 | Clarifies the scope of Section 457, Cr.P.C.: the Magistrate must deliver property only to the person entitled to possession; he must be satisfied from records/materials or conduct an enquiry; the enquiry concerns entitlement to possession (lawful possession), not title or ownership. | The court relied on this statement of law to prescribe the standard and procedure for the enquiry to be conducted by the Special Judge under Section 457: the enquiry should determine entitlement to lawful possession, not adjudicate title. |
| Mahemmed Zariff & Another v. Sk. Zinaullah…Opp. Party., (1987) 2 Orissa LR 283 : (1988 Cri LJ 55 | Reiterates and applies the principles concerning the limited scope of enquiry under Section 457: assessment is confined to entitlement to possession and whether possession is lawful, with power to receive material and conduct enquiry if records are insufficient. | The court quoted and relied upon this decision (together with Prabhat Kumar Das) to shape the precise manner in which the Special Judge should conduct the enquiry into the petitioners' entitlement to possession of the attached properties. |
Court's Reasoning and Analysis
The court proceeded in a stepwise legal analysis strictly grounded in the statutory framework and precedent cited in the opinion:
- Statutory context: The court noted that Section 13(1)(e) and sub-section (2) of Section 13 of the Prevention of Corruption Act define criminal misconduct for possession of disproportionate assets and prescribe punishment, but the Act contains no provision for confiscation or disposal of such properties. The Act (via Section 22) incorporates provisions of the Code of Criminal Procedure (Cr.P.C.) where the Act is silent and Section 5(6) assigns certain powers to a Special Judge.
- Applicability of Cr.P.C.: Relying on Mirza Iqbal Hussain, the court held that where the Prevention of Corruption Act is silent on disposal/confiscation, the Cr.P.C. applies in its full force (subject to any specific provisions), and therefore Cr.P.C. provisions governing disposal (for example Section 452) are available in principle to a court trying offences under the Act.
- Whether Section 452 applies: The crucial inquiry was whether the trial had "concluded" so as to permit application of Section 452 Cr.P.C. The court referred to Tara Chand to explain that where inquiry or trial has not concluded (i.e., there is no full hearing or final adjudication), a Magistrate has no jurisdiction under the corresponding provision to order return of property; instead, the police may be directed to take the property back for lawful disposal.
- Characterization of the present case: On the facts, the trial was not concluded because proceedings abated on the accused's death. Therefore Section 452 was not applicable in the present circumstances; instead Section 457 (old S.523/S.512 context) governs the procedure for disposal of property brought to court by the police.
- Scope of enquiry under Section 457: The court relied on the Prabhat Kumar Das and Mahemmed Zariff decisions to set out the standard for that enquiry: the Magistrate (or Special Judge acting under analogous power) must ascertain who is entitled to lawful possession. The enquiry is confined to entitlement to possession (a sine qua non), not an adjudication of title or ownership; if materials on record are insufficient, the court can conduct an enquiry giving opportunity to claimants.
- Practical direction: Applying these principles to the petitioners' application, the court concluded that the proper course was not immediate release but an enquiry under Section 457(2), Cr.P.C. The petitioners were directed to establish their claim before the learned Special Judge by filing an application and necessary documents within two months. If filed, the Special Judge must conduct the enquiry in the manner articulated by the precedents and determine entitlement to release of the attached properties.
Holding and Implications
Core Ruling: The application is disposed of by directing that the petitioners must establish their claim within two months and that the learned Special Judge shall, upon such filing, conduct an enquiry under Section 457(2), Cr.P.C., in accordance with the judicial principles set out in the authorities cited, and decide the petitioners' entitlement to release of the attached properties.
Implications:
- Direct effect on the parties: The petitioners are not granted immediate release of the attached properties. They are given two months to file an application with required documents before the learned Special Judge, who must then hold an enquiry to decide entitlement to possession under Section 457(2), Cr.P.C.
- Procedural consequence for the trial court: The Special Judge must apply the settled test under Section 457 — determine lawful entitlement to possession (not title), giving an opportunity to claimants and making factual enquiries where the record is insufficient.
- On precedent and law: The court applied existing precedent to clarify the correct application of Cr.P.C. provisions where the Prevention of Corruption Act is silent; the decision directs application of Section 457 procedure in cases where trial is abated for want of a final adjudication. The opinion does not purport to create a new legal principle beyond applying and reconciling existing authorities.
Order: "Order accordingly" — the court's final direction is recorded as set out above (petitioners to file claim; Special Judge to enquire and decide).
1. The legal heirs of late Somanath Das who was an accused in T.R Case No. 10 of 1996 pending in the Court of the learned Special Judge (Vigilance), Sambalpur have filed this application under S. 482, Cr. P.C against the order dated 21-12-1994 passed by the learned Special Judge (Vigilance) rejecting the prayer of the petitioners for release of the properties attached.
2. As it appears from the record late Somanath Das was in Government service and while posted at Sohela his quarter was searched on the allegation that he had ac-. quired properties dis-proportionate to his known sources of income. During such search, the Vigilance Department seized movable properties which include cash, ornaments and bank deposits. A case was registered against late Somanath Das for commission of offence under the Prevention of Corruption Act which ultimately gave rise to T.R Case No. 10 of 1986 in the Court of the learned Special Judge (Vigilance), Sambalpur. While the matter was pending before the learned Special Judge, Somanath Das expired on 1-12-1991. The death of the accused was brought to the notice of the Court and by order dated 29-2-1992 the following order was passed by the learned Special Judge.
“29-2-92 — The record is put up today as 27th and 28th were holiday due to Municipal Election. S.P (Vig.) submits a report that the accused died on 1-12-91. The case is abated against the accused.”
After the death of the accused, the present petitioners who are legal heirs have filed an application before the learned Special Judge praying for release of the properties attached in connection with the said case. By order dated 21-12-1994 learned Special Judge referring to the provisions of the Prevention of Corruption Act and Criminal Law (Amendment) Ordinance, 1944 came to a conclusion that in such event there is no provision of law for releasing the properties seized and attached in connection with the case in favour of the legal heirs and accordingly, prayer was rejected. Challenging the said order, the present application under S. 482, Cr. P.C has been filed.
3. Sri Panda, learned counsel appearing for the petitioners submitted that the case having been registered on the allegation of accusation of dis-proportionate properties and such question having not been determined by the learned Special Judge due to the death of the accused, there will be no scope for confiscation of the properties and the only remedy available in such circumstances is to release the properties seized and attached in favour of legal heirs. In support of his contentions, it is submitted that there is no decision directly on the point but he referred to some decisions where offence was under the Indian Penal Code.
“Sri D.K Mohapatra, learned counsel appearing for the Vigilance Department on the other hand, submitted that since the properties were seized and attached on the allegation that the accused had acquired the same by illegal means and such properties were dis-proportionate to his known sources of income, even if the accused has died during pendency of trial, the property can only be released in favour of legal heirs of the deceased-accused after an enquiry as envisaged under S. 457(2), Cr. P.C
4. In course of argument, learned counsel appearing for both the parties have not been able to cite any decision directly covering the case. It is, therefore, necessary to refer to the relevant provisions of the Prevention of Corruption Act, Code of Criminal Procedure as well as Criminal Law (Amendment) Ordinance, 1944. Section 13(1)(e) of the Act prescribes that a public servant is said to commit the offence of criminal misconduct 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 satisfactorily account, of pecuniary resources or property dis-proportionate to his known sources of income. The explanation to the said provision prescribes that for the purposes of the said Section, “known spurces of income” means income received from 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 a public servant, sub-section (2) of Section 13 prescribes that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable for fine. There is no provision in the Prevention of Corruption Act with regard to confiscation of properties which are found to be dis-proportionate. Section 22 of the Act provides for application of provisions contained in the Code of Criminal Procedure, 1973 subject to certain modifications. Subsection (6) of Section 5 also prescribes that a Special Judge while trying an offence punishable under the Act shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law (Amendment) Ordinance, 1944 (Ordinance 38 of 1944). In’ this connection, a decision of the Apex Court in the case of Mirza Iqbal Hussain v. State of U.P reported in (1982) 3 SCC 516 : AIR 1983 SC 60 : (1983 Cri LJ 154) may be referred to. In the aforesaid case, the Apex Court held that it is clear from Section 4(2), Cr. P.C that insofar as the offences under laws other than the Penal Code are concerned, the provisions of the Code of Criminal Procedure apply in their full force subject to any specific or contrary provision made by the law under which the offence is investigated or tried. The Prevention of Corruption Act being totally silent on the question of confiscation, the provisions of the Code of Criminal Procedure apply in their in full force, with the result that the Court trying an offence under the Prevention of Corruption Act would have the power to pass an order of confiscation by reason of the provisions contained in S. 452, Cr. P.C In view of the aforesaid settled position, there cannot be any dispute that with regard to disposal of property, Prevention of Corruption Act being silent, recourse has to be taken to the provisions contained in the Code of Criminal Procedure.
5. Now the question arises for consideration is whether the abetment of a proceeding due to the death of the accused will be considered a conclusion of the trial. Reference may be made to a decision of the Madhya Bharat High Court in the case of Tara Chand v. The State reported in AIR 1951 Madhya Bharat 154 : (1951 (52) Cri LJ 1476). The Court in the aforesaid case observed as follows:
“Where there has been no inquiry or trial or where the inquiry or trial has not concluded, no order regarding the disposal of the property produced in the Court can be made under S. 517. The word “concluded” in S. 517 means, concluded after a full hearing with a final judgment or determination of the case against the accused. When, therefore, on account of the death of the accused the trial or inquiry cannot be concluded and the Magistrate for that reason does not retain the jurisdiction to give a finding or to make a final judgment on the material before him, the power of the police to make a report to the Magistrate under S. 513 for the disposal of the property is not taken away. In such a case the Magistrate has no jurisdiction to pass any order as regards the return of the property to either party. The property must be returned to the police for disposal according to law.”
6. Coming to the facts of the present case, it is clear that trial had not been concluded and, therefore, Section 452, Cr. P.C with regard to disposal of property is not applicable and Section 457(2), Cr. P.C shall be applicable. Another decision of Madhya Pradesh High Court in the case of Ganeshi Lal Ranchhoddas Mahajan v. Satya Narain Tiwari reported in AIR 1958 Madh Pra 39 : (1958 Cri LJ 187) dealing with old Section 523(Section 457 in the new Code) observed as follows:
“Section 523 applies to property seized by the police of their own accord as distinct from property seized under a warrant issued by Court and therefore will include even cases where the property was seized by the police during investigation. Therefore where the property brought into the Court by the police in proceedings under S. 512 was seized by the police because it was suspected to be connected with the commission of a crime, S. 523 would apply to the case and the Court has jurisdiction to pass an order regarding the disposal of the property.”
In view of the aforesaid decisions, the only way to determine the entitlement of the present petitioners is to make an enquiry as envisaged under S. 457(2), Cr. P.C what is to be decided by the Court in such an event has been explained by this Court in the case of Prabhat Kumar Das v. Bijoy Prasad Das reported in (1980) 50 Cut LT 415 by this Court in another decision in the case of Mahemmed Zariff & Another… v. Sk. Zinaullah…Opp. Party. reported in (1987) 2 Orissa LR 283 : (1988 Cri LJ 55). The observations made by the Court in both the decisions are quoted below:
“5. The scope of Sec. 457 of the Code of Criminal Procedure has been the subjectmatter of judicial discussion from time to time. The Law, however, is settled so far as this Court is concerned by a decision of P.K Mohanti, J. (as he then was) in Prabhat Kumar Das v. Bijoy Prasad Das, (1980) 50 Cut LT 415. The Law was stated in these terms:
“Under the provisions of S. 457, Criminal Procedure Code, if the Magistrate orders delivery of the property he has to deliver it to the person entitled to the possession thereof. He has to satisfy himself from the records and materials available before him that the person to whom the delivery is ordered is entitled to possession. If the materials are not sufficient, he can make an enquiry into the matter by giving opportunity to the claimants before passing the order. In doing so, the Magistrate should confine himself only to find out as to who is entitled to possession of the property but not the title or ownership thereof. A person may be in unlawful possession, at the time of seizure and in that circumstance, it cannot be said that he is entitled to possession. It must be a lawful possession. The test, therefore, is not the mere possession of the property at the time of seizure, but as to who is entitled to lawful possession. The expression ‘entitled to possession’ is the sine qua non for the delivery of property under S. 457, Criminal Procedure Code.”
6. As it has been observed, the sine qua non for the delivery of property under S. 457, is the entitlement of the person to possess. Mere possession is not decisive. A person may be in unlawful possession of the property. That is not respected by the Law. It has been clarified that a person may not have title or ownership of the property even then he could still be entitled to possession. This possession is not of a thief or a cheat but of a person who has right to hold it.”
7. On consideration of the facts of the case and Law referred to above, I dispose of this application directing that the petitioners shall establish their claim before the learned Special Judge within two months from today by way of filing an application and required documents.
8. If such an application with required documents are filed within the time prescribed, learned Special Judge shall nake an enquiry in the manner decided by tins Court in the decisions referred to and quoted above and decide the entitlement of the petitioners for release of the properties under attachment.
9. Order accordingly.
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