Ramendra v. State Of M.P.

Per S.K Seth J.

This order shall also govern the disposal of M. Cr. C. No. 3981 of 2012 (Ashok Dhuldhue v. State of M.P) as both petitions under Section 482 Cr.P.C raise common question of law. Applicants in both petitions are two of the persons against whom applications under Section 13(1) of the Madhya Pradesh Vivesh Nyayalaya Adhiniyam, 2011 (Act No. 8 of 2012) [hereinafter referred to as ‘the Act’ for short] have been moved by the Public Prosecutor for confiscation of the property under Section 15(3) of the Act. For our purpose in these cases, it is suffice to say that on 18.12.2011 applicant's residential house was raided which unearthed huge benami properties procured by means of income earned through ‘criminal misconduct’ as per Section 13(1)(e) of the Prevention of Corruption Act, 1988. A case has been registered in the Police Station, State Economic Offense Bureau, Bhopal. It is not disputed before us that the State Government has issued the Declaration under Section 5 of Act so as to attract the provisions of the Act for trial of offence by the Special Court established under the Act.

2. An application under Section 13 of the Act was made by the Public Prosecutor for the confiscation of properties. It is available on record as Annexure P-1. Notice of the said application has been served upon the applicant, who is an affected person. Applicant sought an explanation and clarification regarding procedure to be adopted by the Special Court. Learned Special Judge, by the order impugned rejected the application. Hence this petition.

3. Heard the counsel for applicant at length. He submitted that Special Judge was bound to explain the procedure and the remedies available under the Act. He further submitted that it is necessary to inform the applicant at the out set so that he can plan “a road map to fight out frivolous and unfounded allegations” made against him. It was also argued that raid for the check-period was conducted on 18.12.2011 whereas the Act came into force subsequently, therefore, provisions of the Act could not be made applicable retrospectively to take away vested right. In support of contention he referred to decisions which have been quoted by the Special Judge in the order impugned.

4. The Madhya Pradesh Vivshesh Nyayalaya Adhiniyam, 2011 was passed by the State Legislature. It was brought into force, after it received the assent of the President. The Statement of Object and Reasons accompanying the Bill (published in M.P Rajpatra Asadharan dated 26.2.2011) shows the back ground, antecedent state of affairs, surrounding circumstances leading up to the legislation and the evil which the Statute seeks to remedy. The preamble of the Act also clearly expresses the scope, object and purpose of the Act. In fact, it is held to be “a key to open the minds of the makers of the Act and the mischief which they intend to redress.” A bird's eye view of the Act shows that Section 2(e) defines “offence” to mean “an offence of criminal misconduct which attracts application of Section 13(1)(e) of the Prevention of Corruption Act either independently or in combination with any other provision of the Act or any of the provision of Indian Penal Code. Section 3 provides for the establishment of Special Courts for trial of “offence” committed by a person holding a public office or a public servant. Section 5 empowers the State Government to issue a declaration of the cases relating to “offence” committed by holder of public office or by a public servant within the meaning of Section 2(c) of the Prevention of Corruption Act, 1988. Once a declaration under section 5 is made and issued, then the jurisdiction to try the accused person/persons for the “offence under the Act” vests only in the Special Court. Chapter III of the Act deals with “confiscation of property”. Section 13 provides for confiscation of the money and other property. Under this Section, State Government can authorize the Public Prosecutor to move an application for confiscation of the money and other property which prima facie have been procured by means of the offense by a holder of a public office or a public servant. Section 14 requires a notice of the application upon the affected person to show cause against confiscation of money or property, which the State Government has reasons to believe, have been procured by means of the offence. Section 15 empowers the Authorized Officer to pass an order of confiscation of money or property. Section 15(5) enjoins upon the Authorized Officer to dispose of proceedings for confiscation within six months. This clearly shows that no elaborate enquiry is required for deciding the application and it has to be disposed of in summary manner as expeditiously as possible within a period of six months. An appeal is provided against the order of the Authorized Officer to the High Court. Section 19 provides that where an order of confiscation if modified or annulled by the High Court in appeal or where the person affected is acquitted by the Special Court, the money or the property or both shall be returned. This survey of the relevant provisions does not show that the Act gives retrospectivity to “Offense” as contended by the Counsel during the course of arguments. “Offence” is already defined in the Prevention of Corruption Act, 1988. This Act only prescribes the forum and procedure to be followed to deal with cases for which a declaration is made under Section 5 of the Act. The Act does not create a new offence in respect of past transaction so as to take away any vested right or creates new burden. The Act does affect the prescribed punishment for the offence, but provides for confiscation of money and/or properties procured by means of criminal misconduct. It is well settled that Legislature is competent to provide for confiscation in addition to punishment. See Indo China Steam Navigation Co. Ltd. v. Jasjit Singh-AIR 1964 SC 1140; C. Devamani v. State-1983 Cri. L.J 1320; Shambhu Dayal Agarwal v. State of West Bengal-(1990) 3 SCC 549; Kailash Chand v. State of M.P AIR 1995 MP 1; State of W.B v. Sujit Kumar Rana(2004) 4 SCC 129. Recently, whole conspectus of the case law discussed by a Division Bench while deciding Criminal Reference No. 1 of 2010 on 21-4-2010.

5. In view of the foregoing discussion, we do not find any merit and substance in both petitions. Consequently, they are hereby dismissed. Let a copy of this order be retained in the record of connected M.Cr Case No. 3981 of 2012 (Ashok Dhuldhue v. State of M.P).