Girish Kumar & Ors vs The State Of Bihar Through Vig on 15 November, 2011

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Patna High Court
Girish Kumar & Ors vs The State Of Bihar Through Vig on 15 November, 2011
Author: Dharnidhar Jha
                               Criminal Appeal (SJ) No. 918 of 2011
                                             -------

Against the order dated 23rd June, 2011 passed by Shri Ramesh Chandra Mishra,
Authorized Officer, Special Court II, Patna in Special Case No. 7 of 2010.

——–

1. Girish Kumar, son of Late Sidheshwar Sharma,

2. Saphalta Devi, wife of Girish Kumar,

3. Roshan Kumar, son of Girish Kumar,

4. Rajnish Kumar, son of Girish Kumar, all residents of Park Road,
Kadamkuan, Patna,

5. Sachchidanand Singh, son of late Sidheshwar Sharma, resident of
village – Tineri, P.S. – Masaurhi, District – Patna
…………… Appellants

Versus

The State of Bihar through Vigilance ……………….. Respondent.

——–

        For the Appellants         : Sarvshri Rana Pratap Singh,
                                              Chittaranjan Sinha, Sr. Advocates
                                              Pramod Kumar, Advocate

        For the Vigilance          : Sarvshri Ramakant Sharma, Sr. Advocate
                                              Arvind Kumar, Advocate.
                                              --------

                                          PRESENT

                      THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA
                                        -------


Dharnidhar Jha, J.             The appellants were respondents before the learned

Authorized Officer, Special Court II, Vigilance, Patna in Special case no. 7 of

2010 which arose out of Vigilance P.S. Case no. 39 of 2006. The appellants

challenge the order passed by the learned Authorized Officer designated under

Bihar Special Courts Act, 2009 (hereinafter referred to as the ―Act‖) dated 23rd

June, 2011 on a petition filed under section 13 of the Act directing the

confiscation of the properties described in Schedules A and B of the petition and

further directing the appellants to surrender and deliver the possession over the

properties contained in Schedules A and B of the petition in favour of the District

Magistrate, Patna, who was authorized by the learned Authorized Officer to take

possession of the same within thirty days of the impugned order. An alternative
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direction was also issued to the District Magistrate, Patna that, in case of refusal

on behalf of the appellants to surrender the properties as directed by the

Authorized Officer, possession over the properties shall be resumed by the

District Magistrate even if it required use of some force.

2. The facts leading to the passing of the impugned order may be

noticed. Undisputedly, the appellant Girish Kumar was appointed as a clerk on

compassionate ground on account of the demise of his father Siddheshwar

Sharma in Patna Treasury, Collectorate, Patna. The appellant was appointed in

1992 and from 1992 to 2004 he had, reportedly, amassed huge properties, in

various forms, to the tune of Rs.51,10,826. It appears that certain Brajeshwar

Prasad Singh had filed a complaint before the Lokayukta, Bihar and that was

transmitted for enquiry by the Vigilance Department of the Government of Bihar

and, accordingly, after enquiry, Vigilance P.S. Case no. 39 of 2006 was instituted

and during investigation of the case, it was found out that the appellant Girish

Kumar had amassed the properties by commission of the offence defined under

section 2(d) of the Act and, as such, the application was filed under section 13 of

the Act before the Authorized Officer by the State of Bihar.

3. It was stated that the total income of the appellant Girish Kumar

from his salary during 1992 to 2004 was Rs.6,95,340 only, one third of which

came to Rs.2,31,780. In addition to the above, the delinquent public servant, i.e.,

the appellant Girish Kumar had also received Rs.72,738 as half of the retiral

benefits of his late father, the total of which was Rs.1,45,476 only. It was stated

that the total assets which was found in possession of the appellant Girish Kumar

either in his own name or in the names of other appellants stood at Rs.51,10,826

and after deducting the sum total of Rs.2,31,780 and Rs.72,738 from the total

assets of Rs.51,10,826, the disproportionate asset found in possession of the

appellant in any form was of Rs.48,06,308. The split up of the assets in the forms

of bank deposits in different accounts standing in the name of either Girish Kumar

or in the names of other appellants was given in Schedule A besides stating that
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the appellants had a motorcycle bearing registration number BR-1W-1160 of the

value of Rupees thirty eight thousand and he had also purchased a pistol and

cartridges as per licence which was of the value of Rupees forty thousand. In

addition to the above, the appellant Girish Kumar had a Maruti Zen car costing

Rs.4,48,190 in addition to possessing a tractor and a trailer in the name of his

brother Sachchidanand Singh, which was of the value of Rupees three lacs. The

immovable properties were described in Schedule B and as per those details the

appellant was found in possession of a plot of land measuring 1905 sq. ft. in

Shivpuri mohalla, Patna and another at Park Road, Kadamkuan, valued at

Rs.3,67,362 and Rs.5,28,308 respectively, both properties standing in the name of

Smt. Safalta Devi, one of the appellants who was the wife of appellant Girish

Kumar. A third house was standing in the same Park Road, Kadamkuan, which

was of the value of Rs.5,28,392 and thus, the value of the immovable properties

along with buildings came to Rs.14,24,056 only. It was alleged that the properties

were acquired by commission of the offence under section 2(d) of the act and they

were liable to be confiscated in view of the provisions of the Act.

4. On presentation of the petition under section 13 of the Act, it

appears, notices were issued to the appellants and they appeared in response

thereto and filed their respective show cause cum statements in defence before the

learned Authorized Officer. The main statement of defence appears filed by the

appellant Girish Kumar and while the other appellants were also filing their

written statements of defence, they were mainly relying upon the major part of the

statement made by appellant Girish Kumar. It was stated by the appellant Girish

Kumar that Maruti Zen car was not valued at Rs.4,48,190 rather it had costed him

Rs.3,33,339 only and the same was purchased on availing a car loan from State

Bank of India, BSEB branch, which was of Rs.2,58,399 only. So far as the

acquisition of three plots including building as per Schedule B of the application

under section 13 of the Act was concerned, appellant Girish Kumar stated that the

appellants were members of Hindu undivided family and they had ancestral
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irrigated land which generated agricultural income which was not taxable and out

of agricultural income of the land and the retiral benefit of his father as also loans

taken from his friends and relatives those properties were acquired and some part

of the payment was made from the account maintained by the appellant Girish

Kumar in State Bank of India, Gandhi Maidan Branch. Likewise, so far as the

total deposit of Rs.27,41,555 in his bank account number 01190015057 was

concerned, it was stated that it had already been closed on 15.7.2004 and the total

transaction was more that the above amount and, thus, were not illegal. Likewise,

the appellant was also explaining his fixed deposits as per Schedule A to the

petition which was in the sum of Rs.90,000 by stating that those were the

investments made out of the agricultural income of the family of the appellants.

As regards the acquisition of motorcycle and the pistol and cartridges, it was

stated that the motorcycle was not the property of Girish Kumar or any of the

appellants rather the same belonged to one Akhilesh Kumar, who was sometimes

the tenant in the house of the appellant and the pistol and cartridges were

purchased out of the agricultural income. On the allegation of acquiring the

tractor of the value of rupees three lacs, the reply of the appellants was that the

tractor stood registered in the name of the appellant Sachchidanand Singh, brother

of the appellant Girish Kumar and the appellant Girish Kumar had contributed

only Rs. 95,000 and remaining amount was pooled from the agricultural income

of the joint family. It was stated that Sachchidanand Singh was employed as

Yakshma Sahayak at Hariharpur in the district of Sahebganj and he served from

20.2.1987 to 11.5.1992 on which date he was terminated and he had his own

source of income and some part of the money had also been contributed by

appellant Sachchidanand Singh in purchase of the tractor.

5. Appellant Girish Kumar stated that the State Government had

illegally bifurcated the retiral benefit which was received on demise of his father

in two halves; one part going to appellant Girish Kumar and the other to his

mother. In fact, the appellant pleaded, he had received the whole of the amount
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which was paid as retiral benefits which were due to his demised father. It was

also stated that the agricultural income had not been taken into account and those

were the reasons that the State of Bihar had filed a completely untenable petition.

6. Appellant Saphalta Devi, who is the wife of appellant Girish

Kumar, filed her separate statement of defence and, stated that initially the plot

situated at Sheopuri, Patna pertaining to plot no. 163, Khata no. 734 was

purchased out of the savings of appellant Girish Kumar together with agricultural

income of the family and the family pension and agricultural income of the family

of appellant Girish Kumar in addition to taking loans from friends and relatives

and the loans which were borrowed from friends and relatives were repaid by

appellant Girish Kumar through cheques to be drawn at the account of appellant

Girish Kumar at Gandhi Maidan branch of SBI. It was stated by the appellant

Saphalta Devi that she did not maintain any separate bank account and her

income, i.e., gifts received from her parents, was deposited in the SBI account of

her husband. Likewise, the mother of Girish Kumar was also not having any

account except that in which she used to receive her pensionary benefits and, as

such, the whole agricultural income of the family was being deposited in the

account of appellant Girish Kumar.

7. So far as acquisition of the two immovable properties in

Kadamkuan is concerned, it was stated that before acquiring properties in Park

Road, Kadamkuan, appellant Saphalta Devi sold her plot of land situated in

Sheopuri, Patna which was earlier agreed to be sold to one Shri Krishna Singh

and others after having received a premium of Rupees three lacs. The subsequent

sale was for Rupees five lacs out of which the premium of Rupees three lacs

received from earlier three prospective purchasers was returned and the two plots

in Kadamkuan was purchased. The remaining amount in addition to Rupees three

lacs was pooled from the income of joint family generated through the irrigated

agricultural land and as such there was no illegality in acquisition of the

properties. The same stand was taken by Smt. Saphalta Devi also as regards the
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acquisition of trailer and tractor for Rupees three lacs as was done by her

husband.

8. The two sons of Girish Kumar and Safalta Devi who are also

appellants had also been noticed under section 14 of the Act to appear and file

their show cause against confiscation of the properties. Both of them appeared

and filed their show cause taking the same stand as was taken by their parents and

uncle Sachchidanand Singh.

9. The learned Authorized Officer, thereafter, heard the parties and

went on to consider the allegations along with the evidence which was produced

before him and directed the confiscation of the properties detailed in Schedules A

and B of the petition.

10. It was contended that the motorcycle, the value of which was

Rs.30,000, did not stand in the name of any of the appellants rather it stood

registered in the name of one Akhilesh Kumar and, as such, the clubbing of that

particular property for being confiscated was not proper. Submission was also that

the amount of Rupees four lacs as price of Maruti Zen car also appears

exaggerated and thereby inflating the total value of the disproportionate assets

allegedly acquired by the appellants. Besides, the appellants had taken out a loan

from the State Bank of India for purchasing Maruti Zen car and that acquisition

may not be illegal. Likewise, it was contended that the initial acquisition of the

immovable properties at Sheopuri was made out of the funds generated from

agricultural income and that plot was admittedly sold by the appellant Saphalta

Devi to one Moina Begam for which an agreement to sale was scribed on

22.11.2003. The remaining amount for purchasing the two plots and the house at

Kadamkuan was pooled from the agricultural income of the joint family

properties besides personal income of the appellants and as such there was no

illegality in it. It was, lastly, contended by the learned counsel for the appellants

that it was malafide on behalf of the State of Bihar and its agencies to file a

petition under section 13 of the Act and not to proceed with the trial of the case in
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which charge sheet, admittedly, was filed long back in the year 2006 as may

appear from the details of the case and investigation given by the State of Bihar in

its petition under section 13 of the Act. It was, as such, contended that the

impugned order was bad in law as also on facts and was fit to be set aside.

11. The learned Special Public Prosecutor submitted that except the

bald statements that the family was joint and it possessed substantial agricultural

land which yielded sufficient produce to generate those lacs of money for

purchasing the two plots at Kadamkuan or for creating a deposit of over rupees

twenty seven lacs in bank account, there was no evidence produced in support

thereof. Even appellant Sachchidanand Singh has not said as to what was received

by him as salaries, etc. for the period he was serving a particular organization

under the State of Bihar. It was contended that bald statements are never to be the

basis for considering the defence statements as it has always to be supported by

some evidence raising a prima facie presumption of existence of a particular fact.

It was contended, as such, that the order impugned is fit to be upheld.

12. This Court does not want to go into the legal aspects of the matter

as it has already explained the position on all aspects of confiscation proceedings

which could be taken up by the State Government through a petition filed under

section 13 of the Act in Shiv Shanker Verma Vrs. State of Bihar reported in

2011(3) PLJR 813. The procedures are elaborately laid down in Chapter 3 of the

Act and through relevant rule as may appear from Rules 11 and 14 of Rules. It

appears from the perusal of the impugned order and the lower court records that

there is no procedural illegality apparent on the face of the record as after the

filing of the application under section 13 of the Act the learned Authorized

Officer issued notices to all concerned persons who appeared holding the

properties said to be illegally acquired by commission of the offence under

section 2(d) of the Act by appellant Girish Kumar.

13. However, it was contended that it was mala fide on the part of the

State of Bihar to have filed a petition under Section 13 of the Act in respect of an
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offence which was registered and investigated into quite ahead of the passing of

the Act without going through the trial procedure and keeping the matter pending

before the trial court as, admittedly, the investigating agency had filed charge

sheet as back as on 12.9.2006. In other words, what was contended was that no

confiscation proceeding could be maintained against a public servant, if the

offence appeared committed prior to coming into force of the Act. This issue

appears seriously raised by Shri Rana Pratap Singh, the learned senior counsel

appearing on behalf of the appellants and I desire to examine it. What appears

suggested by the learned senior counsel was that the application of the Act could

not be retrospective.

14. On examining the provisions of Chapter 3, especially that of

section 13 of the Act, one may come to a conclusion that the confiscation

proceedings could never be confined to the acquisition of any properties by any

public servant only after the Act had come into force. If one considers the

provisions of section 13 of the Act, one may find that it is too clear to confuse the

issue. The provision reads as under:-

―13. Confiscation of property.—(1) Where the State Government,
on the basis of prima-facie evidence, have reasons to believe that any
person, who has held or is holding public office and is or has been a public
servant has committed the offence, the State Government may, whether or
not the Special Court has taken cognizance of the offence, authorize the
Public Prosecutor for making an application to the authorized officer for
confiscation under this Act of the money and other property, which the
State Government believe the said person to have procured by means of
the offence.

(2) An application under sub-section (1)–

(a) shall be accompanied by one or more affidavits,
stating the grounds on which the belief, that the
said person has committed the offence, is founded
and the amount of money and estimated value of
other property believed to have been procured by
means of the offence; and
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(b) shall also contain any information available as to
the location for the time being of any such money
and other property, and shall, if necessary, give
other particulars considered relevant to the context.‖

15. The words ―who has held or is holding public office and is or has

been a public servant‖ could leave no manner to doubt the scope, ambit and extent

as regards the application of section 13 of the Act and could not be confined to

any prospective date to the date on which the Special Act had come into force. If

a person against whom the application had been filed and against whom the State

Government had reasons to believe on the basis of the prima facie evidence that

he had committed the offence under section 2(d) of the Act and had thereby

acquired properties either in his own name or in the names of any other persons,

the date on which the Act had come into force, becomes irrelevant and

meaningless. The only thing to be considered by the court or the Authorized

Officer is as to whether the person against whom the application has been filed

alleging commission of the offence and thereby acquisition of properties by him

was indeed a public servant on the date of commission of the offence. Thus, if the

date of offence was prior to the date of promulgation of the Act or the date of

enforcing the provision of the Act, then it has always to be read as an enactment

which was enforcing its provisions retrospectively. These were never to be

pointed out because I have already extracted the relevant part of the provision of

section 13 of the Act, which itself is so clear as to leave any manner of doubt that

the provisions had to be applied to the date of acquisition of the properties and

after considering the status of the person on that particular date as that of the

public servant. This, I believe, takes care of the argument of Sri Singh, the learned

senior counsel in its entirety.

16. However, the grievance of the appellant that the State Government

and its agencies were acting malafide, to me, appears of no importance so as to be

taken note of when I am judging an order passed by the Authorized Officer under

section 15 of the Act. Whether the government is sleeping over the trial due to its
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slackness or disinterestedness, so to say, in production of evidence could never be

the consideration while judging an order under section 15 of the Act on an

application filed under section 13 of the Act. A court, specially the appellate court

has to confine itself to the allegations which have been placed on record through

the application along with the supporting prima facie evidence so as to inferring

reasons to believe that a public servant, past or present, had acquired properties

disproportionate to the known sources of his income after commission of the

offence under section 2(d) of the Act which is an offence defined and made

punishable under section 13(2) of the Prevention of Corruption Act, 1988. The

other aspect which the appellate court has to look into are as to whether the

provisions of sections 14 and 15 of the Act have duly been complied with while

carrying out the proceeding of confiscation on an application under section 13 of

the Act. I have already noted that the learned lower court does not appear

committing any error on the procedural aspects of the matter as regards carrying

out the proceedings after having received the petition under section 13 of the Act.

17. It requires hardly to be pointed out that the State Government

could frame its petition if it has the prima facie evidence so as to giving it

sufficient reasons to believe about commission of the offence and the acquisition

of the properties by a public servant, past or present, which had been found

disproportionate to the known sources of his income. On an application being

received, notices for confiscation have to be served calling upon him to reply

within the stipulated period of thirty days or which may be extended to a

maximum of 45 days to the allegations and the contents of the evidence. The

public servant when replying to those allegations, is supposed also to file his

written statement of defence and while so doing as may appear from Rule 11 of

the relevant Rules which is known as Bihar Special Court Rules, 2010

(hereinafter referred to as the Rules), he may also enclose some documents or

evidence in support of his statement of defence. It could be plainly clear from

Rule 11(b) of the Rules that the delinquent public servant was to be given
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opportunity of meeting out the allegations fully and completely so that the

principles of natural justice were not violated. The second intent which appears to

me was that the public servant had also the opportunity of rebutting prima facie

evidence by enclosing his documentary evidence or any other evidence which

could be lying in his possession or in possession of all other persons who are

alleged possessing the properties on behalf of such delinquent public servant. The

third purpose is contained in the rule itself. When the same rule 11 by virtue of

sub-rule(e) grants an opportunity to the public prosecutor to reply to the statement

in defence filed by the delinquent public servant. The purpose was, firstly, to

abdicate the full-dressed hearing on the petition as we may imagine in a trial-like-

situation and to allow the placing of all the relevant documents and evidence

along with explaining statements from both the sides so that the Authorized

Officer did not have any difficulty in reading probabilities arising out of the

assertions and counter assertions and thereby in recording his findings clearly.

This appears more the intent of the legislature when one considers that the very

Act has created two fora; one for the trial of the offence which had to be done as

per the provisions of Chapter 2 of the Act. The other forum is for carrying out the

adjudication of proceedings arising out of the petition filed under section 13 of the

Act which has to be summary and in which rules of evidence have never to be

applied. Nonetheless, it could not be said that the adjudication of the petition

under section 13 of the Act has to be done as per the whim of the Presiding

Officer. It can never be so else, it could be violative completely of the principles

of natural justice. It has to be as per the provisions of section 15 of the Act and

Rule 11 of the Rules on the balance of probabilities.

18. But then, the question is in case the delinquent public servant or

the persons who have been issued notice under section 14 of the Act do not

choose to place evidence by enclosing the same with their statements of defence,

then where from the court or the Authorized Officer could be reading those

evidence. The present appears a case of that class where the appellants were
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making statements, placing explanation in their own ways on acquisition of

different properties, which were found in their possession as per description in

Schedules A and B of the petition. But, they did not enclose any document with

their written statements of defence which were filed before the court below. Even

their statements appear quite contrary to each other. Appellant Girish Kumar was

stating that the retiral benefits accruing on account of the demise of his father

were improperly partitioned in two halves, one to himself and other to his mother.

In fact, it accrued to him alone in its entirety. But his wife appellant Saphalta

Devi, while explaining immovable properties of Sheopuri and Kadamkuan, was

stating that the Stridhan properties of her mother-in-law were also coming handy

in acquisition of the properties. In addition to that, the appellants were speaking of

their irrigated agricultural land. They did not state as to what was the area of the

land which was in their possession and they did never furnish as to what was the

annual income by way of net savings due to the produce of those lands. All

acquisitions, may be of the pistol and cartridge, the tractor and trailer, the plots of

land and houses in Kadamkuan or even the Maruti Zen car, appears being

financed either fully or in part by the agricultural income of the joint family

without even stating in a consolidated manner as to what was the total income of

the family from agricultural lands from the year 1992 to 2004. The court would

have been happy had it received any reasonable explanation by way of furnishing

accounts of receipts from agricultural land, year-wise or otherwise, by the

appellants. Thus, what appears is that the whole statement of defence of the

appellants was based on bare statements which were too general and specific on

any part and without any support from any acceptable evidence or material. There

was no prima facie evidence produced by the appellants in support of their

statements of defence though the appellants appear not controverting that they had

the properties in their possession. This may appear from different paragraphs of

the statements made either by the appellant Girish Kumar or appellant Saphalta

Devi.

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19. In my considered view, the learned Authorized Officer was

perfectly justified in holding that the properties were acquired by commission of

the offence under section 2(d) of the Act.

20. So far as acquisition of motorcycle is concerned, it was stated that

the vehicle was owned by one Akhilesh Kumar. It appears from the impugned

order that Akhilesh Kumar was also issued a notice under section 14 of the Act

but, he did not choose to appear. Again, there was no documentary evidence

produced before me showing the source of finance to purchase the motorcycle

least to say that it really belonged to Akhilesh Kumar. It may be true that Maruti

Zen car had been purchased by taking out a loan but that may not shut the matter

out of the court unless the delinquent public servant, i.e., Girish Kumar was

successfully pointing out to the learned Authorized Officer and this Court as to

how the loan was repaid. There was no statement as to from which account in

which he had kept his validly earned money, the loan amount was repaid. May be,

that acquisitions had been financed properly by taking out loans but in that case,

in my considered view, the repayment of loan has also to be equally from the

valid source of income and in all such cases, the delinquent public servant owes a

burden to justice to explain as to how he had discharged that burden. The

appellants have not done it in the present case.

21. The appeal appears de-meritorious and the same is, accordingly,

dismissed.

(Dharnidhar Jha, J.)

Patna High Court,
The 15th November, 2011,
NAFR/Anil/

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