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
2
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
3
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
4
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
5
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
6
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
7
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
8
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
9
(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
10
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
11
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
12
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.
13
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/
