IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.1034 of 2011 ===================================================== Against the order dated 23.7.2011 passed by Shri Pandey Anil Kumar, Special Court II, Vigilance, Bhgalpur in Confiscation Case no. 6 (cc) of 2010/ 02 of 2010. ---------- Kapil Muni Rai, Son of Late Ram Keshwar Rai, Enforcement Sub Inspector, Resident of Village- Krishi Nagar, A.G. Colony, P.S.- Shashtri Nagar, District- Patna. .... .... Appellant/s Versus 1. The State of Bihar through its Principal Secretary, Vigilance Department, Government of Bihar, Patna. 2. The State Transport Secretary, Bihar, Patna. .... .... Respondents With Criminal Writ No.626 of 2011 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------- Kapil Muni Rai, Son of Late Ram Keshwar Rai, Enforcement Sub Inspector, Resident of Village- Krishi Nagar, A.G. Colony, P.S.- Shashtri Nagar, District- Patna. .... .... Petitioner. Versus 1. The State of Bihar through its Principal Secretary, Vigilance Department, Government of Bihar, Patna. 2. State Transport Commissioner, Bihar, Patna. .... .... Respondents ====================================================== For the Petitioner/Appellant : Sarvshri Rajiv Kumar Verma, Senior Advocate Rajneesh & Meeta Sinha, Advocates. For the Opp. Parties : Shri Ramakant Sharma, Sr. Advocate ----- PRESENT HONOURABLE SHRI JUSTICE DHARNIDHAR JHA --------- Dharnidhar Jha, J. The Criminal Writ Application has been 2 preferred by Kapil Muni Rai for challenging the jurisdiction of the Authorized Officer, who was adjudicating Confiscation Case No. 6 (cc) of 2010 and was also negating the objection raised before him that he did not have the jurisdiction as the properties, which were the subject matter of the confiscation case, were not located anywhere in the jurisdiction of the Court situated at Bhagalpur. 2. The Criminal Appeal arises out of order passed on 23rd July, 2011 by Special Court II, Vigilance, Bhagalpur, in the above noted confiscation case by which the learned Authorized Officer designated under Rule 9 of the Special Courts Rule, 2010 was directing the confiscation of the properties which were detailed in Schedules A and B of the petition filed under Section 13 of the Act by the State of Bihar. It was alleged that the appellant was possessing the properties either in his own name or in the names of different persons, like, his wife and other close relatives. Properties were worth Rs.1,07,33,698/- only. The learned Authorized Officer directed the properties detailed in Schedules A and B of the petition to be confiscated and, accordingly, issued the direction to the District Magistrates both of Patna and Ara to take over possession of the properties covered by Schedules A and B of the application under Section 13 of the Act within 30 days of the service of the impugned order 3 upon each of them. 3. So far as the writ application is concerned, after some argument and on being pointed out that in view of the Division Bench decision in the case of Sanjay Kumar versus State of Bihar, 2011(1) PLJR 1168 that it would not be fair that the same Judge was hearing the trial also who had adjudicated upon the petition under Section 13 of the Act in respect of the same delinquent Public Servant, the State Government came up with necessary notifications creating different jurisdictions for adjudication of petition under Section 13 of the Act as that was not going to prejudice the trial of the delinquent Public Servant. When there was no specific bar in creation of jurisdiction as the Bihar Special Courts Act was, in itself, sufficiently creating the trial procedure indicating the jurisdiction to take cognizance of the offence to try it, then it would not be necessary to revert back to the provisions of the Prevention of the Corruption Act as to point out that a particular Officer or a Court may not or may have the jurisdiction to proceed either with the trial or hearing of the petition under Section 13 of the Act. 4. After being pointed out the above position, which appears coming into existence with the due consultation between the Court and the Government, Sri Rajeev Kumar Verma, the learned Senior Counsel appearing for the appellant/petitioner 4 sought permission to withdraw the writ application and, accordingly, the writ petition is dismissed as withdrawn. 5. As regards the merits of the Criminal Appeal challenging order dated 23rd July, 2011 passed by the Authorized Officer directing the confiscation of the properties covered by Schedules A and B of the petition filed by the State of Bihar before him under Section 13 of the Act, I find that it has to be allowed by setting aside the impugned order only for one reason that there was no dispute in the fact that the wife and other close relatives or persons were holding properties besides the delinquent Public Servant, which was claimed to be acquired by the delinquent Public Servant, i.e., the appellant by commission of the offence under Section 2(d) of the Act. Those persons, who were admittedly holding properties or in whose names they stood as per documents of acquisition, admittedly were not impleaded as parties so as to be noticed and heard. The simple principle of justicing appears divorced by the Officers who were presenting the petition as also by Officer who was presiding over the Court of Special Court II, Vigilance, Bhagalpur. They missed to look to the provision of Section 14 of the Act. If they could have consulted the provision, they could have come to the conclusion that the petition could not be proceeded with and the order could not be passed unless the delinquent Officer or the persons who 5 were supposed to be holding the properties which were allegedly acquired by commission of the offence under Section 2(d) of the Act, had been properly noticed and required to appear and file their defence statements. The above requirement was so plainly appearing from the provision that no one could have missed impleading necessary persons as opposite parties while presenting the petition under Section 13 of the Act and no Court could have itself missed issuing the notice to such necessary persons. This aspect of the matter was highlighted by me recently in another Criminal Appeal bearing no. 959 of 2011 (Naga Ram versus State of Bihar) in which also a similar order was passed by the same learned Judge in which he had also not issued any notice to persons who were, undisputedly, holding properties, which were believed by the State Government to be acquired by the commission of the offence under Section 2(d) of the Act. I have highlighted the necessity of impleading persons other than the delinquent Officer as necessary parties in the Judgment of Naga Ram (Supra) and that aspect of the matter has properly been dealt with by me in paragaraphs 5, 6, 7, 8 and 9. In fact, if one had considered the provision of section 14 of the Act, one would have found that it was the duty of the Authorized Officer to have issued notice to all persons who appeared from statements made and prima facie evidence produced by the state 6 and others to hold money or other properties on behalf of the delinquent public servant. 6. Thus, what I find is that the impugned order passed by the learned Authorized Officer directing the confiscation of the properties covered by Schedules A and B of the petition filed under Section 13 without impleading the persons necessary to be impleaded or without issuing a notice to each of them calling upon him or her to appear and file his or her written statement of defence, has to be set aside and, accordingly, it is set aside. 7. On account of the order impugned herein being set aside, the matter is remitted back to the Court below, i.e., the Special Court II, Bhagalpur for proceeding in accordance with the provisions of law which has been properly explained and indicated in two Judgments rendered by this Court, i.e., S.S. Verma versus State of Bihar, 2011(3) PLJR 813 and Naga Ram versus State of Bihar (Supra). 8. The most disturbing aspect of the present appeal was that in spite of being pointed out on quite some other occasions that the affidavits which could be filed in such cases have to be very clear and the State has to take further precaution in impleading the necessary persons as parties, the Officers of the State are simply found lacking in the above compliance with the provisions of Sections 13 and 14 of the Act. While dealing with 7 that aspect in Naga Ram, I had pointed out the deficiency in paragraph 13 of the Judgment, which paragraph I quote:- “While I was perusing the brief of the case, which was presented before the lower court, I was simply surprised to find that the manner in which the affidavits were filed could not be approved of. One could not get away with the requirements of law. The evidence has to be prima facie clear and it has to be produced on affidavit. That particular provision under section 13 of the Act, which is further elaborated by the relevant provisions of Rule 14 of the Rules, requires that the prima facie evidence has to be stated on affidavit. I have elaborately explained as to why there is need of placing evidence through affidavit in S.S. Verma (supra). I have made reference to section 5 of Criminal Law (Amendment) Ordinance, 1944 and section 295 Cr.P.C. Section 5 of the Criminal Law (Amendment) Ordinance, 1944 requires that the evidence before the District Judge could be tendered as per CPC. I was referring to Order 18 Rule 4 CPC which requires taking evidence on affidavit. Likewise, I was holding that when evidence is required to be given on affidavit on the character of a public servant, then it is virtually asking the authority who is required to tender evidence, to give evidence on the credentials of the public servant and that was permissible to be done through affidavit as per requirement of section 295 Cr.P.C. I was making 8 those reference in paragraph 46 of S.S. Verma (supra) only to elaborate as to how the procedures set down by section 13 of the Act was in line with the legislature precedents of formulating procedures as regards giving evidence in such proceedings, but I never pointed out that giving affidavits does not mean that the affidavit should be deficient in giving required inkling as to what was the source of evidence. Not only that, knowledge of the person about the contents of the affidavit has to be stated as the evidence is of the person about the contents of the documents which the person wants to be accepted as evidence in support of the statements made by the State Government in the petition filed under section 13 of the Act. The affidavit which was filed by Ratnamani Sanjeev, Senior Deputy Superintendent of police appears completely deficient and is highly wanting on satisfactory details so as to be falling in consonance with the requirements under section 13 of the Act and Rule 14 of the Rules. It was not only a shoddy draft but appeared as if the State and its officers were taking it for granted that whatever rubbish they placed before the Court or Authority, would be accepted to pass an order in their favour. They should be wiser and careful as this attitude and approach is not only illustrative of an attitude of disregard for procedure but also to the authority of the court and is, as such, dangerously 9 detrimental to public interest, which is the central aim to be accomplished by the Act.” 9. The Court finds itself anguished on account of the deficiency, which has crept in the present petition also and the learned counsel appearing for the Vigilance Department was informed that such serious matters are being handled with such laxity on the part of the Officers of the State, both in presenting the petition as also in swearing the affidavit. It is desirable that the concerned Officers of the State are properly informed by the learned Senior Counsel who is appearing as Law Officer, In- Charge, Vigilance Department so that the correctional measures are initiated and the petitions which are filed henceforth are filed defectless, so that this Court is not forced to invest its valuable time in an exercise of futility. There was a feeling in me as if the officers of the State or the person(s) authorized by the State of Bihar probably had gone as hands in gloves with public servants in such cases so as to helping them out and thus were defeating the very purpose of the Act. The Court directs the Chief Secretary to hold an enquiry as to how such lapses in utter violation of the provision could occur and if need be remove all concerned from the panel of ensuring the implementation of the Act, with a report to the Court on action taken. 10. This appeal is allowed and the matter is remitted back to the learned Authorized Officer, Special Court II, 10 Bhagalpur for rehearing. If the State so desires, it may remove the defects by filing amendment petition in the court below. 11. A copy of the Judgment shall be made over to learned senior counsel appearing for the Vigilance Department for apprising the State Government and its officers about the need to buckle the belt up and ensure proper filing and prosecution of the petitions under section 13 of the Act. (Dharnidhar Jha, J.) Patna High Court, The 21st October, 2011, Anil/Bhardwaj.