W.P.(Crl.) No. 433 of 2007, W.P.(Crl.) Nos. 318, 330, 390,443, 498,524,549, 562, 588, 633,644, 710, 743 AND 754 of 2008, W.P. (CRL.) NOS. 8, 18, 33, 42, 43, 54, 55, 56, 57, 90, 107, 114, 139, 158, 163, 185, 187, 196, 206, 225, 243, 255, 294, 330, 389, 430, 445, 450, 540, 546, 578, 580, 587, 647, 650 AND 733 of 2009, AND W.P .(Crl.) NOS. 514 & 524 of 2010 ------------------------- In the matter of applications under Articles 226 and 227 of the Constitution of India. ----------- Dibyadarshi Biswal & Ors. (In W.P.(Crl.) No. 433 of 2007) Kalicharan Mohapatra ( In W.P.(Crl.) No. 318 of 2008) Kshetrabasi Das (In W.P.(Crl.) Nos. 330 & 710 of 2008) Balaram Rout (In W.P.(Crl.) No. 390 of 2008) Amaresh Kumar Jaiswal (In W.P.(Crl.) No. 443 of 2008) Hargobinda Prasad Patra (In W.P.(Crl.) No. 498 OF 2008) Suresh Ku. Panda (In W.P.(Crl.) No. 524 of 2008) Nikunja Kishore Parija (In W.P.(Crl.) No. 549 of 2008) Sadananda Mishra ( In W.P.(Crl.) No. 562 of 2008) Jalandhar Pradhan (In W.P.(Crl.) No. 588 of 2008) Arunodaya Swain (in W.P.(Crl.) No. 633 of 2008) Ranjan Ku. Kar (In W.P.(Crl.) No. 644 of 2008) Ramesh Charan Behera (In W.P.(Crl.) No. 743 of 2008) Gnahashyam Mohapatra (In W.P.(Crl.) No. 754 of 2008) Charu Chandra Parida (in W.P.(Crl.) No. 8 of 2009) Sudhir Ku. Bijayendra Narayan (in W.P.(Crl.) No. 18 of 2009) Bishnu Mohan Das (in W.P.(Crl.) No. 33 of 2009) Ananta Ram Behera ( In W.P.(Crl.) No. 42 of 2009) Biswanath Nayak ( in W.P.(Crl.) No. 43 of 2009) Gandharb Sahoo ( in W.P.(Crl.) No. 54 of 2009 ) Niranjan Mohapatra ( In W.P.(Crl.) No. 55 of 2009) Sarat Ku. Mohapatra (In W.P.(Crl.) No. 56 of 2009) Laxmikanta Mohanty (In W.P.(Crl.) No. 57 of 2009) Baidyanath Jena (In W.P.(Crl.) No. 90 of 2009) Sharat Ku. Mohanty (In W.P.(Crl.) No. 107 of 2009) Surya Narayan Behera (In W.P.(Crl.) No. 114 of 2009) Sanjib Ku. Ray ( In W.P.(Crl.) No. 139 of 2009 ) Subranshu Sekhar Padhi ( In W.P.(Crl.) No. 158 of 2009) Kumuda Chandra Patnaik ( In W.P.(Crl.) No. 163 of 2009) Nrusingha Ch. Nayak (In W.P.(Crl.) No. 185 of 2009) Satrughana Barik ( In W.P.(Crl.) No. 187 of 2009) Niranjan Mallick (In W.P.(Crl.) No. 196 of 2009) Hemant Ku. Mohanty ( In W.P.(Crl.) No. 206 of 2009) Surendranath Nayak (In W.P.(Crl.) No. 225 of 2009) Bipin Bihari Panda (In W.P.(Crl.) No. 243 of 2009) Rajanikanta Padhy ( In W.P.(Crl.) No. 255 of 2009) M. Indra Mohan Patnaik (In W.P.(Crl.) No. 294 of 2009) Jitendranath Mohanty (In W.P.(Crl.) No. 330 of 2009) Ramesh Ch. Moharana (In W.P.(Crl.) No. 389 of 2009) Rabindranath Panigrahi ( In W.P.(Crl.) No. 430 of 2009) Narayan Nayak (In W.P.(Crl.) No. 445 of 2009) Chittaranjan Das (In W.P.(Crl.) No. 450 of 2009 ) Laxminarayan Choudhury (In W.P.(Crl.) No. 540 of 2009) Arun Ch. Parida (In W.P.(Crl.) No. 546 of 2009) Choda Ram Krishnadu (In W.P.(Crl.) No. 578 of 2009) Bichitrananda Muduli (In W.P.(Crl.) No. 580 of 2009) Subhas Chandra Das (In W.P.(Crl.) No. 587 of 2009) Kishore Ch. Sahoo (In W.P.(Crl.) No. 647 of 2009) Chandi Prasad Dash ( In W.P.(Crl.) No. 650 of 2009) Iswar Chandra Behera (In W.P.(Crl.) No. 733 of 2009) Swaraj Dutta (In W.P.(Crl.) No. 514 of 2010) Akshaya Ku. Mohanty (In W.P.(Crl.) No. 524 of 2010) ………. Petitioners. -Versus- State of Orissa, represented through Principal Secretary to Government, Home Department and others. ……… Opposite parties. For petitioner (s): M/s. L.N. Patnaik, R. Mohanty & J. Rout. (In W.P.(Crl.) No. 390 of 2008) M/s. G.K. Mishra, G.N.Mishra, S.C. Sahoo, A.K. Mishra & P.K. Sahoo. (In W.P.(Crl.) Nos. 225 & 733 of 2009) M/s. S.K. Mund, H.K. Mund, A.R. Mohanty & A.K. Dei. (In W.P.(Crl.) Nos. 524,549,562,644, & 754 of 2008, and W.P.(Crl.) Nos. 18,42, 54, 57,114,187,255,330,389,450,587, & 650 of 2009) Mr. Bijaya Ku. Behura, M/s. S.K. Mund & Associates. (In WP (Crl.) No. 633 of 2008) M/s. G.N. Mohapatra, P.K. Sahoo, S.K. Rout & S.K. Jena. (In W.P. (Crl.) Nos. 318, 330, 443, 498 & 710 of 2008, and W.P. (Crl.) Nos. 33, 56 & 196 of 2009) M/s. Prasant Routray, G.C. Patnaik, G.N. Panda, S. Routray, S.B. Das, S.R. Mishra, R. Acharya. (In W.P.(Crl.) Nos. 158, 163, 185, 243 & 294 of 2009) M/s. Deba Prasad Das & S.P. Panda. (In W.P.(Crl.) No. 743 of 2008, W.P.(Crl.)Nos. 55, 107 & 139 of 2009, and W.P.(Crl.) No.514 of - 2 - 2010). M/s. Samir Kumar Das, R.N. Mohanty-II & S.K. Mishra. (In W.P.(Crl.) No. 433 of 2007) M/s. Prasant Ku. Nanda & M.K. Das. (In W.P.(Crl.) No. 540 of 2009) M/s. S.S. Mohapatra & P. Mohapatra. (In W.P.(Crl.) No. 546 of 2009) M/s. S.C. Mohanty, P.K. Sahoo, J.K. Bastia & D.P. Mohanty. (In W.P.(Crl.) No. 578 of 2009) M/s. Pravakar Behera & B.A. Prusty (In W.P.(Crl.) No. 580 of 2009). M/s. D.P. Das & S. Behera. (In W.P.(Crl.) No. 206 of 2009) M/s. Pradipta Mohanty, D.N. Mohapatra, Smt. J. Mohanty, P.K. Nayak & S.N. Das. (In W.P.(Crl.) No. 647 of 2009) Er. N.K. Mohanty, B.K. Mohanty & S.K. Das. (In W.P.(Crl.) No. 445 of 2009) M/s. G.P. Dutta, M. Dutta, A. Ghosh & B.K. Sahoo. (In W.P.(Crl.) No. 430 of 2009) M/s. Soura Ch. Mohapatra, S.C. Mohapatra, P. Mohapatra & B.K. Das. (In W.P.(Crl.) No. 90 of 2009) M/s. H.M. Dhal, B.B. Swain, P.K. Patnaik, & A.S. Das. (In W.P.(Crl.) No. 43 of 2009) M/s. S.K. Sanganeria, P.C. Patnaik & P.C. Nayak. (In W.P.(Crl.) No. 8 of 2009) M/s. J.K. Panda, Miss. D.R. Nanda & B.B. Mohapatra. (In W.P.(Crl.) No. 588 of 2008) M/s. G.K. Mohanty, G.N. Samal, B.C. Ghadei & B. Nayak. (In W.P.(Crl.) No. 524 of 2010). For Opp. Parties : Mr. S.K. Padhi, Sr.Advocate (Spl. Counsel) (on behalf of State of Orissa) --------- P R E S E N T: THE HONOURABLE CHIEF JUSTICE MR. V.GOPALA GOWDA - 3 - AND THE HON’BLE MR. JUSTICE I.MAHANTY ------------------------------------------------------------------------------ Date of Judgment : 16-9-2010 ------------------------------------------------------------------------------ V. GOPALA GOWDA,C.J. In these writ petitions, the petitioners have challenged the constitutional validity of the Orissa Special Courts Act, 2006 and the Rules framed thereunder urging various facts and legal grounds. 2. Brief facts in nutshell are stated as under: The petitioner in each of the writ petitions is accused of offence punishable under section 13(2) read with Section 13 (1)(e) of the Prevention of Corruption Act, 1988. Originally each one of the petitioners case was pending either in the Court of Special Judge, Vigilance at Bhubaneswar or Cuttack or other places in the State. After establishment of the Special Courts pursuant to the notification issued by the State Government establishing Special Courts, the case of the petitioners were transferred to the respective Special Judge of the Special Courts established under the Orissa Special Courts Act. 3. The Orissa Special Courts Act has been passed by the Orissa Legislative Assembly and the same has been assented to by the President of India on 19.9.2007 and published in the Extra ordinary Orissa Gazette on 15.10.2007. The State Government in exercise of its power conferred under section 24 of the Orissa Special Courts Act, 2007, has framed rules called the Orissa Special Court Rules, 2007 (hereinafter called as ‘the Rules’ in short). The Rules specified the form of declaration. The State Government represented by the Home Department in exercise of power conferred under section 5 of the Act issued declaration vide Annexure-1 in each of the cases which was published in the Extra Ordinary Orissa Gazette on various dates. 4. The grounds of attack of the provisions of the Act and the Rules are briefly stated and the legal submissions made in support of the same are adverted to in this judgment. 5. The provisions of the Act in not defining as to who is holding “high public or political office” and defining the same in the Rules is not - 4 - permissible in law. The provisions of the Act and the Rules are unworkable on account of which there would be arbitrariness and discrimination in issuing the declaration in Form I. It is further urged that the Special Courts Act is prospective in nature and not applicable to the pending cases in the court of the Special Judges prior to 15.10.2007 when the impugned Act came into operation. The entire Rules framed thereunder and the declarations issued pursuant to the Act are violative of Article 14 of the Constitution. The provisions of Section 2 (a) and 2(e) are violative of Article 235 of the Constitution. Sections 4 and 9 of the Act are violative of Article 21 of the Constitution. Further the provisions contained in Chapter III of the Act are in contravention of the Constitutional provisions of Articles 14, 21(2) and (3) of the Constitution and apart from the same they are also violative of the principles of natural justice. We have heard Shri H.K.Mund, Mr.L.N.Patnaik, Mr.G.N.Mohapatra and Mr.Pradipta Mohanty, the learned counsel appearing for the petitioners in this batch of writ petitions and Mr.Balaram Rout, the petitioner in W.P.Crl.No.390 of 2008 in person. They raised more or less similar contentions. Leading the argument, Shri Mund placing reliance upon the judgment of the Supreme Court in R.Kalyani v. Janak C.Mehta and others, (2009) 1 SCC 516 and Paragraph 630 of the Halsbury’s Laws of England, Third Edition, 1961 Volume 36 contended that the Act is a penal statute and exproprietory in nature in view of the provisions introduced for confiscation of monies and properties of the accused under Chapter III. Therefore, the said provisions are required to be strictly construed in view of the interpretation made by the Supreme Court in R.Kalyani (supra) and according to paragraph 630 of Halsbury’s Laws of England referred to above, which interpreted that a statute is to be regarded as penal for the purposes of construction if it imposes a fine, penalty or forfeiture other than a penalty in the nature of liquidated damages, or other penalties which are in the nature of civil remedies. The general rule is that the same has to be strictly construed and should not be extended beyond their clear meaning. The provisions of Sections 4, 12, 13,14 to 16 and 18 of the - 5 - impugned Act are stated to be procedural in nature and the provisions of Section 3 and 15 thereof cannot be said to be procedural but substantive. The Prevention of Corruption Act, 1988 was enacted by the Parliament to provide a special jurisdiction to the persons who are facing the prosecution under the provisions of the said Ac t by trying their cases by the Special Judges appointed by the Central/State Government for such area or areas or for such case or group of cases as may be specified in the notification with a view to expedite the proceedings and for achieving day to day trial of cases. The Act amongst other things discourages stay of proceedings of the revisional jurisdiction of the High Court under section 397 read with section 401 of the Code of Criminal Procedure. The Prevention of Corruption Act being a complete code in itself, is applicable to all corruption cases, whereas the State Act is confined to cases of corruption under section 13(1)(e) of the Central Act against holder of high public and political office. The provision of Section 5 neither describes nor defines the same. Learned counsel for the petitioner contends that in the absence of definition of “high public and political office”, it is the duty of the Court to interpret the expression or the provision through internal or external aids provided in the legislation only if the expression or the provision could be so interpreted, otherwise the Court would be left with no alternative but to strike down the provision as being unworkable. Reliance is placed upon the decision of the Supreme Court in Utkal Contractors and Journey v. State of Orissa, AIR 1987 S.C. 1954 in support of the proposition of law wherein the apex Court made certain general observation regarding the interpretation of the statute that a statute is best understood if we know the reason for it- the same being safest guide to its interpretation. In support of the said contention, he placed reliance upon the Constitution Bench decision in Burrakur Coal Co. v. Union of India, AIR 1961 S.C. 954. It is further urged that when the Act omitted to describe or define the past holders of “high public or political office”, the Rules, 2007 defines the same in rule 2(1)(e) and (f) respectively to cure the provisions of the Act which is not permissible in law, for the reason that the - 6 - definition provided by the Rules cannot govern the provisions of the Act as it is being a superior legislation, the rules are subordinate legislation framed by the State Government. Therefore, the impugned Act is vague without giving the definition of “high public and political office”. Therefore, the State Government in defining the said office in the aforesaid Rules in exercise of its rule making power has exceeded its jurisdiction which is not provided in the State. Therefore, the provisions of the Act are vague and are liable to be struck down. 6. In support of the aforesaid contentions, a passage from the Halsbury’s Laws of England was quoted by the Apex Court in the case of Hotel Balaji and others v. State of A.P. and others, AIR 1993 SC 1048 (paras 29-30). It is further contended that in the absence of anything mentioned in the statement of objects and reasons, headings, marginal notes or preamble portion of the Act giving any indication as to what is meant by the State Legislature, when it used the expression “persons who held high public and political office” in section 5 of the Special Courts Act, the omission cannot be supplied through any purposive interpretation given by the Court. For this reason also, the Act needs to be struck down as it is vague and violative of Article 14 of the Constitution. 7. In the Act there is vagueness with regard to the jurisdiction of the Special Court over any “local area” or otherwise, remains unknown. The same is contrary to the well known principle that jurisdiction of a Court or a Judge implies the competence of such Court or a Judge to entertain and decide a disputed question of fact or law. In the absence of the same, once again the provisions of the Act suffer from vagueness. A comparison between the provision of Section 3 (1) of the Central Act and Section 3(1) of the State Act would clearly go to show that the Central Legislature required a notification by the Central or the State Government to make it clear as to class or classes, group or group of persons and the area or areas that were being covered by the jurisdiction of the Special Judges appointed for the purpose whereas the State Act in the corresponding Section 3 (1) requires the State Government to make a notification for appointment - 7 - of Special Courts, without further specifying the class or classes, group or group of persons, area or the areas or the territory of territories intended to be brought within the purview of the jurisdiction of such Courts. The same is further confounded by rule 3(2) of the Rules which is not provided in the Statute. Therefore, the same is not permissible in law. Hence, the impugned Act is liable to be struck down. 8. The definition of the term “offence” is incomplete as could be seen from Section 2(d) as it is simply stated that the said offence is punishable under section 13 (2) of the P.C.Act. Section 13(1)(e) of the P.C.Act defines the offence and the penal consequence is being provided in Section 13 (2) of the Act. Therefore, any charge for an offence which does not mention the penal consequence will be illegal. Hence the Act is unworkable in practice and is liable to be struck down. 9. De novo trial of the cases transferred to a Special Court under Section 6(2) and Section 10 of the Act is an inevitable consequence that would follow from cognizance being taken over again by a Special Court, as required under Section 4 of the Act. In support of the contention, learned counsel placed reliance on the decision of the Supreme Court in the case of S.K.Sinha, Chief Enforcement Officer v. Videocon International Ltd. And others, (2008) 2 SCC 492 to the effect that taking of cognizance is a sine qua non or condition precedent for holding a valid trial. The omission of the same in the provisions of the Act for taking cognizance before conducting a de novo trial in the Special Courts Act in respect of the transferred cases from the Special Judge Court is once again the Act is visited by vagueness and liable to be struck down. 10. Not providing the provision for appeal in the impugned Act against judgment of acquittal is bad in law for the reason that Section 248 (2) of the Code of Criminal Procedure provision is applicable to all criminal trials is governed by warrant procedure which governs the prosecution under the P.C.Act and Section 8(1) of the Act envisages an order or sentence following a finding of guilt. Sub-section (1) of - 8 - Section 8 envisages an order of acquittal. Therefore, there is no escape from the provisions that a judgment holding a person guilty or not guilty is to be followed by a sentence or an order of acquittal, as the case may be. Section 378 (1)(b) of the Code of Criminal Procedure provides for an appeal against the original or an appellate order of an acquittal by any court other than a High Court. That provision cannot be called in aid to sustain the glaring omission of an appeal or provision of an appeal from an order of acquittal as it clearly provides for an appeal against conviction. The omission negativing the right of appeal or revision to the accused is a significant departure from section 27 of the P.C.Act. 11. The various statutory rights and remedies that are provided under the Prevention of Corruption Act have been taken away by the Special Courts Act in the guise of expediting trial of cases by enacting the provision under section 13(1) which empowers the State Government to authorize the Public Prosecutor to initiate proceedings for confiscation, based on opinion of the State Government that a person who had held high public or political office and accused of offence under section 13(1)(e) of the Central Act had committed the said offence, which provisions of the Act do not envisage disclosure of any such evidence or materials or furnishing copies thereof to a person subjected to confiscation proceedings. Existence of prima facie evidence or otherwise being an essential function of the Court at the time of taking cognizance of the offence and thereafter at the time of framing of charge, declaration of the State Government as to existence of prima facie evidence against a person alleged against of having committed the offence after submission of the police report as provided under section 5 of the State Act does not fit into the scheme of administration of justice as contemplated under the Code of Criminal Procedure, which provision is applicable to the proceedings before the Special Courts in view of section 8 (2) of the Act. When the Court of a Judicial Magistrate is in seisin of the proceedings following the submission of the charge- sheet, such a declaration by the State Government has an - 9 - unmistakable tendency to influence or interfere with the course of administration of justice and is liable to be condemned and struck down as violative of Article 21 of the Constitution. The confiscation of money and property is provided in sections 13 to 19 of the Act, which is not mentioned in the statement of objects and reasons or the preamble portion of the Act, except in the heading of the same. Appointment of authorized officers before whom proceedings for confiscation could be initiated are provided in Section 2(a) and Section 13 (1) of the Act. On the culmination of the proceedings, monies and properties of the accused which are the subject matter of such proceedings are ordered to be confiscated and possession of which are required to be delivered or surrendered before the authorized officer under section 18(1). Eviction of an affected person or accused from any part of the residential premises, beyond the permitted period of the stay through use of force is provided in Section 18(2) of the Act which is bad in law. Conferment of power to use force as provided under section 18(2) of the Act to take possession of such house is once again unreasonable and arbitrary exercise of power and violation of Article 19(1)(e) read with Article 21 of the Constitution. Therefore, the aforesaid provisions are violative of the aforesaid Constitutional provisions and, therefore, the same are liable to be struck down. 12. The jurisdiction as to any enquiry or trial is provided in Chapter XIII of the Code of Criminal Procedure. Section 177 thereof provides for local jurisdiction. Orissa Act 9 of 2007 being a Special Act, does not provide that the aforesaid provisions of Chapter XIII of the Cr.P.C.would be applicable for conducting trial. The said provisions are violative of Articles 14, 19 and 21 of the Constitution. Learned counsel for the petitioners placed reliance on the decision of the Supreme Court in the case of Mirza Iqbal Hussain v. State of U.P., AIR 1983 SC 60 in support of the legal contention that the confiscation is one of the powers exercisable by a Court under section 452 Cr.P.C. at the conclusion of the trial, whereas the power now vested with the Authorised Officer at the stage of the proceedings is totally opposed to the substantial statutory rights of the accused conferred under the - 10 - Code of Criminal Procedure. Therefore, taking away such rights under the provisions of the Special Courts Act renders the Act arbitrary and the same is liable to be struck down. Confiscation provisions are provided under the various statutes, namely, Essential Commodities Act, 1955, Customs Act, 1962, Orissa Forest Act, 1972, Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, N.D.P.S.Act, 1985, Special Court Trial of Offences Relating to Transactions in Securities Act, 1992. The aforesaid Acts are to protect National wealth or to prevent smuggling and evasion of customs duties or hawala transactions that are offences against nation’s finance etc. whereas the monies and properties that may be subject matter of prosecution under section 13 (1)(e) of the Prevention of Corruption Act, prima facie belong to the person who has title or possession thereof and confiscation of the same before he or they are found guilty by a court trying him/them and recording a finding further that any part of the monies and properties were illegally obtained through corrupt means, confiscation of the same seems highly obnoxious on the face of it. Accusation of the alleged offence under section 13(1)(e) of the Prevention of Corruption Act is one of acquisition of assets disproportionate to the known source of income and probable resources over the years of the accused who occupied a public position and exercised public power for a spell during which, it is alleged, that the accused by accepting illegal gratification aggrandized himself- a pattern of accusation tragically and traumatically so common against public persons who have exercised and exited from public power, and a phenomenon so suggestive of Lord Acton’s famous dictum. The charge has a wide ranging scope and considerable temporal sweep, covering activities and acquisitions, sources and resources private and public dealings and nexus with finances personal and of relatives. The scope and object of the laws, thus do not afford any comparison with the laws cited supra although all the laws have