CIVIL WRIT JURISDICTION CASE No.10455 OF 2010 1-SANJAY KUMAR S/O LATE PHULDEO PRASAD, R/O HOUSE NO. 402, SHANTI LOK APARTMENT, SHEIKHPURA, P.S.SHASTRI NAGAR, DISTT- PATNA……………………………………………………………….PETITIONER Versus 1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, BIHAR, PATNA 2-PRINCIPAL SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR, PATNA 3-SECRETARY, CABINET VIGILANCE DEPARTMENT BIHAR, PATNA…………………………………………………………….RESPONDENTS with CWJC No.10456 OF 2010 1-SURESH PRASAD S/O LATE SATYANARAYAN PRASAD R/O VILL SABALI, P.O.KHAJUHATTI, P.S.BAIKHUTNPUR, DISTT- GOPALGANJ…………………………………………………………PETITIONER Versus 1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY BIHAR, PATNA. 2-PRINCIPAL SECRETARY, CABINET VIGILANCE DEPARTMENT BIHAR, PATNA. 3-SECRETARY, CABINET VIGILANCE DEPARTMENT BIHAR, PATNA…………………………………………………………..(RESPONDENTS) with CWJC No.10692 OF 2010 1-WAKIL PRASAD YADAV S/O LATE KISHAN PRASAD YADAV R/O KRISHNA KUTIR, ABHIYANTA NAGAR, P.S.- RUPASPUR, WEST OF CANAL, BAILEY ROAD, PATNA…………………………….…(PETITIONER) Versus 1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY 2-PRINCIPAL SECRETARY CABINET VIGILANCE DEPARTMENT, BIHAR, PATNA 3-SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR, PATNA ……………………………………………………………………(RESPONDENTS) with CWJC No.10735 OF 2010 1-YOGENDRA KUMAR JAISWAL S/O LATE JAGANNATH PRASAD R/O SHIVPURI, PROFESSOR'S COLONY ROAD, P.S.- SHASTRI NAGAR, DISTT.- PATNA- 800023…………………………………………………….(PETITIONER) Versus 1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, BIHAR, PATNA. 2 2-PRINCIPAL SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR, PATNA. 3-SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR, PATNA ……………………………………………………………………(RESPONDENTS) with CWJC No.10983 OF 2010 1-NAGA RAM S/O LATE MAHADEV RAM R/O GRAM+P.O.- BHITBHERWAN, P.S.- GOPALGANJ, DISTT.- GOPALGANJ……………………………………………………….(PETITIONER) Versus 1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, BIHAR, PATNA 2-PRINCIPAL SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR, PATNA 3-SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR, PATNA ……………………………………………………………………(RESPONDENTS) with CWJC No.11540 OF 2010 1-NARAYAN MISHRA S/O LATE KRISHNA CHANDRA MISHRA, R/O 36, VED NAGAR, MADHUKUNJ, RUKANPURA, P.S.-RUPASPUR, DISTT.- PATNA-800 014…………………………………………………...(PETITIONER) Versus 1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA 2-THE UNION OF INDIA THROUGH THE HOME SECRETARY, GOVERNMENT OF INDIA 3-UNION LAW SECRETARY, GOVERNMENT OF INDIA, NEW DELHI 4-PRINCIPAL SECRETARY, HOME DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 5-PRINCIPAL SECRETARY, VIGILANCE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 6-DIRECTOR GENERAL, VIGILANCE INVESTIGATION BUREAU, PATNA 7-INSPECTOR GENERAL, SPECIAL VIGILANCE UNIT, PATNA …………………………………………………………………...(RESPONDENTS) with CR.W.J.C. NO. 951 OF 2010 ANIL KUMAR SON OF LATE ISHWAR SHARAN LAL R/O HOUSE NO.54 WEST BOARING CANAL ROAD. P.S.SRI KRISHNAPURI TOWN & DISTRICT-PATNA…………………………………………………...PETITIONER Versus THE STATE OF BIHAR TROUGH VIGILANCE……………….RESPONDENTS. with CWJC No.14044 OF 2010 3 1-SHIVA SHANKAR VERMA S/O RAM PAL VERMA R/O HOUSE NO. 406, SAUBHAGYA SHARMA PATH, RUKUNPURA, P.S.- RUPASPUR, DISTT.- PATNA…………..(PETITIONER) Versus 1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, BIHAR, PATNA 2-THE PRINCIPAL SECRETARY, CABINET VIGTILANCE DEPARTMENT, BIHAR, PATNA 3-THE SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR, PATNA …………………………………………………………………...(RESPONDENTS) ----------- For the petitioners : Mr.Y.V. Giri, Sr. Advoacate Mr.Chittranjan Sinha, Sr.Advocate Mr.Abhinav Shrivastava, Advocate Mr.Ravindra Nath Dubey, Advocate Mr. A.D. Verma, Advocate Mr. Narayan Mishra (in person) Mr. Sanjeet Kumar Tiwari, Advocate Mr. Indu Bhushan, Advocate Mr. Sanjeev Kumar, Advocate For the State : Mr. Ram Balak Mahto, Advocate General Mr. Lalit Kishore, AAG-I Mr. A. Amanullah, G.A. Mr. Vikash Kumar, Advocate. Mr. Krishana Chandra, Advocate. Mr. Prabhu Narayan Sharma For Vigilance : Mr. Arvind Kumar, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE DR. JUSTICE RAVI RANJAN ---------- Shiva Kirti Singh, J. All the eight writ petitions have been heard together as analogous matters because they contain common prayers questioning the constitutional validity of Bihar Special Courts Act, 2009 (hereinafter referred to as the „Act‟) and in particular the 4 validity of Section 5, 13, 14, 15 and 18 of the said Act. The petitioners have also challenged declarations issued on various dates in respect of individual petitioners in terms of Section 5(1) of the Act, as a result whereof cases lodged by Vigilance Department of the State Government against the petitioners for various offences including offence under Section 13 (1) (e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the „Act of 1988‟) shall be tried by Special Court established under Section 3 of the Act. In the context of effect of Section 6 (2) of the Act on pending cases, the validity of this provision has also been seriously challenged on the ground that the Act cannot be made retrospective because it will expose the petitioners to a greater penalty than what is envisaged under the Act of 1988, which would violate Article 20 (1) of the Constitution of India. The other provisions particularly those under Section 5 and Section 13 have been challenged mainly on the ground of excessive and unbridled delegation and violation of Article 14 of the Constitution of India. 2. There is no need in these cases to go into details of facts because there is no dispute that the petitioners are/were public servants and are facing criminal cases lodged by the Vigilance Department, Government of Bihar for various offences including offence under the Act of 1988, particularly Section 13 (1) (e), on the allegation of having pecuniary resources or property disproportionate to their known source of 5 income. If the Act had not been enacted or if it is declared ultra vires then the petitioners will be tried by Special Judge appointed under the Act of 1988. Petitioners are aggrieved mainly because the cases against them shall be tried by Special Courts under the Act which may expose them to a proceeding for Confiscation under Section 13 and other provisions in Chapter III of the Act. 3. Before adverting to impugned features of the Act, the various grounds of challenge to their constitutionality and the submissions of the parties, it would be appropriate to notice that the Act of 1988 was enacted by the Parliament with the object to consolidate and amend the law relating to the Prevention of Corruption and the matters connected therewith. That Act contains detailed provisions including definitions and is still operational and has not been repealed. Section 4 (4) of that Act contains a mandate that a Special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis. In that Act there is no provision like Section 11 of the Act which provides that a Special Court shall not adjourn any trial for any purpose unless the adjournment is necessary in the interest of justice for which reasons should be recorded in writing. The Special Court is also required to make endeavour to dispose of the trial within a period of one year from the date of its institution or transfer, as the case may be. In the Act of 1988 there is no 6 provision for confiscation of property which is now provided under the Act as per provisions of Section 13 to 19 contained in Chapter-III. 4. The Preamble of the Act which has been published in the extraordinary gazette dated 8th February 2010 with a Notification that it has received prior assent of the President mentions that the Act is to provide for speedy trial of certain class of offences and for confiscation of the properties involved. The Preamble also contains further clauses indicating the need to confiscate ill gotten assets of public servants found disproportionate to their known source of income and the need to bring the trial of such public servants to a speedy termination. The Act, in the definition clause i.e., Section 2 refers to the Prevention of Corruption Act, 1988 as “Act” and also to the Code of Criminal Procedure 1973 as the “Code”. “Offence” has been defined as an offence of criminal misconduct which attracts Section 13 (1) (e) of the 1988 Act independentally or in combination with other provision of the 1988 Act or any provision of the Indian Penal Code. “Special Court” means Special Court established under Section 3 of the Act. Other words and expressions used in the Act are to have the meanings assigned to them in the Act of 1988 or the Code of Criminal Procedure. Section 21 of the Act clearly provides that the provisions of the Act shall be in addition to and not in derogation of any other law for the time being in force and Section 26 gives the Act an over-riding effect over the Act of 1988, the Criminal 7 Law Amendment Ordinance, 1944 or any other law for the time being in force. 5. Sections 3 and 4 provide for establishment of Special Courts and cognizance of cases by such Courts. Section 5 vests power in the State Government and requires it to make a declaration to that effect in every case in which there is, prima facie, evidence of the commission of an offence as defined under the Act committed by a public servant. Section 5 (2) provides that such declaration shall not be called in question in any Court. As per Section 6, the effect of such declaration is that prosecution in respect of offence shall be instituted only in Special Court and where the declaration relates to an offence for which prosecution has already been instituted and the proceedings are pending in any Court other than Special Court then such proceeding, notwithstanding anything contained in any other law in force, shall stand transferred to Special Court for trial of offence in accordance with the Act. Section 7 spells out jurisdiction of Special Court for the trial of offence covered by the Act. According to Section 8, a Special Court shall follow the procedure prescribed by the Court for the trial of warrant cases before a Magistrate and unless inconsistent with the Act, the provisions of the Code and the Act of 1988 shall apply to the proceeding before Special Court. A Special Court may pass, upon any person convicted by it, any sentence authorized by law for the punishment of the offence of which such person 8 is convicted. In the Act there is no independent and separate provision relating to punishment of any offence. Section 9 provides for an appeal from any judgment and sentence of Special Court to the High Court of Patna, both on facts and law. 6. Chapter-III of the Act begins with Section 13 which provides for confiscation of property. This provision has been seriously assailed by the petitioners on various grounds and shall be dealt with separately. The power to initiate a confiscation proceeding before an Authorized Officer has been vested in the State Government which may, on the basis of, prima facie evidence authorize the public prosecutor to make an application before the Authorized Officer, if it has reasons to believe that any person who was or is a public servant has committed the offence, for confiscation of money and other property which the State Government believes to have been procured by means of offence. Authorized Officer has been defined in Section 2 (b) and means any serving officer belonging to Bihar Superior Judicial Services and who is or has been Sessions Judge/Additional Sessions Judge, nominated by the State Government with the concurrence of the High Court for the purpose of Section 13. An application for confiscation is required to be supported by one or more affidavits disclosing the grounds for the belief that the said person has committed the offence and the amount of money and estimated value of other property believed to have been procured by 9 means of offence and also necessary information and details of such money and property. Section 14 provides for notice for confiscation. Section 14(3) permits rebuttal of evidence, information and particulars brought before the Authorized Officer under Section 14(1) in course of the trial of guilt of offender by the Special Court. Section 15 provides the procedure for arriving at findings necessary for confiscation in general or in certain cases where the money or property specified is held through any other person and/ or to a certain extent only. However, if the market price of the property confiscated is deposited then as per proviso to Section 15(3), the property shall not be confiscated. Section 15(6) stipulates that the order of confiscation passed under this Section, subject to any order passed in appeal under Section 17, shall be final and shall not be called in question in any court of law. According to Section 16, transfer of any money or property referred to in notice under Section 14 shall be null and void after the issue of notice. Section 17 provides for an appeal against order of Authorized Officer to the High Court. Such appeal is required to be disposed of preferably within a period of six months and stay order, if any, passed in an appeal shall not remain in force beyond the prescribed period of disposal of appeal as per sub- section (3) of Section 17. Section 18 provides the power and procedure to take possession of confiscated money or property. Section 19 which is the last Section of Chapter-III provides for refund of confiscated money 10 or property as per order of the High Court in appeal or upon acquittal by Special Court. In case, it is found not possible for any reason to return the property, the affected person shall be paid the price thereof including the money so confiscated with the interest @ 5% per annum calculated from the date of confiscation. 7. As noticed earlier the grievance of the petitioners is mainly against such provisions of the Act and declaration made under Section-5 which brings the petitioners‟ cases under the purview of the Act to be tried by the Special Judge and exposes them to the risk of confiscation proceeding. A faint submission was made at the initial stage of the arguments that the State Legislature does not have legislative competence because the Parliament has already enacted the Act of 1988 which contains in a consolidated form law relating to the Prevention of Corruption and the matters connected therewith. However, this argument was based upon an erroneous impression that the prior assent of the President has not been obtained for enactment of the Act. Once it was shown from the relevant gazette Notification dated 8th February 2010 that such assent is available, this ground to challenge the vires of the Act was not pressed. However, an attempt was made to demonstrate that the purpose of the Act was already taken care of by the provision in Section 4 (4) of the Act of 1988 that the Special Judge shall, as far as practicable, hold the trial of offence on day-to-day basis. According to learned 11 counsel for the petitioners this provision was sufficient to take care of expeditious disposal of trials for offence defined under the Act. So far as the confiscation of property is concerned, it was submitted that under the Code of Criminal Procedure, there are sufficient provisions such as provision for compensation under Section 357 and provision for disposal of property at conclusion of trial under Section 452 and hence there was no real need to enact the Act for either of the aforesaid two purposes. However, the petitioners could not show that the provisions meant to expedite disposal or for confiscation were exactly of similar nature. The provisions for expeditious disposal and confiscation in the Act are visibly and clearly different than those existing from before. To question their utility or good effect would amount to questioning the wisdom of the Legislature which is clearly impermissible. Hence, such submissions are found to be of no significance and do not affect the validity and constitutionality of the Act or the impugned provisions. 8. Coming to the specific provisions impugned by the petitioners, the first and foremost attack is upon Sections 5 (1) and 5(2) of the Act. Assail upon Section 5(1) is on the ground that there are no guidelines provided by the Legislature and it has been left to the whims and unguided discretion of the State Government to select or not to select any particular case involving the offence for purpose of issuing a declaration 12 that it should be tried under the Act. For easy reference Section-5 is extracted hereinbelow: 5. Declaration of cases to Be dealt with under This Act.- (1) If the State Government is of the opinion that there is prima-facie evidence of the commission of an offence alleged to have been committed by a person, who has held or is holding public and is or has been public servant within the meaning of section 2(c) of the Prevention of Corruption Act, 1988 in the State of Bihar, the State Government shall make a declaration to that effect in every case in which it is of the aforesaid opinion. (2) Such declaration shall not be called in question in any Court. 9. On behalf of the petitioners it has been pleaded and argued that Section-5 (1) of the Act suffers from vice of unreasonable classification between offences covered by the Act of 1988 triable by special Judge under that Act and offence defined under the Act which shall now be tried by a Special Court. According to petitioners such classification is unreasonable and the purpose shown for such classification namely confiscation of property acquired by the offence and speedier trial has no nexus with the classification. Secondly, it has been argued that the power vested in the State Government for declaration of cases to be dealt with under the Act is without any guidelines. It amounts to abdication of legislative power by the legislature in favour of the State Government, the executive, and hence violates the Constitution. Lastly, it was submitted that the power vested in the State Government being unbridled is capable of discrimination between the cases of particular public servants facing charge of the 13 offence under the Act. The State Government may issue a declaration in one case and may not issue in another case although the facts for the purpose of prima facie evidence may be identical. 10. Learned counsels appearing for the petitioners have placed strong reliance upon judgment of the Supreme Court in the case of State of West Bengal v. Anwar Ali AIR 1952 SC 75 in support of their plea of impermissible classification without intelligible differentia. In that case the constitutional validity of West Bengal Special Court‟s Act 1950 arose for determination before Supreme Court. The preamble of that Act declared the purpose of the Act to be- to provide for the speedier trial of certain offence. Section-5 which was the main provision under challenge provided for trial by a Special Court, of such offence or classes of offence or cases or class of cases, as the State Government may by general or special order in writing, direct. Sub-Section-2 of Section-5 excluded any offence for which the trial had already commenced before the coming into force of the special Act. Considering the aforesaid provision the Supreme Court found that the provision enabled discrimination because the necessity of a speedy trial by itself is too vague, uncertain and illusive criterion to form the basis of a valid and reasonable classification. The Court further held that a rule of procedure laid down by law would come as much within the purview of Article-14 as any rule of substantive law and it is necessary that all litigants, who 14 are similarly situated, are afforded same procedural rights for relief and for defence without any discrimination. In effect, in that case it was found that the provision though enabled the State to select some of the offences or cases to be tried by Special Court, there was no classification at all in the real sense of the term because the differentiation was not based on any characteristic which are peculiar to persons or cases which are subjected to the special procedure prescribed by the Act. The classification enabled by the Act was found to be based upon no reasonable or on some differences bearing just and proper relation to the attempted classification. Thus, in absence of any discernable differentia, the classification was held to be hostile, discriminatory and contra Article-14 of the Constitution. For highlighting the aforesaid findings and related discussions various paragraphs of that judgment were highlighted before us in order to persuade us to hold that intelligible differentia is a sine qua non for a valid qualification. We have no difficulty in accepting the aforesaid legal principle in the context of Article-14 of the Constitution. 11. The difficulty, however, arises on account of apparent differences between Section 5 of the Act in question and Section-5 of the West Bengal Special Court‟s Act 1950. On a careful perusal of Section-5 of the Act under question it is found that offence for the purpose of Act has been well defined under Section-2(e) of the Act and as a result the 15 declaration by the State Government can relate only to an offence of criminal misconduct involving or attracting Section-13 (1)(e) of the 1988 Act committed by a person who has held or is holding public office and is or has been a public servant as defined under the Act of 1988. This provides an intelligible differentia between the offence covered by Section-5 of the Act and those left out, although they may involve misconduct or offence under other provisions of 1988 Act. 12. The next issue, as per settled law is duty to find out whether such intelligible differentia has any nexus with the declared object of the Act, i.e., confiscation of the ill-gotten property from the offence and speedier trial of the offence. Offence under Section-13(1)(e)of the 1988 Act is a criminal misconduct by a public servant which as per the definition is attracted-“if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income”. As per explanation to Section-13(1)(e), “for the purpose of this Section known sources of income” means, income derived from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. The punishment provided for criminal misconduct by a public servant under Section-13(2) of 1988 Act is imprisonment for a 16 term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. 13. The purpose of the Act is to expedite the trial and facilitate confiscation of ill-gotten gains from the offence. For this object the classification has been done by the legislature so as to bring cases involving disproportionate money or property within the ambit of the Act. In view of the purpose of the Act as already noticed, the intelligible differentia for classification and thereby selection of offence defined, for the applicability of the Act clearly has nexus with the object sought to be achieved by the Act. 14. On behalf of petitioners reliance was placed upon judgment of Supreme Court in the case of In re ART. 143, Constitution Of India, Etc, Air 1951 SC 332 and in the case of In Re The Special Courts Bill, 1978, 1979 1 SCC 380 in support of well established proposition of law that the legislature must discharge its primary legislative function itself and not through others and it cannot abdicate its essential legislative functions by resorting to excessive and unguided delegation to the executive. Excessive and unguided delegation to the executive definitely runs counter to the constitutional scheme of separation of powers between different wings of the State whereunder it is the obligation of the legislature to legislate. This principle has been followed in the case of M/s Devi Das v. State of Punjab, AIR 1967 SC 1895 and in case of 17 Maneka Gandhi v. Union Of India (1978) 1 SCC 248. It was rightly pointed out on the basis of aforesaid judgments of the Supreme Court and also in the case of A.N Parasuraman v. State of T.N., (1989) 4 SCC 683 that legislature cannot delegate its essential functions of laying down legislative policy. 15. On behalf of the State, counter arguments were advanced by learned Advocate General. It was submitted that the propositions of law advanced on behalf of petitioners in respect