10/ 01-Mar-2011 IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.1395 of 2010 1. RAGHUBANSH KUNWAR S.O LATE RAM EKBAL KUNWAR R/O VILLAGE-TANRA, P.S.MOHIUDDIN NAGAR, DISTT-SAMASTIPUR AT PRESENT RESIDING AT 50A/1293 EAST CHITRAGUPTA NAGAR, P.S. PATRAKAR NAGAR, KANKARBAGH, PATNA. 2. SMT. LALITA DEVI W/O RAGHUBANSH KUNWAR S.O LATE RAM EKBAL KUNWAR R/O VILLAGE-TANRA, P.S.MOHIUDDIN NAGAR, DISTT-SAMASTIPUR AT PRESENT RESIDING AT 50A/1293 EAST CHITRAGUPTA NAGAR, P.S. PATRAKAR NAGAR, KANKARBAGH, PATNA…………………………………APPELLANTS Versus THE STATE OF BIHAR THROUGH VIGILANCE DEPARTMENT……………………….RESPONDENT. ----------- For appellants:- Mr. Rana Pratap Singh, Sr.Adv For Vigilance:- Mr. Rama Kant Sharma, Sr.Adv ----------- This appeal is against the order dated 10.12.2010 passed by Sri. Ramesh Chandra Mishra, Special Court No.2 (Vigilance) Patna in Special Confiscation Proceeding No.4 of 2010 whereby he has declared certain property of the appellants to be confiscated by the State of Bihar under the provisions of Bihar Special Court’s Act 2009. 2. It appears that in the Confiscation Proceeding the appellants raised dispute that they did not have copy of relevant documents and notice of the proceeding was 2 defective. This appeal was admitted on 22.02.2010 and on 04.01.2011 an interim order of status-quo was ordered by this Court which is continuing. On 12.01.2011 the interim order was further clarified that the Confiscation Proceeding on the basis of the impugned order shall not proceed. That order directed that the State shall remove all defects which could have occurred in the proceeding before the lower court. Under the aforesaid order of this Court, the State has furnished the documents considered relevant for the Confiscation Proceeding. 3. With the consent of the parties, the matter has been taken up for final disposal because from the submissions advanced by the parties, it is evident that the matter has to be remanded back to the proper authority for fresh adjudication either on the basis that defects have already been removed by supply of necessary documents or on the basis that some defects may still have to be removed in order to fully comply with the Provision of Section-13(1) (g) (h) and Rule 14(3) of the Rules framed under the Act. 4. The stand of the Senior Advocate appearing for the appellants is that the application under 3 Section13(2) of the Act did not state the grounds which led to forming of the belief that the accused has committed an offence and other details nor it was accompanied by required affidavits. Learned counsel for the Vigilance strongly refutes the aforesaid submissions. According to him the grounds for the required belief have been mentioned in the application and it is supported by affidavit. So far as compliance with Rule 14 is concerned, according to learned counsel for the Vigilance the necessary particulars and details available with the Vigilance have been furnished but the informations or particulars are not in form-3 as prescribed by Rule 14(3) of the Rules. According to him a defect of the aforesaid nature where necessary particulars have been supplied but not in the prescribed format should not require furnishing the particulars strictly in the formant prescribed unless the Court is satisfied that some prejudice was caused to the accused. 5. Every provision in the Act or Rules cannot be treated to be mandatory and hence submissions advanced by learned counsel for the Vigilance may require consideration in appropriate case. But so far as the 4 present appeal is concerned, admittedly some documents have been furnished during the pendency of this appeal and hence in the facts of the case, the matter is required to be remitted back to the Authorized Officer for deciding the Confiscation Proceeding in accordance with law. 6. At this stage, it must be pointed out that recently a Division Bench of the Court by judgment dated 23rd February 2011 in CWJC No.10455 of 2010 (Sanjay Kumar Vs. State of Bihar & Ors) and other analogous cases has considered the issues relating to vires of the Act. In paragraph-33 of that judgment the Court has held that under the scheme of the Act a Confiscation Proceeding is required to be decided by Authorized Officer whereas the criminal trial for the offence under the Act has to be held by Special Court. The Division Bench has further held that the Legislature has entrusted the task of deciding the Confiscation Proceeding and the trial to two different authorities and it serves a salutary purpose inasmuch as it will obviate likelihood of the bias in the mind of the Court if the same officer was to decide both the proceedings one after 5 another. 7. It goes without saying that the court below as well as authorities of the Vigilance Department shall keep in mind the findings and directions in paragraph-33 of the Division Bench judgment indicated above after the matter is taken up pursuant to this order of remand. 8. Before parting with the order we would like to make certain facts amply clear so that this order may not prejudice either of the parties. In case, the Vigilance Department is of the view that the necessary particulars and further documents are required to be supplied afresh in the particular format or supported by a fresh affidavit, they would be free to do so when the matter is taken up by the court below. It will be equally open to the Vigilance Department to take a stand that the particulars furnished are sufficient and no further documents are relevant or required to be furnished. On the other hand, it will be open to the appellants to take all the possible defence before the Authorized Officer including the defence that the particulars must be supplied in the prescribed format as far as possible and more documents are relevant and ought to have been supplied by the 6 prosecution. It is further made clear that this Court has not gone into the merits of the case of the either of the parties because after remand, the matter has to be decided by the Authorized Officer in accordance with law. 9. In order to avoid delay in the Confiscation Proceeding, while allowing and remitting the matter back to the Authorized Officer parties are directed to appear before him on 23rd of March 2011 and on that date the Authorized Officer shall fix the next date with intimation to the other side and thereafter the proceeding should be conducted expeditiously and in accordance with law without being prejudiced by the earlier order under appeal which is hereby set aside on technicalities without going into merits. 10. Let the lower court records be immediately sent down to the court concerned, i.e. Special Court No.2 (Vigilance) Patna at the cost of the Vigilance. perwez (Shiva Kirti Singh, J.) (Gopal Prasad, J.)