Criminal Appeal (SJ) No.959 of 2011 -------- Against the order dated 27.7.2011 passed by Shri Pandey Anil Kumar, Special Judge II, Vigilance, Bhagalpur in Confiscation Case no. 5 (c.c.) 2010 / c.c. 1/10 -------- Naga Ram, son of Mahadeo Ram, resident of village – Bhitbharwan, Police station – Gopalganj, District - Gopalganj .... .... Appellant Versus The State Of Bihar through the Vigilance .... .... Respondent ---------- For the Appellant : Sarvshri Rana Pratap Singh, Chittaranjan Sinha, Sr. Advocate Shailendra Kr. Singh, Sumant Singh & Rakesh Kumar “RAKA”, Advocates. For the Vigilance : Shri Ramakant Sharma, Sr. Advocate ---------- P R E S E N T HON’BLE SHRI JUSTICE DHARNIDHAR JHA --------- Dharnidhar Jha, J. Heard learned counsel for the parties. 2. The present appeal preferred by appellant Naga Ram, who retired as Regional Deputy Director of Education, Purnea and was also posted at the same place as Deputy Director of Education, against the order passed by the learned Authorized Officer, Special Court II, Vigilance, Bhagalpur in Confiscation Case no. 5 (c.c.) 2010 / c.c. 1/10 dated 27th July, 2011 by which the learned court below directed the movable and immovable properties worth Rs.1,81,77,499/-, said to be acquired by the appellant as public servant, which were disproportionate to his known sources of income and acquired by commission of offence under section 2(e) of Bihar Special Courts Act, 2009 (hereinafter referred to as the Act) to be 2 confiscated to the State of Bihar. 3. I need not go into the factual matrix of the case because the very order suffers from such incurable illegalities that the same has to be struck down. I have elaborately discussed the provisions of the Act in Shiv Shankar Verma & ors. Vs. The State of Bihar through Vigilance & ors.(S.S. Verma for short) 2011(3) PLJR 813. I have clearly pointed out that Chapter 2 of the Act relates to the cognizance and trial of the offence defined and made punishable by the Prevention of Corruption Act which are the offences covered by the word „offence‟ defined by section 2(e) of the Act and the same has to be applied and enjoined by the Special Court to be presided over by a Judge, who is a serving officer belonging to the Bihar Superior judicial Service or is/has been either a Sessions Judge or an Additional Sessions Judge. The provisions of Chapter 3 of the Act relate to confiscation of property and that jurisdiction is vested in the Authorized Officer which authority has been created by section 2(b) of the Act. The procedures for confiscation of property as well as trial of a case have elaborately but separately laid down by the Act and I have considered those provisions and have elaborated upon them in paragraphs 33 onwards of the judgment in S.S. Verma (supra) and it has clearly been pointed out by me as may appear from paragraph 38 of the Report that the two fora have separate judicial identity with varied functions guided by different procedures. One has to try the accusation of commission of the offence as defined by section 2(e) of the Act while the other, i.e., of confiscation of property, arise out of an application filed under section 13 of the Act. 4. If one could peruse S.S. Verma (supra), one may find that giving notice is a must to persons who is said to either have acquired disproportionate property by commission of the offence as also to those persons who are supposed to be holders of the properties either immovable or movable or both on behalf of 3 such public servant. 5. The first flaw, which the order impugned suffers from, is that the properties are said to be standing in the names of the wife, mother and two daughters of the appellant, but they were never impleaded as a party and, as such, no notice under section 14(3) of the Act, which is a mandate of law, was issued to them so as to appear before the Authorized Officer to show cause as to why the properties standing in their names which were said to be acquired by the present appellant by commission of the offence under section 2(e) of the Act be not confiscated. One has not to travel in the ramified area of principles of natural justice, one has simply to look to written provision of section 15 of the Act which directs that a reasonable opportunity of being heard has to be given to the delinquent public servant and to any other person who appears, as per section 14 of the act, having holding the money or any other property on behalf of such public servant. 6. It was contended by Shri Rana Pratap Singh, the learned senior counsel for the appellant by citing before me Cooper V The Board of Works for the Wandsworth District reported in 14 C.B.(N.S.) 180 that even God had not punished Adam without having given him an opportunity of hearing. The learned Judge, who was delivering the views at page 420 of the Report, was observing as under: “………..He says, “The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. „Adam‟ (says God), „Where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?‟ And the same question was put to Eve 4 also.” If, therefore, the board acted judicially, although there are no words in the statute to that effect, it is plain they acted wrongly.” 7. There could not be a better case than the present one in which one could simply apply the observation which was made in Cooper‟s case, which has been extracted by me just now. 8. The learned Judge did not pay his attention to the mandatory provisions of the Act on giving notice to show cause to the person who could be said to have amassed properties in his capacity as public servant by commission of offence as defined by the Act or to any other persons who are supposed to be holding any part of the property amassed by such means by such public servant. Thus, the principle which is enshrined in section 15 of the Act on giving reasonable opportunity of being heard to those persons in whose names the properties were admittedly standing and which were alleged to be acquired by the present appellant through commission of the offence defined under the Act, appears clearly violated. For this reason alone, the order has to be set aside. 9. What further appears from the order is that the learned judge had simply not consulted the provisions of the Act, else he could not have gone on to explain the accusation to the present appellant. The Act, I have just pointed out above, creates two distinct jurisdictions, one for the trial of the offence and the other for adjudication of the proceedings initiated through an application filed under section 13 of the Act. Two different procedures have been laid down by the legislature in the above behalf. If the learned Judge could have taken the trouble of going through S.S. Verma (supra), he could have got fully trained as to how the proceeding under section 13 of the Act has to be carried out for passing an order under section 15 of the Act. This Court has elaborately attempted to discuss the provisions of Chapter 3 as also Chapter 2 of the Act so as not to leave any 5 authority or person who is supposed to handle such matters in any doubt. This court has pointed out that proceeding of confiscation initiated by filing a petition under section 13 of the Act was never a trial. It might be somewhere between investigation or proceeding and it cannot be an enquiry as well. That was the reason that this Court was explaining as to what was the meaning of „prima facie‟ evidence and how such prima facie evidence could be creating „reasons to believe‟. Thereafter, the court went on to explain as to what was the meaning of warrant trial proceeding which was set down in respect of the trial of the offence, which was converse to the rule which was setting down the summary proceeding. Similarly, this Court was explaining Rule 15 of Bihar Special Courts Rules, 2009, which was speaking of application of the provision of the Indian Evidence Act mutatis mutandis to the proceedings of trial and the confiscation proceedings and was holding that if the provisions under section 14(3) of the Act was to be considered, then the rules of evidence were not to be followed and no rebuttal evidence could be allowed to be accepted as the evidence which was required to be presented before the Authorized Officer was simply presumptive in nature raising probability regarding the presence of proposed facts or indictment giving rise to the jurisdiction of the Authorized Officer under sections 13, 14 and 15 of the Act. The learned Authorized Officer who passed the impugned order appears simply not inclined to peruse these provisions and, thus, was adopting the procedure simply unknown to the provision of the Act of 2009 when he was explaining the accusation to the appellant. It hardly requires to be pointed out that a senior officer like the Authorized Officer would know that explaining accusation is part of the trial proceedings set down by the Code of Criminal Procedure for summons cases or for holding an enquiry under Chapter VIII of the Code of Criminal Procedure as may appear from section 116 thereof. Thus, the learned trial judge appears 6 following completely unknown procedure for adjudicating the petition filed before him. 10. When I was perusing the order passed by the learned Authorized Officer, I was searching for the findings as regards the allegation of acquisition of a particular property in the light of statement of defence which the appellant could have filed before him after having received the notice under section 14 of the Act. Whenever a finding has to be recorded under section 15 of the Act, it could be done only when the Authorized Officer had considered the allegation and the replies of the delinquent or any other persons who have been called upon to file their replies in the light of section 14 of the Act and then should have gone on to consider the evidence which could have been produced before him or which could have appeared from the materials produced before him by the parties to the proceedings as to how the allegation of acquisition of assets disproportionate to his known sources, was prima facie appearing substantially acceptable, requiring the same to be confiscated. The findings are recorded in paragraph 5 of the order and if one could peruse the finding, one could find that there is absolutely no discussion of any allegation in the light of the statements of defence of the appellant by considering the evidence which could have been produced either by the state or the delinquent public servant. 11. Reasons have been held to be the heart and soul of a judicial finding. The Supreme Court was highlighting this aspect of a judicial finding in State of Orissa Vs. Dhaniram Luhar (2004) 5 Supreme Court Cases 568. In that case also, the trial court had not appreciated the evidence properly to record the finding by reasons which could have appeared after appreciation of evidence. The Supreme Court was highlighting the requirement of assigning reasons in support of a particular finding in paragraph 8 of the above Report, which I am tempted to 7 quote: “Even in respect of administrative orders Lord Denning, M.R. in Breen v Amalgamated Engg Union observed: “The giving of reasons is one of the fundamentals of good administration.” In Alexander Machinery (Dudley) Ltd. V. Crabtree it was observed: “Failure to give reasons amounts to denial of justice.” “Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.” Reasons substitute subjectively by objectively. The emphasis on recording reasons is that if the decision reveals the “inscrutable face of sphinx”, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking-out. The “inscrutable face of sphinx” is ordinarily incongruous with a judicial or quasi-judicial performance.” 12. I have already pointed out that findings which have been recorded by the Authorized Officer in paragraph 5 onwards are completely devoid of any consideration of the material or information which have been placed before him by the State of Bihar during hearing of the proceeding under section 13 of the Act. The learned judge has not recorded as to what were the reasons in his opinion, to support those findings which were recorded by him so that this court could have judged the findings in the light of the reasons assigned by him. There is no reason as to why the findings appear simply shorn of normal requirement of law which further indicates that the Authorized Officer did not apply his mind properly to the facts and evidence and went on to mechanically pass an order. 13. While I was perusing the brief of the case, which was presented 8 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 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 9 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 detrimental to public interest, which is the central aim to be accomplished by the Act. 14. For the above reasons, I find the order impugned not sustainable in law. It is not only devoid of reasons, it does not indicate that the evidence was duly considered and findings were recorded by assigning reasons. Besides, I have already noted that the procedure which was adopted by the learned court below was unknown to the relevant Act and Rules. The matter has to be re-heard by the learned Authorized Officer, who had passed the impugned order and, as such, the appeal is allowed and the matter is sent back to the learned Authorized Officer, i.e., Special Court II, Vigilance, Bhagalpur for adjudication as per the principles enunciated by this Court in S.S. Verma (supra). 15. I have made certain observations on the deficient filing of affidavit. If the State so desires, it may file fresh affidavit. That opportunity is always available as that does not bear the restriction of law nor does there appear any bar by any provision of law. (Dharnidhar Jha, J.) Patna High Court, The 22nd September, 2011, AFR/Anil/