1 IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.634 of 2011 KAPIL MUNI RAI. S/O LATE KAMESHWAR RAI R/O 268 KRISHI NAGAR, A-G COLONY, P.S. SHASTRI NAGAR, DIST. PATNA ---- PETITIONER Versus 1. THE STATE OF BIHAR. THROUGH ITS PRINCIPAL SECRETARY VIGILANCE DEPARTMENT GOVT. OF BIHAR, PATNA 2. STATE TRANSPORT COMMISSIONER, BIHAR, PATNA --- RESPONDENTS. For the petitioner : Mr. Rajib Kumar Verma, Sr. Advocate. Mr. Rajneesh, Advocate. For the Vigilance : Mr. Ramakant Sharma, Sr. Advocate. ----------- 05 07.04.2011 Present application has been preferred seeking transfer of Vigilance case no. 85 of 2009/C.C.2/10 from the Court of learned Special Judge 2, Vigilance Bhagalpur to the Court of Special Judge, Vigilance, Patna in the light of Government notification dated 26.04.2010 (Annexure-1) on the ground that Special Court at Bhagalpur shall have no jurisdiction over the matter. Facts leading to the application in brief are that petitioner while serving as Enforcement Sub- Inspector in the Department of Transport, Government of Bihar, is alleged to have amassed huge amount of moveable and immoveable property which was/were disproportionate to his known source of income. Accordingly an F.I.R. was instituted by the Vigilance under diverse Sections of the Prevention of Corruption Act 1988 (Annexure-2). The said F.I.R. was lodged on 17.08.2009 with the vigilance police station at Patna. It appears that on the day when the F.I.R. was lodged, the petitioner was serving as the Enforcement Sub-Inspector on deputation at Purnia by reason of 2 departmental notification/order dated 05.06.2009 (Annexure-4). Such deputation was made till further orders. The petitioner joined the said assignment on 07.06.2009. Later on a proceeding was instituted vide case no. C.C.2 of 2010, in the Court of Special Judge 2, Purnia, for confiscation of the property of the petitioner in terms of the Provisions contained in the Bihar Special Courts Act 2009 (for short the „Act‟) which empowers the Court to confiscate ill gotten wealth. On such application having been instituted by the Public Prosecutor, notices dated 28.10.10, and 22.11.10 (Annexure 3 and 3/A) were issued by the Special Court/Authorized officer at Bhagalpur calling upon the petitioner to show cause as to why all or any of such money/property should not be declared to have been acquired by means of commission of offence and thus confiscated by the State. Petitioner has impugned the aforesaid two notices on the ground that the Special Court at Purnia constituted under the Act has no jurisdiction to deal with the case/proceeding. Reliance in this regard has been placed on Section 4(2) of the Prevention of Corruption Act, 1988 (for short the P.C. Act). Relevant part of Section 4 of the P.C. Act read as under:- “4. Cases triable by special Judges- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, the offences specified in sub- section (1) of section 3 shall be tried by special Judges only. (2) Every offence specified in sub- section (1) of section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special Judge appointed for the case, or, 3 where there are more special Judges than one for such area, by such one of them as may be specified in this behalf by the central Government. (3)……… (4)……..” It is next contended that in exercise of powers conferred by Section 24 of the Act, the Government of Bihar have already framed rules called The Bihar Special Courts Rules 2010 ( for short the „Rules‟) Rule 3(2) sets out jurisdiction of the Court which reads as under:- “3(2) Jurisdiction of a Court under the Act shall be such as may be decided by the State Government from time to time.” It is submitted that in terms of the provision contained under the Act and the Rules the State Government have already issued a notification in consultation with the High Court creating six Courts in the State of Bihar by notification dated 26.04.2010 (Annexure-1). It appears therefrom that on three places special Courts have been created in the State of Bihar with their specified territorial jurisdiction. At each place two special Courts have been created. Special Court created at Bhagalpur have been assigned jurisdiction over the entire Purnia Division and part of Koshi Division. Similarly, two Courts at Patna have been created with jurisdiction, each over Patna Division and Magadh Division. It is submitted on behalf of the petitioner that the posting of the petitioner was at Patna when the case was lodged. Only few months prior thereto he was deputed at Purnia. As per the application filed by the Public Prosecutor 4 (Annexure 3/A), petitioner being public servant had acquired assets disproportionate to his known source of income at Patna and in adjoining areas. The search/raid was conducted at Patna. Referring to Annexure-5 to the supplementary affidavit, it is submitted that till the date of institution of F.I.R. and the present proceeding for confiscation, the last pay certificates were being issued from Patna. It is, thus, the contention that merely because on the day when the F.I.R. was lodged he was deputed at Purnia will not confer jurisdiction to the Special Court at Bhagalpur who had to exercise jurisdiction over the Districts falling within Purnia and Koshi Division(s). Learned counsel for the petitioner, in support of his contention, has placed reliance on judgment of the Supreme Court reported in AIR 2001 SC 4014 = 2001(9) SCC 432 ( CBI, AHD, Patna vr. Braj Bhusan Prasad & Ors.). Learned counsel for the Vigilance, on the other hand, submits that the petitioner being a Government servant accumulated properties disproportionate to the known source of his income. It is the petitioner/delinquent who has to be proceeded against and not the property. At the time of lodging of F.I.R., he was deputed at Purnia which also contributed in accumulation of ill gotten wealth. At least part of the cause of action has arisen within the jurisdiction of Special Court created at Bhagalpur having jurisdiction over specified Districts including Purnia. It is next submitted that the convenience of the parties/litigants in such matter has no relevance for considering 5 transfer of case. It is next contended that if petitioner is raising an issue with regard to the jurisdiction of the Special Court at Purnia then he may first approach the said Court raising the said issue which shall be considered and decided as a preliminary issue. Reliance in this regard has been placed on the case of Neha Arjun Jugadar & Anr. Vs. Kumari Palak Diwan ji since reported in 2011(2) Supreme 66. Mr. Verma, learned counsel appearing in support of the application submits that he is not raising any issue based on convenience of the parties or of the petitioner. According to him, in terms of the provision contained in Section 4(2) of the P.C. Act and the relevant provisions of the Bihar Special Court Act and the Rules framed thereunder, the Special Court at Purnia, in the facts and circumstances of the case, shall have no jurisdiction to try the case. This Court proposes to deal with the objection raised on behalf of the Vigilance that if any such issue is to be raised by the accused/delinquent then the same is required to be raised first before the Court where the matter is pending and get the same adjudicated as the preliminary issue. In Neha Arjun Jugadar (supra) an application was filed before the Supreme Court for transfer of claim case pending in the Court of District Judge Gautam Budh Nagar U.P. to the Court of cognate jurisdiction at Pune. Such claim was raised on the ground that Gautam Budh Nagar U. P. shall have no jurisdiction in the matter. Having considered the 6 submissions, the Hon‟ble Supreme Court in para 4 of the report held that in a case where a party alleges that the Court where the case is pending has no jurisdiction, he should apply to that Court for dismissing it on this ground. There is no question of transfer of such a case. In the case at hand, it is the contention of the petitioner that the Special Court at Purnia shall have no territorial jurisdiction to try the case. It, thus, appears that in view of ratio laid down in Neha Arjun Jugadar (supra), the petitioner is first required to submit to the jurisdiction of the Court at Bhagalpur in response to the notice contained in Annexure-3 series, and raise an issue of jurisdiction and pray for dismissal of the case/proceeding pending before it on the ground that there is no jurisdiction in the Court to try the case. The said Court is, thereafter, required to decide the said application as preliminary issue/ground before proceeding to hear the case on merit. This Court at this stage may only notice for the benefit of the parties and the Court where the issue is now to be raised that while dealing with the constitutionality/validity of the Act, a Division Bench of this Court in the case of Sanjay Kumar & Ors. Vs. The State of Bihar (2011(1)PLJR) 1168 held as under in para 33:- “33. So far as likelihood of bias is concerned, it is true that generally a trained judicial mind of a person holding post of Sessions Judge/Additional Sessions Judge is not expected to suffer from prejudice on account of hearing of confiscation matter as well as conducting the trial of an accused under the Act. But requirement of fairness 7 which flows from Article 14 of the Constitution has clearly guided the Legislature in entrusting the confiscation proceeding to an Authorized Officer whereas the trial has been entrusted to the Special Court. Both the terms i.e. “ Authorized Officer” and “ Special Court” have been separately defined and this appears to have a distinct purpose to ensure that confiscation proceeding is not entrusted to the special Court which is only to conduct the trial. Hence, the State government and the High Court are expected to keep this distinction in mind and make sure that confiscation proceeding and criminal trial against accused of an offence are not conducted by the same judicial officer. This alone can take care of likelihood of bias in the mind of the Special Court. Otherwise, a Presiding Judge who has already formed an opinion on the merits of the allegations regarding disproportionate assets in course of a confiscation proceeding may not remain unbiased against the same delinquent in course of criminal trial.” Furthermore, relevant consideration in this regard would be that Section 4(2) of the P.C. Act deals with the consideration of the case where offence punishable under the said Act has been committed. The Bihar Special Court Act 2009 has provided under Section 13 thereof for confiscation of ill gotten wealth. It is established law that confiscation of such ill gotten wealth is not a punishment. Thus, agreeing with the submission made on behalf of the Vigilance, this Court declines to grant the relief prayed for in the application. The petitioner would be at liberty to raise the said issue before the Court in pursuance of notice contained in Annexure- 3 series, which shall be considered as preliminary issue and decided by the Court in accordance with law. This 8 Court refrains from considering the other submissions made on behalf of the petitioner based on pleadings on record as the same may prejudice the parties in consideration of the matter by the Court below relating to jurisdiction of the Special Court at Bhagalpur in proceeding with the case relating to confiscation of the property /assets alleged to be disproportionate to the known source of income and thus ill gotten. The application stands disposed of. Sym ( Kishore K. Mandal, J.)