YOGENDRA KUMAR JAISWAL ETC. versus STATE OF BIHAR & ORS.
[2015] 14 S.C.R. 1037, Supreme Court of India, 2015
Outcome: Disposed off
Segment: Ratio
[2015] 14 S.C.R. 1037 
YOGENDRA KUMAR JAISWAL ETC. 
v. 
STATE OF BIHAR & ORS. 
(Civil Appeal Nos. 6448-6452 of 2011) 
DECEMBER 10, 2015 
[ANIL R. DAVE AND DIPAK MISRA, JJ.] 
A 
B 
Orissa Special Courts Act, 2006 - Constitutionality of-
Accumulation of extensive properties disproportionate to the 
known sources of income by persons who had held or are C 
holding high political and public offices - Special Courts 
under the Act for speedy trial for certain class of offences 
and for confiscation of properties - Held: The Orissa Special 
Courts Act is not hit by Art. 199 of the Constitution -
Constitution of/ndia-Art.199. 
D 
Orissa Special Courts Act, 2006 - Special Courts 
under - Establishment of - Held: The establishment of 
Special Courts under the Orissa Special Courts Act is not 
violative of Art. 247 of the Constitution- Constitution of India-
E 
Art. 247. 
Bihar Special Courts Act, 2009 - Special Courts 
under - Establishment of - Held: The establishment of 
Special Courts under the Bihar Special Courts Act is not 
violative of Art. 247 of the Constitution- Constitution of India -
F 
Art. 247. 
Orissa Special Courts Act, 2006 - ss. 5 and 6 -
Provisions pertaining to declaration and effect thereof- Held: 
The provisions pertaining to declaration and effect of 
declaration as contained in ss.5 and 6 of the Orissa Special G 
Courts Act, and the Bihar Special Courts Act, are 
constitutionally valid as they do not suffer from any 
unreasonableness or vagueness- Bihar
Special Courts Act, 
2009. 
H 
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[2015] 14 S.C.R. 
A 
Orissa Special Courts Act, 2006 -
Chapter Ill -
Confiscation ofproperty or money or both- Held: Chapter 111 · 
of the both the Acts, namely, Orissa Special Courts Act and 
Bihar Special Courts Act, 2009, providing for confiscation of 
property or money or both neither violates Article 14 nor 
B Article 20(1) nor Article 21 of the Constitution - Constitution 
of India -Arts. 14, 20(1) and 21. 
Bihar Special Courts Act, 2009 -
Chapter Ill -
Confiscation of property or money or both - Held: Chapter Ill 
of the both the Acts, namely, Orissa Special Courts Act, 2006 
C and Bihar Special Courts Act, providing for confiscation of 
property or money or both neither violates Article 14 nor 
Article 20( 1) nor Article 21 of the Constitution - Constitution 
of India-Arts. 14, 20(1) and 21. 
0 
Orissa Special Courts Act, 2006 -
Procedure for 
confiscation and proceedings before the Authorised Officer 
- Held: The procedure provided for confiscation and the 
proceedings before the Authorised Officer do not cause any 
discomfort either to Article 14 or to Article 20(3) of the 
E Constitution - Bihar Special Courts Act, 2009 - Constitution 
oflndia-Arts. 14 and 20(3). 
Orissa Special Courts Act, 2006 - Provision relating to 
appeal - Held: The provision relating to appeal in the Act is 
treated as constitutional on the basis of reasoning that the 
F power subsists with the High Court to extend the order of stay 
on being satisfied. 
Bihar
Special Courts Act, 2009 - Provision relating to 
appeal - Held: The provision relating to appeal in the Act is 
treated as constitutional on the basis of reasoning that the 
G power subsists with the High Court to extend the order of stay 
on being satisfied. 
H 
Orissa Special Courts Act, 2006 - s.18(1), proviso -
Held: The proviso to s.18(1) of the Orissa Special Courts Act
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1039 
does not fall foul of Art.21 of the Constitution - Constitution 
A 
oflndia -Art. 21. 
Orissa Special Courts Act, 2006 - s.19 - Held: The 
provisions contained in s. 19 pertaining to refund of 
confiscated money or property does not suffer from any kind 
of unconstitutionality. 
B 
Bihar Special Courts Rules, 2010 - r.12(a) and (f) -
Held: Sub-rules (a) and (f) of r.12 of the BiharSpecial Court 
Rules being violative of the language employed in the Bihar 
Special Courts Act are ultra vires-Anything contained therein c 
pertaining to the summary procedure is also declared as ultra 
vires the Bihar Special Courts·Act - Bihar Special Courts 
Act, 2009. 
Disposing of the appeals, the Court 
HELD:1. Corruption, a 'noun' when assumes all the D 
characteristics of a 'verb', becomes self-infective and 
also develops resistance to antibiotics. In such a 
situation the disguised protagonist never puts a 
Hamletian question - "to be or not to be" - but marches E 
ahead with perverted proclivity - sans concern, sans 
care for collective interest, and irrefragably without 
conscience. In a way, corruption becomes a national 
economic terror. This social calamity warrants a different 
control and hence, the legislature comes up with special 
legislation with stringent provisions. [Para 1][1056-B-D] F 
2. The provisions in both the Acts, namely, Orissa 
Special Courts Act, 2006 and Bihar Special Courts Act, 
2009, are almost similar. The
State legislature in the State 
of Orissa keeping in view the accumulation of extensive G 
properties disproportionate to the known sources of 
income by persons who had held or are holding high 
political and public offices, thought it appropriate to 
provide special courts for speedy trial for certain class 
H
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SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
A of offences and for confiscation of properties involved; 
and accordingly, enacted the Orissa Act which was 
passed by the Orissa Legislative Assembly that got the 
assent of the President of India. [Para 5] [1057-D-G] 
3.1. The Orissa Special Courts Act, 2006 which 
8 
specifically deals with offences under Section 13(1)(e) 
of the Prevention of Corruption Act, 1988 and provides 
for Special Courts for the trial of the said offences has 
got the assent of the President. It is to be understood 
that under the Prevention of Corruption Act, 1988, the 
C State had the authority to appoint special Judges in 
respect of all the offences. Presently, one part of the 
offence has been carved out and after obtaining assent 
Special Courts have been established. In view of the fact 
situation, it does not violate Article 247 of the 
D Constitution. That apart, the language employed in Article 
247 does not take away the jurisdiction of the State 
legislature for constitution of courts. [Para 43] [1090-G-
H; 1091-A-B] 
E 
3.2. The purpose of Article 247, which commences 
with a non-obstante clause, is to confer power on the 
Parliament to create additional courts for the better 
administration of a particular Union law, but it cannot be 
said that the State cannot make laws for adjudication 
F and administration ofjustice in respect of a parliamentary 
legislation more so, when initially power was conferred 
under Section 3 of the 1988
Act and assent has been 
accorded for establishment of Special Courts for 
adjudication of the offence. Section 3 of the 1988 Act 
G empowers the State Government to constitute special 
courts and when a category of offence has been 
segregated and for the said purpose the Orissa Act has 
been enacted and assent has been taken, the power to 
constitute special courts cannot be found to be 
H fallacious. [Paras 45 and 48] [1094-B-C; 1093-A-B]
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1041 
4. The issue in the instant case is that the State. A 
Government had no"t complied with the requisite 
procedure for obtaining the as!;ent of the President. The 
criticism advanced by the appellants is that in the letter 
written by the State Government to the competent 
authority for obtaining assent only certain provisions of B 
the Orissa Act were mentioned but there is no reference 
to other provisions and certain other legislations, which 
also·cover the same field. However, on a perusal of the 
aforesaid letter, it is demonstrable that the State 
Government had sought assent of the President in · C 
respect of certain provisions of the 1988 Act, the Code 
of Criminal Procedure, 1973 and the Criminal Law 
Amendment Ordinance, 1944. On a perusal of the 
communication and the .finding recorded by the High 
Court and keeping in view the purpose of D 
communication and taking note of the fact that the entire 
Bill was sent to the President for obtaining assent, it can 
safely be concluded that the President was apprised of 
the reason when the assent was sought. The assent has 
been given in general terms so as to be effective for alt E 
purposes. It cannot be said that the general assent by 
the President was not obtained. Thus, the provisions of 
the Orissa Act are definitely not repugnant to the 1988 
Act, the Code of Criminal Procedure, 1973 and the 
Criminal Law Amendment Ordinance, 1944. [Paras 59 and F 
66]
[1100-E-F; 1108-G; 1109-B·D] 
5.1. It was argued that that the persons holding 
"high public or political office" are being put in a different 
class to face a trial in a different court under a different 
procedure facing different consequences, which is G 
arbitrary and further the provision suffers from serious 
vagueness. However, the submission of the appellants 
that the words "high public or political office" not being 
defined, creates a dent in the provision, cannot be 
A
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SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
A .accepted. The said words convey a category of public 
servants which is well understood and there is no room 
for arbitrariness. [Paras 99, 110] [1129-0; 1137-G] 
5.2. The holders of high post or high public office 
do definitely enjoy a distinguished position in contrast 
8 to other categories of officers or post holders. They form 
a separate class. The legislature, regard being had to 
the position the public servant holds, has put them in a 
different class. There is a manifest reason that sustains 
the said classification. The court cannot adopt an attitude 
C to scrutinize a provision with mathematical exactitude. 
A pedantic approach in this regard cannot be visualized. 
[Para 114) [1141-E, G] 
6.1. With regard to the classification made by the 
D legislature in respect of the accused persons facing trial 
under .Section 13(a) to (d) and the a.ccused persons 
under Section 13(1 )(e), it is urged by the appellants that 
there is no intelligible differentia for making such·a 
classification qua the offence and moreover by adopting 
E a rigorous procedure. However, the legislative policy 
behind establishment of Special Courts for trial of 
accused involved in the offence under Section 13(1)(e) 
of the 1988 Act in respect of certain categories of accused 
is absolutely impeccable and it is saved from the vice of 
F Article 14 of the Constitution. The offences under Section 
13(1) (a) to (d) in a broad way can be called
incident 
specific or situation specific whereas the offence under 
Section 13(1)(e) is period specific and it is not incident 
specific. There can be different check periods. [Paras 
G 111, 114 and 123) [1137-H; 1149-E; 1141-C] 
6.2. There is a difference, a demonstrable one, 
between the offence under Section 13(1)(e) of the 
Prevention of Corruption Act, 1988 and the rest of the 
offences enumerated in Section 13. Section 13(1)(e)
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1043 
targets the persons who have disproportionate assets A 
to their known sources of income. This conceptually is 
a period offence, for it is not incident specific as such. It 
does not require proof of corruption in specific acts, but 
has reference to assets accumulated and known sources 
of income in a particular period. The test applicable and B 
proof required is different. That apart, in the context of 
the present Orissa Act it is associated with high public 
office or with political office which are occupied by 
people who control the essential dynamics of power 
which can be a useful weapon to amass wealth adopting C 
illegal means. In such a situation, the argument that they . 
being put in a different class and tried in a separate 
special court solely because the alleged offence, if 
nothing else, is self-defeating one. The submission that 
there is a sub-classification does not remotely touch the D 
boundaries of Article 14; and certainly does not encroach 1 
thereon to invite its wrath of the equality clause. [Para 
120] [1147-D-G] 
6.3. The controversy can be looked from another 
angle. The special courts have been established on the E 
basis of the law enacted by the State Legislature after 
obtaining the presidential assent. The legislature has 
spelt out a policy for the purpose of establishing the 
Special Courts. It relates to an.offence of special kind. 
The legislative policy behind establishment of
Special F 
Courts for trial of accused involved in the offence under 
Section 13(1){e) of the 1988 Act in respect of certain 
categories of accused is absolutely impeccable and it is 
saved from the vice of Article 14 of the Constitution. 
[Paras 121, 123] [1147-H; 1149-E] 
G 
7. The next submission advanced by the appellants 
pertains to the issue that the corruption is an all India 
phenomenon and persons in other States are 
prosecuted under the 1988 Act, whereas in the State of H
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SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
A Odisha, they are tried in a more rigorous manner. It is 
submitted that the same brings in inequality which 
causes discomfort to Article 14 of the Constitution. 
However, Article 14 comes into play where equals are 
treated as unequals. The persons holding high public 
B or political office in the State of Odis ha are· governed by 
the Orissa Act. The State legislature has passed the 
Orissa Act having regard to the obtaining situation in the 
State as the objects and reasons of the said Act do reflect. 
The legislature in its wisdom has enacted the law. The 
C persons who are functioning in certain other States may 
be required to face trial under the 1988 Act, but on that 
score there can be no violation of Article 14 of the 
Constitution. The scale suggested, cannot be the scale 
to judge. A legislation passed by one State legislature 
D cannot be equated with the legislation passed by another 
State legislature. Nor can its validity be tested on that 
foundation. [Para 124] [1149-F-H; 1150-A·D] 
8.1. Further, challenge was made relating to the 
grievance which is fundamentally twin in nature. First, 
E the appellants who were facing the trial before the Special 
Judge under the 1988 Act, their cases being transferred, 
are being compelled to be tried under the Orissa Act as 
a consequence of which they are constrained to face 
rigourism of confiscati.on as an interim punishment 
F which was not in existence and second,
the provisions 
pertaining to confiscation cause double jeopardy. It is 
urged that the provisions violate Article 14, 20(2) and 21 
of the Constitution. Sections 13, 14, 15 and 16 of the 
OrissaAct occur in Chapter Ill oftheOrissaActthatdeals 
G with confiscation of property. In the case at hand, the 
entire proceeding is meant to arrive at the conclusion 
whether on the basis of the application preferred by the 
Public Prosecutor and the material brought on record, 
the whole or any other money or some of the property in 
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1045 
question have been acquired illegally and further any A 
money or property or both have been acquired by the 
means of the offence. After arriving at the said 
conclusion, the· order of confiscation is passed. The 
order of confiscation is subject to appeal under Section 
17 of the Orissa Act. That apart, it is provided under B 
Section 19 where an order of confiscation made under 
·. Section 15 is modified or annulled by the High Court in 
appeal or the where the person affected is acquitted by 
the special court, the money or property or both shall be 
returned to the person affected. Thus, it is basically a C 
confiscation which is interim in nature. Therefore, itis 
not a punishment as envisaged in law and -hence, it is 
difficult to accept the submission that it is a pre-trial 
punishment. Confiscation is not a punishment and, 
therefore, Article 20(1) is not attracted. What is prohibited D 
under Article 20(1) is imposition of greater punishment 
that might have been imposed and prohibition of a 
conviction of any person for violation of law at the time 
of commission of the act. Confiscation being not a 
· punishment does not come in either of the categories. E 
Thus viewed, the property of an accused facing trial 
under the 1988 Act could be attached and there can be 
administration by third party of the said property and 
eventual forfeiture after conviction. [Paras 126, 137, 138 
and 142] [1151-C-E; 1168-G-H;
1169-A-B, E; 1173-F-G] 
F 
8.2. The legislature has thought it proper to change 
the nature and character of the interim measure. The 
property obtained by ill-gotten gains, if prima faciefound 
to be such by the authorised officer, is to be confiscated. 
An accused has no vested right as regards the interim G 
measure. He is not protected by any constitutional right 
to advance the plea that he cannot be made liable to face 
confiscation proceedings of the property which has 
been accumulated by illegal means. That being the litmus 
H
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SUPREME COURT REPORTS 
[2015] 14S.C.R. 
A test, the filament of reasoning has to rest in favour of 
confiscation and not against it. Therefore, the provision 
does not violate any constitutional assurance. In view 
of the scheme of the Orissa Act, there can be no shadow 
of doubt that there is ample guidance in the procedure 
B for confiscation. It is not a proceeding where on the basis 
of launching of prosecution, the properties are 
confiscated. Therefore, the proceedings relating to 
confiscation cannot be regarded as violative of article 
14 because conferment of unchecked power or lack of 
C guidance. [Paras 143, 144) [1174-C-E; 1175-D] 
8.3.As the scheme of the Orissa Special Courts Act, 
2006 would show, the confiscation is interim in nature. It 
does not assume the character of finality. Same is the 
position in Bihar Special Courts Act, 2009. The accused 
D is entitled to get return ofthe property or money in case 
he succeeds in appeal before the High Court against the 
order passed by the authorized officer or in the ultimate 
eventuality when the order of acquittal is recorded. [Para 
145] [1175-G-H; 1176-A] 
E 
9. The Authorised Officer is a judicial officer and he 
is required to deal with material for the limited purpose 
of confiscation. That apart, there is a statutory protection 
that the material produced before the Authorised Officer 
F shall not be used during trial. It is graphically clear that 
the materials produced before the authorised
officer are 
not to be looked into during trial, and the trial is to proceed 
in accordance with the Code of Criminal Procedure and 
subject to the provisions of the 1988 act as long as there 
G is no inconsistency. The trial Judge is a senior judicial 
officer and has a trained judicial mind. If something is 
not to be looked into, it shall by no means be looked 
into. The constitutional protection under Article 20(3) is 
in no way affected. [Para 151] [1175-E·G] 
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 104 7 
10. Under the scheme of the Orissa Act, the A 
confiscation does not take place immediately on lodging 
. of an FIR. The property is confiscated by way of an interim 
measure by taking recourse to law which has been held 
.to be constitutionally valid. A person cannot be allowed 
to indulge in corruption and conceive of protection to B 
his dwelling house after a finding is recorded in the 
proceeding for confiscation that it is constructed or 
purchased by way of corrupt means. The person 
concerned can satisfy the authorised officer or in appeal 
thatth.e dwelling house where he is residing is acquired C 
from his known sources of income. [Para 155] [1183-F-
H; 1184-A, C] 
11. It is to be remembered that the proceeding is. 
initiated for confiscation in respect of the property 
acquired by the offence as described under the Act. It is D 
done on the basis of certain material brought on record. 
Ultimately the proceedings may not be successful but if 
it is not possible to return the property the State cannot 
be asked to compensate more than what the legislature 
has thought to be appropriate. It cannot be equated with E 
acquisition. The entire proceeding is initiated regard 
being had to the rampant corruption at high places in 
the present day society. Therefore, the submissio~ that . · 
there has to be adequate compensation would be 
against the larger public interest. Thus understood, the F 
challenge to the
provision on the backdrop of Article 
300Ahas to be treated as unacceptable. [Para 158] [1187-
B-E] 
12. Both the Orissa Special Courts Act, 2006 and G 
the Bihar Special Courts Act, 2009 are almost similar and, 
the analysis made by this Court as regards the Orissa 
·Special Courts Act, 2006 will apply to the Bihar Special 
Courts Act, 2009. [Para 159] [1187-F] 
H
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SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
A 
13. However, Rule 12 of the Bihar Special Court 
Rules, 2010 provides for Special Courts to follow 
summary procedure. When the Bihar Act provides to 
follow the warrant procedure prescribed by the Code for 
trial of cases before a Magistrate, the 2010 Rules could 
B not have prescribed for summary procedure. The rules 
have to be in accord with the Act. The rules can 
supplement the provisions of the Act but decidedly they 
cannot supplant the same. Therefore, part of Rule 12 
which lays down that the Special Judge shall follow 
C summary procedure, is ultra vires the Bihar Special 
Courts Act, 2009. [Paras 160, 161] [1187-H; 1188-D-E] 
Special Reference No. 1of 1964 AIR 1965 SC 
745: 1965 SCR 413-distinguished. 
D 
Mohd. Saeed Siddiqui v. State of Uttar Pradesh 
and another (2014) 11 sec 415 - held, 
applicable. 
Kishore Chandra Patel v. State of Orissa, 1993 
(76) CLT 720; Delhi Administration v. II. C. Shukla 
E 
(1980) Supp. sec 249 : 1980 SCR 500; 
S. Satyapal Reddyv. Govt. of A.P & Ors. (1994)4 
SCC 391; M.P Shikshak Congress & Ors. v. R.PF. 
Commissioner, Jabalpur & Ors. (1999) 1 SCC 
396: 1998 (3) Suppl. SCR 198; P Venugopal v. 
F 
Union of India (2008) 5 SCC 1 : 2008 (8) 
SCR 1; M. Karunanidhi v. Union of India AIR 
(1979) SC 898 : 1979 (3) SCR 254; Hoechst 
Pharmaceuticals v. State of Bihar AIR (1983) SC 
1019 : 1983 (3) SCR 130; State of Punjab v. 
G 
Satyapal AIR (1969) SC 903 : 1969 SCR 478; 
Burrakur Coal Co.
Ltd v. Union oflndia AIR (1961) 
SC 954: 1962 SCR 44; Mano} Narula v. Union of 
India (2014) 9 sec 1 : 2014 (9) scR 965; 
Niranjan Hemchandra Sashittal v. State of 
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1049 
Maharashtra (2013) 4 SCC 642 : 2013 (4) 
A 
SCR 767; Subramanian Swamy v. CBI (2014) 8 
SCC 682: 2014 (6) SCR 873; Raja Ram Pal v. 
Hon'ble Speaker, Lok Sabha and Others (2007) 3 
SCC 184 : 2007 (1) SCR 317; Madras Bar 
Association v. Union of India and another (2014) 
B 
10 SCC 1; 0. N. Mohindroo v. The Bar Council of 
Delhi & Ors. AIR 1968 SC 888: 1968 SCR 709; 
Jamshed N. Guzdar v. State of Maharashtra 
(2005) 2 SCC 591 : 2005 (1) SCR 223; the Special 
Courts Bill, 1978 (1979) 1 SCC 380 : 1979 (2) 
C 
SCR 476; Hoechst Pharmaceuticals Ltd. & 
Anotherv. State of Biharand Others 1983 (4) SCC 
45 : 1983 (3) SCR 130; Deep Chand v. The State 
of Uttar Pradesh & Ors. (1959) Supp. 2 SCR 822; 
Ch. Tika Ramji & Ors. v. The State of Uttar Pradesh 
D 
& Ors. (1956) SCR 393; Engineering Kamgar 
Union v. Electro Steels Castings Ltd. and Another 
(2004) 6 sec 36: 2004 (1) Suppl. SCR 301; M.P. 
AIT Permit Owners Association and Another v. 
State of M.P. (2004) 1 SCC 320: 2003 (6) Suppl. 
E 
SCR 331; Govt. of A.P. and Another v. J. B. 
Educational Society and Another (2005) 3 SCC 
212 : 2005 (2) SCR 302; Dharappa v. Bijapur 
Coop. Milk Producers Societies Union Ltd. (2007) 
9 SCC 109: 2007 (5) SCR 729; Sitaram & Bros. 
F 
v. State of Rajasthan 1995 (1) SCC 257: 1994 
(4) Suppl. SCR 278; EID Parry(/) Ltd. v. G Omkar 
Murthy and Others (2001) 4 SCC 68 : 2001 (2) 
SCR 807; Saurashtra Oil Mills Assn. v. State of 
Gujarat (2002) 3 SCC 202:.
2002 (1) SCR 1099; 
G 
/magic Creative (P) Ltd. v. CCT (2008) 2 SCC 
614: 2008 (1) SCR 457; Hindustan Times v. State 
of U.P. (2003) 1 sec 591 : 2002 (4) Suppl. SCR 
27; Kaiser-I-Hind (P) Ltd. v. National Textile 
H
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SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
A 
Corpn. (Maharashtra North) Ltd. (2002) 8 SCC 
182: 2002 (2) Suppl. SCR 555; P.N. Krishna Lal 
v. Govt. of Kera/a 1995 Supp. (2) SCC 187: 1994 
(5) Suppl. SCR 526; Gram Panchayat, Jamalpur 
v.Malwinder Singh (1985) 3 SCC 661; Rajiv Sarin 
B 
and Another v. State of Uttarakhand and Others 
(2011) 8 SCC 708; Supreme CourtAdvocates-on-
Record Association arid Another v. Union 
of India 2015 (11) SCALE 1; Sanjeev Coke 
Manufacturing Company v. Mis Bharat Coking 
C 
Coal Limited andAnother19831SCC147: 1983 
(1) SCR 1000; Reserve Bank oflndia v. Peerless 
General Finance and Investment Co. Ltd. AIR 
1987 SC 1023: 1987 (2) SCR 1; Union of India 
v. Filip Tiago De Gama of Vedem Vasco De 
D 
Gama 1990 AIR 981 : 1989 (2) Suppl. SCR 336; 
R.L. Arora v. State of Uttar Pradesh and Others 
AIR 1964 SC 1230 : 1964 SCR 784; TATA 
Engineering & Locomotive Co. Ltd. v. State of 
Bihar and Another (2000) 5 SCC 346 : 2000 (3) 
E 
SCR 219; Union of India v. Sankalchand Himatlal 
Sheth (1977) 4 sec 193 : 1978 (1) scR 423; 
Maharaj Singh v. State of.UP. (1977) 1 SCC 155 : 
1977 (1) SCR 1072; Shreya Singhal v. Union of 
India (2015) 5 sec 1 : 2015 (5) SCR 963; OTC v. 
F 
Mazdoor Congress 1991 Supp (1) SCC 600 : 
1990 (1) Suppl. SCR 142; Suresh Kumar 
Koushalv. Naz Foundation (2014) 1SCC1 : 2013 
(17) SCR 116; Calcutta Gujarati Education 
Society v. Calcutta Municipal Corporation (2003) 
G 
10 SCC 533 : 2003 (i) Suppl. SCR 915; Hotel 
Balaji and Others
v. State of A.P. and Others 1993 
Supp (4) sec 536: 1992 (2) Suppl. SCR 182; 
J. K. Steel Ltd. v. Unionof/ndiaAIR 1970SC1173: 
1969 SCR 481; P. Na/lama/ v. Inspector of Police 
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR · 1051 
(1999) 6 sec 559 : 1999 (1) Suppl. SCR 135; 
A 
Ram Krishna Dalmia v. Shri Justice S.R. 
Tendolkar and others AIR 1958 SC 538 : 1959 
SCR 279; Satyawati Sharma (Dead) by LRs. v. 
Union of India and Another (2008) 5 SCC 287 : 
2008 (6) SCR 566; Rehman Shagoo v. State of 
B 
Jammuand Kashmir AIR 1960SC1: 1960 SCR 
680; C. I. Emden v. State of Uttar Pradesh AIR 1960 
SC 548: 1960 SCR 592; Kedar Nath Bajoria v. 
The State of West Bengal (1954) SCR 30; State 
of West Bengal v. Anwar Ali Sarkar (1952) SCR 
C 
284; Kathi Raning Rawat v. The State of 
Saurashtra (1952) SCR 435; J. Jaya Lalitha v. 
Union of India (1999) 5SCC138: 1999 (3) SCR 
653; Jyoti Pershad v. Administrator for the Union 
Territory of Delhi AIR 1961 SC 1602 : 1962 SCR 
D 
125; The State of Madhya Pradesh v. G.C. 
Mandawar AIR 1954 SC 493 : 1955 SCR 158; 
Prabhakaran Nairv. State of Tamil Nadu & Others 
AIR 1987 SC 2117 : 1988 (1) SCR 1; Maqbool 
Hussain v. State of Bombay AIR 1953 SC 325: 
E 
1953 SCR 730; State of West Bengal v. S.K. 
Ghosh 1963 (2) SCR 111; Divisional Forest 
Officer and another v. G. II. Sudhakar Rao and 
. others (1985) 4 SCC 573: 1985 (3) Suppl. SCR 
680; Director of Enforcement v. M.C. T.M. 
F 
Corporation Pvt. Ltd and Others (1996) 2 SCC 
471 : 1996 (1) SCR 215; Biswanath Bhattacharya 
v. Union oflndia & others(2014) 4 SCC 392: 2014 
(1) SCR 885; State of Andhra Pradesh and Others 
v. CH Gandhi (2013) 5 sec 111 : 2013 (2) 
G 
SCR 20;
Pyare Lal Sharma v. Managing Director 
and others. (1989) 3 SCC 448 : 1989 (3) SCR 
428; K. Satwant Singhv. State of Punjab AIR 1960 
SC 266 : 1960 SCR 89; Maya Rani Punj v. CIT 
H

1052 
SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
A 
(1969) 1 SCC 445; Tiwari Kanhaiyalal v. CIT 
(1975) 4 SCC 101 : 1975 (3) SCR 927; Kera/a 
State Financial Enterprises Ltd. v. Official 
Liquidator, High Court of Kera/a (2006) 10 SCC 
709 : 2006 (6) Suppl. SCR 855; State of Himacha/ 
B 
Pradesh v. Tarsem Singhand others AIR 2001 SC 
3431 : 2001 (2) Suppl. seR 545; Sulochana 
Chandrakant Galande v. Pune Municipal 
Transport and others (2010) 8 sec 467 : 2010 
(9) SCR 476; Dayal Singh v. State of Uttarancha/ 
c 
(2012) 8 SCC 263 : 2012 (1 O) SCR 157; Rattiram 
v. State of M.P. (2012) 4 SCC 516 : 2012 (3) 
SCR 496; M.P. Sharma v. Satish Chandra AIR 
1954 SC 300: 1954 SCR 1077 - referred to. 
Case Law Reference 
D 
1993 (76) CLT 720 
referred to 
Para 14 
1980 SCR 500 
referred to 
Para 14 
(1994) 4 sec 391 
referred to 
Para 14 
E 1998 (3) Suppl. SCR 198 referred to 
Para 14 
2008 (8) SCR 1 
referred to 
Para 14 
1979 (3) SCR 254 
referred to 
Para 14 
1983 (3) SeR 130 
referred to 
Para 14 
F 
1969 SCR 478 
referred to 
Para 14 
1962 SCR 44 
referred to 
Para 14 
2014 (9) SCR 965 
referred to 
Para 27 
G 2013 (4) SCR 767 
referred to 
Para 28 
2014 (6) SCR 873 
referred to 
Para 29 
1965 seR 413 
distinguished 
Para 35 
2007 (1) SCR 317 
referred to 
Para 36 
H
YOGENDRAKUMARJAISWALETC. v. STATE OF BIHAR 1053 
(2014) 11sec415 
held applicable 
Para 37 
A 
(2014) 10 sec 1 
referred to 
Para 41 
1968 .SCR 709 
referred to 
Para 43 
2005 (1) SCR 223 
referred to 
Para 43 
1979 (2) SCR 476 
referred to 
Para 44 
B 
1983 (3) SCR 130 
referred to 
Para 50 
(1959) Supp. 2 SCR 822 referred to 
Para 50 
(1956) SCR 393 
referred to 
Para 50 
c 
2004 (1) Suppl. SCR 301 referred to 
Para 52 
2003 (6) Suppl. SCR 331 referred to 
Para 53 
2005 (2) SCR 302 
referred to 
Para 54 
2007 (5) SCR 729 
referred to 
Para 55 
D 
1994 (4) Suppl. SCR 278 referred to 
Para 56 
2001 (2) SCR 807 
referred to 
Para 57 
2002 (1) SCR 1099 
referred to 
Para 57 
.. 
E 
2008 (1) SCR 457 
referred to 
Para 57 
2002 (4) Suppl. SCR 27 
referred to 
Para 58 
2002 (2) Suppl. SCR 555 referred to 
Para 59 
1994 (5) Suppl. SCR 526 referred to 
Para 61 
F 
(1985) 3 sec 661 
referred to 
Para 62 
(2011) 8 sec 108 
referred to 
Para 63 
2015 (11) SCALE 1 
referred to 
Para 83 
1983 (1) SCR 1000 
referred to 
Para 84 
G 
1987 (2) SCR 1 
referred to 
Para 86 
1989 (2) Suppl. SCR 336 referred to 
Para 87 
1964 SCR 784 
referred to 
Para 88 
H
1054 
SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
A 
2000 (3) SCR 219 
referred to 
Para 89 
1978 (1) SCR 423 
referred to 
Para 91 
1977 (1) SCR 1072 
referred to 
Para.92 
2015 (5) SCR 963 
referred to 
Para 93 
B 
1990 (1) Suppl. SCR 142 referred to 
Para 94 
2013 (17) SCR 116 
referred to 
Para 95 
2003 (2) Suppl. SCR 915 referred to 
Para 96 
c 1992 (2) Suppl. SCR 182 referred to 
Para 100 
1969 SCR 481 
referred to 
Para 100 
1999 (1) Suppl. SCR 135 referred to 
Para 114 
1959 SCR279 
referred to 
Para 115 
D 2008 (6) SCR 566 
referred to 
Para 116 
1960 SCR 680 
referred to 
Para 117 
1960 SCR 592 
referred to 
Para 118 
E (1954) SCR 30 
referred to 
Para 121 
(1952) SCR 284 
referred to 
Para 121 
(1952) SCR 435 
referred to 
Para 121 
1999 (3) SCR 653 
referred to 
Para 122 
F 1962 SCR 125 
referred to 
Para 122 
1955 SCR 158 
referred to 
Para 124 
1988 (1) SCR 1 
referred to 
Para 125 
1953 SCR 730 
referred to 
Para 131 
G 1963 (2) SCR 111 
referred to 
Para 132 
1985 (3) Suppl. SCR 680 ·referred to 
Para 134 
1996 (1) SCR 215 
referred to 
Para 135 
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1055 
2014 (1) SCR 885 
referred to 
Para 136 
2013 (2) SCR 20 
referred to 
Para 140 
1989 (3) SCR 428 
referred to 
Para 140 
1960 SCR 89 
referred to 
Para 140 
(1969) 1 sec 445 
referred to 
Para 141 
1975 (3) SCR 927 
referred to 
Para 141 
2006 (6) Suppl. SCR 855 referred to 
Para 142 
2001 (2) Suppl. SCR 545 referred to 
Para 146 
2010 (9) SCR 476 
referred to 
Para 147 
2012 (10) SCR 157 
referred to 
Para 148 
2012 (3) SCR 496 
referred to 
Para 149 
1954 SCR 1077 
referred to 
Para 151 
CIVIL I CRIMINAL APPELLATE JURISDICTION: Civil 
Appeal Nos. 6448-6452 of 2011. 
A 
B 
c 
D 
From the Judgment and Order dated 23.02.2011 of the 
High Court of Judicature at Patna in CWJC Nos. 10735, 10455, 
E 
10456, 10692 & 10983 of 2010 
WITH 
C. A. No. 6460 of 2011 
Crl.A. Nos. 360-378, 385-386, 387, 388, 379-384, 389, 
F 
390, 1371 and 1372 of 2012 
Crl.A. Nos.1678, 1679and 1680of2015 .. 
Gaurav Agrawal, M. P. Jha, Harshvardhan Jha, 
Ms. Yugandhra Jha, Rak Ekbal Roy, Vinoo Bhagat, Sibo G 
Sankar Mishra, Anirudh, Mukul Kumar, Ajay Sharma, Anupam 
Lal Das, Suchit Mohanty, Ashok Mathur, Prashant Shukla, 
Pashupathi Nath Razdan,Advs. fortheAppelle),nt. 
H
1056 
A 
B 
SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
Manish Kumar, Rashmi Srivastava, (For Gopal Singh), 
Santosh Mishra, Param Mishra, Nishant Ramakantrao 
Katneshwarkar, Shibashish Misra, Ms. Sakshi Kakkar, C. D. 
Singh,Advs. for the Respondents. 
The Judgment of the Court was delivered by 
DIPAK MISRA, J. 1. Corruption, a 'noun' when assumes 
all the characteristics of a 'verb', becomes self-infective and 
also develops resistance to antibiotics. In such a situation 
the disguised protagonist never puts a Hamletian question -
c "to be or not to be" - but marches ahead with perverted 
proclivity- sans concern, sans care for collective interest, 
and irrefragably without conscience. In a way, corruption 
becomes a national economic terror. This social calamity 
warrants a different control and hence, the legislature comes 
0 
up with special legislation with stringent provisions. The law 
having been enacted, there is a challenge to the constitutionality 
of the provisions. That is the subject matter of these appeals, 
for the judgments rendered by the High Courts of Orissa 
and Patna are under assail herein. 
E 
2. Leave granted in Special Leave Petition (Criminal) 
No. 4558 of 2012, Special Leave Petition (Criminal) No. 3084 
of 2013 and Special Leave Petition (Criminal) No. 3085 of 
2013. 
3. In this batch of appeals, by special leave, we are called 
F 
upon to deal with the legal substantiality of the judgments 
rendered by the High Court of Judicature of Orissa at
Cuttack 
and the High Court of Judicature at Patna upholding the 
constitutional validity of the Orissa Special Courts Act, 2006 
G (for brevity, "the Orissa Act") which has been assented to by 
the President of India on 19.9.2007 and published in 
Extraordinary Orissa Gazette on 15.10.2007; and the Bihar 
Special Courts Act, 2009 (for short, "the Bihar Act"), 
respectively. We are also required to consider the validity of 
an aspect of Bihar Special Court Rules, 201 O (for short, "the 
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1057 
[DIPAK MISRA, J.] 
201 O Rules"). May it be stated though the High Court has noted 
A 
the same and made certain observations yet has not 
proceeded to deal with the validity of the Rule in question. 
4. As the factual matrix in all the cases has a common 
backdrop, we shall refer to the facts in brief. In all the cases, 
8 
the appellants are/were public servants and facing criminal 
cases for various offences including the offences under the 
Prevention of Corruption Act, 1988 (for short, 'the 1988 Act'), 
particularly Section 13(1 )(e) of the 1988Act on the allegation 
that they were having property disproportionate to their known 
C 
sources of income. The grievance of appellants in these 
·· appeals relate to the impact and effect of the legislations 
brought during the pend ency of the proceedings. That apart, 
the constitutional validity of the number of provisions of the 
two enactments has been assailed on many a ground which 0 
are not restricted to the pending trials alone. 
5. At the outset, we may state that the provisions in both 
the Acts are almost similar and, therefore, we shall dwell upon 
the constitutionality of the Orissa Act first and in course of our 
delineation, we shall refer to the Bihar Act wherever it is 
E 
necessary. Hence, we proceed to deal with the Orissa Act. 
The State legislature keeping in view the accumulation of 
extensive properties disproportionate to the known sources 
of income
by persons who had held or are holding high political 
and public offices, thought it appropriate to provide special 
F 
courts for speedy trial for certain class of offences and for 
confiscation of properties involved; and accordingly, enacted 
the Orissa Act which was passed·by the Orissa Legislative 
Assembly that got the assent of the President of India. The 
State Government in exercise of its power conferred under G 
Section 27 of the Orissa Act framed a set of Rules, namely, 
the Orissa Special Courts Rules, 2007 (for short "2007 Rules"). 
6. Before we dwell upon the submissions that were raised 
before the High Court and how the High Court has dealt with 
H
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SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
A 
them, we think it appropriate to understand the scheme of the 
Orissa Act. Section 2(a) of the Orissa Act defines "authorised 
officer" which means any serving officer belonging to Orissa 
Superior Judicial Service (Senior Branch) and who is or has 
been an Additional Sessions Judge, nominated by the State 
B Government with the concurrence of the High Court for the 
purpose of Section 13. Section 2(c) defines "declaration" in 
relation to an offence and it means a declaration made under 
Section 5 in respect of such offences. The term "offence" has 
been defined under Section 2(d) which means an offence of 
C criminal misconduct within the meaning of clause (e) of sub-
section (1) of section 13 of the 1988 Act.As per dictionary 
clause, Section 2(e) specifies "Special Court" which means a · 
Special Court would be one as provided under Section 3 of 
the Orissa Act. Section 2(f) provides that words and 
D expressions used herein and not defined but defined in the 
Code shall have the same meanings respectively assigned to 
them in the Code. 
7. Section 3 of the Orissa Act deals with establishment 
of Special Courts. Section 4 enables the Special Court to 
E take cognizance and try such cases as are instituted before it 
or transferred to it under Section 10. Section 7 deals with the 
jurisdiction of Special Courts as to trial of offences. It lays down 
that Special Court shall have jurisdiction to try any person 
alleged to
have committed the offence in respect of which a 
F declaration has been made under Section 5, either as the 
principal, or as a conspirator or abettor and for all the other 
offences, and the accused persons can jointly be tried therewith 
at one trial in accordance With the Code of Criminal Procedure, 
1973 ("the Code" for short). Section 8 deals with the procedure 
G and powers of the Special Courts. Sub-section (2) of Section 
8 lays the postulate that save as expressly provided in the Act, 
the provisions of the Code and of the 1988Actshall, in so far 
as they are not inconsistent with the provisions of the Orissa 
Act, apply to the proceedings before a Special Court and for 
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1059 
[DIPAK MISRA, J.] 
the purpose of the said provisions, the person conducting a A 
prosecution before a special court shall be deemed to be a 
Public Prosecutor. Section 9 provides for an appeal to the High 
Court of Orissa from any judgment and sentence. Section 10 
confers the power on the High Court of Orissa to transfer cases 
from one Special Court to another. Section 11 ( 1) expressing 
B 
the legislative command lays down that the special courts shall 
not adjourn any trial for any purpose unless such adjournment 
is, in its opinion, necessary in the interest of justice and for 
reasons to be recorded in writing and sub-Section (2) of said 
Section provides that the Special Court shall endeavour to 
C 
dispose of the trial of the case within a period of one year from 
the date of its institution or transfer, as the case may be. Section 
12 enables the Special Judge presiding over a Special Court 
on the evidence recorded by his predecessor or predecessors 
or partly recorded by his predecessor or predecessors and 
D 
partly recorded by himself. Section 13 provides for filing of 
application for confiscation before the Authorised Officer. If 
empowers the State Government to authorise the Public 
Prosecutor to make an application and also stipulates what 
the application shall accompany. 
E 
8. Section 14 provides for issuance of show cause notice 
by the Authorised Officer to the person concerned to explain 
his
source of income and other assets and why such money or 
property or both should not be declared to have been acquired 
by means of the offence and be confiscated to the State 
F 
Government. Sub-section (2) provides that where a notice 
under sub-section (1) to any person specifies any money or 
property or both has been held on behalf of such person by 
any other person, a copy of the notice shall also be served 
upon such other person. Sub-section (3) lays down that the G 
evidence, information or particulars brought on record before 
the authorised officer shall not be used against the accused in 
the trial before the special court. Section 15 deals with the 
confiscation of property in certain cases. It provides a detailed 
H
1060 
SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
A 
procedure and obliges the authorised officer to follow the 
principles of natural justice. It prescribes a time limit for disposal 
of the proceeding and gives immense stress on identification 
of property or money or both which have been acquired by 
means of the offence and further it makes the confiscation 
B· subject to the order passed in appeal under Section 17 of the 
Orissa Act. It may be noted here that the proviso to Section 
15(3) stipulates that the market price of the property 
confiscated, if deposited with the Authorised Officer, the 
property shall not be confiscated. Section 16 lays down that 
C after the issue of notice under Section 14, any money or 
property or both referred to in the said notice are transferred 
by any mode whatsoever, such transfer shall for the purposes 
of the proceedings under the Orissa Act, be void and if such 
money or property or both are subsequently confiscated to the 
D State Government under Section 15, then the transfer of such 
money or property or both shall be deemed to be null and 
void. Section 17(1) enables the aggrieved person by the order 
passed by an authorised officer to prefer an appeal within thirty 
days from the date on which the order appealed against was 
E passed. Sub-section (2) provides that upon appeal being 
preferred under the said provision, the High Court may, after 
giving such parties, as it thinks proper, an opportunity of being 
heard, pass such
order as it thinks fit; sub-section (3) requires 
the High Court to dispose of the appeal within three months 
F 
from the date it is preferred and stay order, if any, passed in 
appeal shall not remain in force beyond the period prescribed 
for disposal of appeal. Sub-section ( 1) of Section 18 of the 
Orissa Act empowers the State Government to take 
possession. It stipulates that where any money or property 
G has been confiscated to the State Government under the Act, 
the concerned authorised officer shall order the person affected 
as well as any other person who may be in possession of the 
money or property or both, to surrender or deliver possession 
thereof to the concerned authorised officer or to any person 
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1061 
[DIPAK MISRA, J.) 
duly authorised by in this behalf, within thirty days of the service A 
of the order. The proviso to the said sub-section stipulates 
that the authorised officer, on an application being made in 
that behalf and being satisfied that the person affected is 
residing in the property in question, may instead of 
dispossessing him immediately from the same, permit such 
B 
person to' occupy it for a limited· period to be specified on 
payment of market rent to the State Government and thereafter, 
such person shall deliver the vacant possession of the property. 
Sub-section (2) provides that if any person refuses or fails to 
comply with an order made under sub-section (1 ), the C 
authorised officer may take possession of the property and 
may, for that purpose, use such force as may be necessary. 
Sub-secti0n (3) confers powers on the authorised officer to 
requisition service of any police officer to assist and mandates 
the concerned police officer to comply with such requisition. 
D 
9. Chapter IV of the Orissa Act deals with the 
miscellaneous provisions. Section 20 stipulates that no notice 
issued or served, no declaration made and no order passed 
under the Act shall be deemed to be invalid by reason of any 
error in the description of the property or person mentioned 
E 
therein, if such property or person is identifiable from the 
description so mentioned. Section 21 provides that the 
provisions
of the Orissa Act shall be in addition, and not in 
derogation of, any other law for the time being in force. It also 
lays down that nothing contained in the Act shall exempt any 
F 
public servant from a proceeding, apart from this Act, be 
instituted against him. Section 22 says save as provided in 
Sections 9 and 17 and notwithstanding anything contained in 
any of the law, no suit or any other legal proceeding shall be 
maintainable in any Court in respect of money or property or G 
both ordered to be confiscated under Section 15. Section 23 
grants protection to the person in respect of any action done 
in good faith or intended to b.e done in pursuance of the Orissa 
Act. Section 24 empowers the State Government to make rules 
H
1062 
SUPREME COURT REPORTS 
[2015] 14S.C.R. 
A 
as it may deem necessary for carrying out the purposes of the 
Orissa Act. Section 26, an overriding provision, provides that 
notwithstanding anything in the 1988 Act and the Criminal Law 
Amendment Ordinance, 1944 or any other law for the time 
being in force, the provisions of the said Act shall prevail in 
B case of any inconsistency .. 
10. Having enumerated the scheme of the Orissa Act, 
we think it appropriate to refer to certain definitions under the 
2007 Rules framed under the Orissa Act. Rule 2(e) and (f) 
define "person holding high public office" and "person holding 
C high political office", respectively. The said definitions read as 
D 
E 
F 
G 
H 
under:-
"2(e) "person holding high public office" includes a 
public servant falling within the meaning of clause 
(c) of Section 2 of the Prevention of Corruption 
Act, 1988 or under Section 21 of the Indian Penal 
Code, 1860 and belonging to Group-A service of 
the Central or State Government or officers of 
equivalent rank in any organization specified in the 
explanation below clause (b) of Section 2 of the 
said Act who was serving under or in connection 
with the affairs of the State Government; 
(f) "Person holding high political office" includes-
(i) members of the Council of Ministers and the 
Chief Minster; 
(ii) any person falling under the definition of public 
servant under clause (c) of Section 2 of the 
Prevention of Corruption Act, 1988 or under
Section 
21 of the Indian Penal Code, 1860 who has been 
appointed to discharge the executive functions of 
the State in any organization specified in the 
explanation below clause (b) of Section 2 of the 
said Act and receiving pay or honorarium or 
allowances for the services so rendered."
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1063 
[DIPAK MISRA. J.] 
11. We have only referred to the abovesaid definitions A 
since the learned counsel for the State has made an effort to 
get support from the same and the learned counsel for the 
appellants have submitted that" rules are not to be taken 
recourse to for sustaining the constitutional validity of the Act. 
12. Be it stated after judgment was delivered by the High 
8 
Court on 16.9.2010, the State Government, Department of 
Home brought out a notification on 27.11.2010 amending 
certain rules. The relevant rule which has been amended is as 
follows:-
"2. In the Orissa Special Courts Rules, 2007 
(hereinafter referred to as the said Rules), in Rule 
2, in sub-rule(1 ), in clause (e), after the words and 
the figures "Indian Penal Code, 1860" and before 
c 
the words "belonging to Group '/!\ Service", the 
D 
words "including Officers of All India Services 
working under Government of Orissa" shall be 
.inserted." 
13. The constitutional validity of the Act as well as the 
Rules (prior to the amendment of the Rule) was assailed before 
E 
the High Court in many a writ petition. The High Court noted 
the rivalised contentions and basically posed six questions, 
The sixth question related to a writ petitioner who was an IAS 
officer and it was asserted that he belonged to a category other 
than the officer of Group A service and hence, the declaration 
F 
bringing him under the Act was illegal. Thus, the said
issue 
stands on a different footing and we shall in due course deal 
with the said challenge but the five questions posed by the 
High Court are enumerated herein:-
"(1) Whether the similar provisions in the present 
impugned Act is required to be re-examined in 
these writ petitions with reference to either the 
definition clause or declaration under section 5( 1) 
and other provisions of Chapter Ill of the impugned 
G 
H
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SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
A 
Act in view of the decision rendered by this Court 
in Kishore Chandra Patel's case (supra) wherein 
the provisions of section 5 and other similar 
provisions of the impu·gned Act and Chapter Ill 
(Confiscation) have already been held to be 
B 
constitutional, legal and valid as the same do not 
offend Articles 14 and 21 of the Constitution. 
(2) Whether the impugned Act is repugnant or 
inconsistent with the provisions of the Prevention 
c 
of Corruption Act and other Central Acts to the 
impugned Special Courts Act, 2006? 
(3) Whether the provisions of the Orissa Special 
Courts Act, 2006 are repugnant to the provisions 
of the Prevention of Money Laundering Act as 
D 
amended byAmendmentAct, 2009? 
(4)Whetherthe impugned notification issued under 
section 5(1) of the Act is liable to be quashed? 
(5) Whether introducing the bill as Money Bill is legal 
E 
and valid?" 
14. After posing the said questions, the High Court dealt 
with question nos. 1 and 4 together and referre? to the decision 
in Kishore Chandra Patel v. State of Orissa , and observed 
that in the aforesaid judgment, the constitutional validity of Part 
F 
Ill regarding confiscation of monies and properties of the 
accused persons, who were facing the criminal trial in the 
Special Court constituted under the Orissa Special Courts 
Act, 1990 by the State Government for speedy disposal, was 
held to be legal and valid and did not violate any of the 
G
fundamental rights and were not inconsistent with the statutory 
rights conferred either under the Code or the Criminal Law 
Amendment Act or Civil Procedure Code. The High Court also 
took note of the fact that the earlier Division Bench had issued 
certain directions and an ordinance was brought in to cure the 
H 
1 1993 (76) CLT 720 
\
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1065 
[DIPAK MISRA, J.) 
flaws and the Court had ultimately found that the amended Act A 
was constitutional. Keeping the same in view, the Division 
Bench by the impugned order opined that section 5 of the Act 
is constitutional. The High Court also took note of an affidavit 
filed on 23.7.2010 and on that basis ruled that the 
apprehension that certain cases would be selectively picked 
B 
and chosen from amongst the offenders charged under Section 
13(1)(e) of the 1988 Act for the purposes of invoking the 
provision of Chapter Ill was untenable in law. After making 
referenc? to the authority in Delhi Administration v. V.C. 
Shukla , the Court opined that the attack based on C 
discrimination was unfounded and accordingly answered the 
riuestion nos. 1 and 4 against the writ petitioners. While dealing 
with the question no. 3 which pertained to the repugnancy of 
the Orissa Act to the provisions of the Prevention of Money 
Laundering Act, 2002 as amended by Amendment Act 2009, 
D 
it has been opined that there was no repugnancy between the 
two statutes, for the procedure under both the statutes relating 
to confiscation of monies and properties of the accused are 
different and further the Prevention of Money Laundering Act, 
2002 does not efface the prosecution against the persons E 
facing prosecutions underthe 1988Act. That apart, the Division 
Bench also opined that Part A and Part B of the Schedule to 
the Prevention of
Money Laundering Act, 2002 provide that in 
case of specified offence under the lnd.ian Penal Code (IPC), 
Narcotic Drugs and Psychotropic Substances Act, 1985 F 
(NDPS Act) and the Explosive Substances Act, 1908, the 1988 
Act, an accused can be prosecuted under the said statutes, 
apart from being prosecuted under the Preventiqn of Money 
Laundering Act, 2002. The Court placed reliance on 
3 
• 
S. Satyapa/ Reddy v. Govt. of A.P. & Ors , M.P. Sh1kshak G 
4 
Congress & Ors. v. R.P.F. Commissioner, Jabalpur & Ors ., 
. 
5 
P. Venugopa/ v. Unionoflndia, M. Karunanidhi v. Union 
3 
4(1994) 4 sec 391 
,g~~~; ~ ~gg ~96 
H
1066 
SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
6 
7 
A of India and Hoechst Pharmaceuticals v. State of Bihar 
and came to hold that there was no repugnancy. As far as 
question no. 5 is concerned, the High Court referred to the 
scheme of Articles 198 and 199, referred to the authorities in 
State of Punjab v. Satyapa/8 and Burrakur Coat Co. Ltd v. 
B Union of lndia9 and negatived the assail. As is manifest, the 
Court has fundamentally placed heavy reliance on earlier 
legislation which was given the stamp of approval by the High 
Court in Kishore Chandra Patel (supra). 
15. Having stated how the Division Bench of the High 
C Court of Orissa has dealt with the constitutional validity of the 
Orissa Act, we think it apt and definitely for the sake of 
convenience, to refer to the Bihar Act, challenges before the 
High Court and the judgment rendered by the High Court of 
Judicature at Patna. The Bihar Act was notified in the Gazette 
D on 8.2.2010. Section 2 of the dictionary clause defines the 
Act, that is, the 1988 Act, Authorised Officer, Declaration and 
Offences. Section 3 deals with establishment of Special 
Courts. Section 4 provides for taking cognizance of cases by 
Special Courts. Section 7 provides the jurisdiction of the 
E Special Courts for trial of offence. Section 8 stipulates the 
procedure and powers of the Special Courts. Section 9 
provides for an appeal against the judgment and sentence to 
the High Court. Section 10 deals with transfer of cases.
Sections 11 and 12 deal with the role of the presiding Judge. 
F 
Chapter 111 of the Bihar Act deals with confiscation of property. 
Sections 13 to 16 are similar to the Orissa Act. Section 18 
empowers the authorized officer to take possession. The 
proviso appended there is similar to the Orissa Act. Section 
19 deals with refund of confiscated money or property. Chapter 
G IV of the Bihar Act enumerates the miscellaneous provisions 
and Section 26, like the Orissa Act states as regards the 
' ,AIR (1979) SC 898 
,AIR (1983) SC 1019 
H 
'~:~ ~~~~~~ ~g ~~~
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1067 
[DIPAK MISRA, J.] 
overriding effect. The competent authority has framed a set of A 
rules, namely, Bihar Special Courts Rules 2010, for short, 
"2010 .Rules". Rule 2(f) of the 2010 Rules defines "public 
servant" to mean a public servant as defined within the meaning . 
of clause (c) of Section 2 of the 1988Act or under Section 21 
of the Indian Penal Code, 1860 and including Group-Aservice B 
ofthe Central or State Government or officers of equivalent 
rank in any organization specified in the explanation below 
clause (b) of Section 2 of the said Act who was serving 
under or in connection with the affairs of the State 
Government. Rule 6 deals with cognizance and trial by the C 
Special Court. Rule 9 states that the State Government, in 
consultation with the High Court shall nominate an officer 
belonging to the cadre of the Bihar Superior Judicial Service, 
Senior Branch, who is or has been a Sessions Judge or 
Additional Sessions Judge to act as the authorized officer for o 
the purposes of the Act and requires him to follow the summary 
procedure. Rule 13 deals with the application of CrPC 
and it stipulates that the provisions of the Code shall apply to 
the proceedings before the authorised officer insofar as they 
are not inconsistent with the provisions of the Act. Rule 14 E 
provides for particulars of an application made before the 
Authorised Officer and Form of Notice. The said Rule provides 
the particulars
to be mentioned while filing an application 
under Section 13 of the Act which requires a range of 
information to be furnished. 
F 
16. Presently, we shall refer to the judgment rendered by 
the Division Bench of the Htgh Court of Patna. It has referred 
to the preamble and highlighted certain aspects of the 
preamble and scanned the anatomy of the Bihar Act. It was 
contended before the High Court that the declaration made G 
under Section 5 which brings the case of the accused under 
the purview of the Bihar Act to be tried by the Special Judge, 
exposes him to the risk of confiscation of property which the 
accused does not face under the 1988 Act; that when there 
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[2015] 14 S.C.R. 
A are sufficient provisions in the CrPC pertaining to disposal of 
property at conclusion of the trial under Section 452, there was 
no justification or warrant to introduce a provision for 
confiscation; that no guidelines have been provided by the 
legislature for working of Section 5(1) and 5(2) of the 2009 
B Act and it is cqmpletely unguided giving total discretion to the 
State Government to pick and choose any particular case; that 
Section 5(1) suffers from unreasonable classification because 
certain offences covered under the 1988 Act would be tried by 
the Special Judge under the 1988 Act and offence defined 
C 
under the BiharAct would be tried according to the procedure 
which is more rigorous; that the necessity of speedy trial by 
itself is too vague to withstand the test of reasonable 
classification; that there is no intelligible differentia which can 
sustain the classification and hence, it is hostile, discriminatory 
D and contrary to the basic tenet of Article 14 of the Constitution; 
that there has been excessive and unguided delegation of 
power to the executive and, therefore, the manner of 
classification to be undertaken is contrary to the constitutional 
scheme. 
E 
17. Resisting the aforesaid submissions, it was urged 
on behalf of the State that the 2009 Act was brought into 
existence regard being had to the rampant corruption and 
disproportionate assets amassed by the public servants 
through
illegal means; that it is the obligation of the State to 
F 
prosecute such persons and confiscate their ill-gotten assets; 
that Section 5(1) does not suffer from vice of discrimination 
and it withstands the test of discernible differentia and there 
has been no abdication of legislative function or conferment 
of unguided delegation of power; that making a provision for 
G speedy trial is a facet of Article 21 of the Constitution and in 
the obtaining scenario to eradicate the maladies and the 
menace, the legislature had enacted the legislation to deal 
with it frontally; that the power vested under Section 5 has 
enough guidance and it cannot be said that it falls foul of Article 
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1069 
[DIPAK MISRA, J.) 
14 of the Constitution; that from the very definition of the term 
A 
"offence" it is clear that it is in a different category or 
compartment altogether; that the non-assail of the declaration 
before any court would not include the High Court or the 
Supreme Court of India which exercises power of judicial 
review; that the challenge to Section 6(2) of the Act takes in its 
B 
sweep the pending cases whereby making the provision 
effective; that it neither offends Article 20(1) nor Article 20(3) 
of the Constitution, for the plea that accused persons would 
be exposed to harsher punishment relating to confiscation 
which is a greater penalty that was prescribed for the offence C 
under the 1988 Act, is unsustainable inasmuch as the Act does 
not alter the punishment for the offence as provided under the 
1988 Act and, in any case, the confiscation proceeding is an 
independent proceeding to be conducted by the authorized 
officer and it cannot be treated as a part of the criminal 
D 
proceeding; that the procedure prescribed for adjudication of 
· the issues relating to confiscation of properties does not suffer 
from any arbitrariness inasmuch as the confiscation including 
taking over possession of the confiscated property is 
" 
independent and the plea that the findings recorded by the 
E 
authorized officer in every likelihood to cause prejudice and 
bias during the trial, is absolutely
unsustainable inasmuch as 
the statute itself provides the exclusion of consideration of 
the said material and the findings during the trial. 
18. Adverting to the rivalised submissions, the High Court F 
opined that the nature of property sought to be confiscated 
under the Act is different and, therefore, the assail has no 
substance; that the provision in Section 13 of the Act and 
related provisions in Chapter-Ill cannot be faulted on account 
of ordinary principles of criminal jurisprudence that penalty or G 
punishment must follow determination of guilt of the accused 
for confiscation, a pro tern one, is of a different nature; that the 
Act guarantees fairness to the accused by making the order 
of confiscation subject to an appeal before the High Court as 
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[2015] 14 S.C.R. 
A well as subjectto the final determination of guilt of the accused 
in the trial; that the general criticism that the procedure for 
confiscation invites the wrath of Article 14 of the Constitution 
does not deserve acceptance; and that the proceeding for 
confiscation is to be adjudicated by the Authorized Officer who 
B has to be a Sessions Judge or Additional Sessions Judge 
and hence, there is fair and adequate protection provided for 
considering the case of the delinquent before passing an order 
of confiscation. Adverting to the likelihood of bias, the High 
Court opined that a trained judicial mind of a person holding 
C post of Sessions Judge/Additional Sessions Judge is not 
expected to suffer from prejudice and the legislature has 
cautiously entrusted the confiscation proceeding to an 
"Authorized Officer" whereas the trial has been entrusted to 
the "Special Court", and that is why the words i.e. "Authorized 
D Officer" and "Special Court" have been separately defined and 
the distinction is evident and it is quite clear that confiscation 
proceeding and criminal trial against accused of an offence 
are not conducted by the same judicial officer; and, therefore, 
the likelihood of bias is not allowed to have any room. 
E 
19. The High Court of Patna while dealing with the vice 
of Section 17(3) proceeded to interpret sub-section (3) of 
Section 17 and opined that legislature has not given a definite 
and fixed
period of six months as the time for disposal of appeal 
regard being had to the phraseology used in the provision, for 
F 
it has been stipulated that an appeal preferred under sub-
section ( 1) shall be disposed of preferably within a period of 
six months from the date it is preferred, and stay order, if any, 
passed in an appeal shall not remain in force beyond the 
prescribed period of disposal of appeal. The High Court has 
G observed that the use of word "preferably" is a definite pointer 
that the legislature has only indicated its preference that the 
appeal should be disposed of within a period of six months 
but it also permits disposal of the appeal beyond the period of 
six months and, therefore, it will not be proper to construe that 
H
YOGENDRAKUMARJAISWALETC. v. STATE OF BIHAR 1071 
[DIPAK MISRA, J.] 
the prescribed period for disposal of an appeal is only six A 
months. As a logical corollary, it ruled that six months is not the 
prescribed period of disposal of appeal, but it is only desirable 
that the appeal should be disposed of within six months, and, 
accordingly, the stay order passed by the High Court will not 
lose its force automatically on expiry of any particular period. 
B 
Placing such an interpretation, the High Court of Patna 
expressed the view that the said interpretation is to be preferred 
in order to save the provision from the vice of 
unreasonableness by causing undue hardship to the 
delinquent-appellant. 
C 
20. Dwelling on the issue of refund as contained under 
Section 19 is concerned, the High Court found merit in the 
contention advanced on behalf of the writ petitioners and 
observed that there can be no justification to cause any hardship 
or loss to the delinquent or the accused once the confiscation 
D 
proceeding fails because it is the constitutional obligation of 
the State that it shall not act in an unreasonable manner. Being 
of this view, it clarified that Section 19 requires clarification by 
way of interpretation that ordinarily when the confiscation is 
modified or annulled by the High Court in an appeal or where 
E 
the person affected is acquitted by the Special Court, the 
money or property or both shall be returned to the person 
affected, and for not
returning the property, the State shall have 
to seek permission of the High Court ot the Special Court as 
the case may be to return only the price of the property and 
F 
such permission shall be granted only when the State is able 
to show good reasons as to why it is not possible to return the 
property. So far as the rate of interest of 5% per annum is 
·concerned, it is clearly insufficient and hence, in case the 
confiscated property is not returned by showing good reasons G 
that it is not possible to do so, the interest payable must be at 
the usual bank rate prevailing during the relevant period for a· 
loan to purchase or acquire similar property and then alone 
the constitutionality of the said provision can be saved. 
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A 
21. Dealing with the grievance relating to forceful eviction 
from dwelling house ordinarily occupied by the delinquent/ 
accused prior to final determination of guilt in course of trial 
for the offence, as contemplated under Section 18 of the Act, 
the Division Bench observed that the said provision makes 
B no distinction between the properties found fit for confiscation, 
for all the properties subjected to confiscation proceeding 
whether they are dwelling house or other kinds of property have 
been treated alike. Addressing to the submission that an 
exception should have been made in respect of a dwelling 
C house or unit where the delinquent/accused ordinarily resides 
himself with or without his family, because the dwelling house 
meets one of the basic needs of a person and it would be 
arbitrary to deprive a delinquent of such basic requirement 
when the trial is still pending and taking note of the argument 
D on behalf of the State that the entire confiscated property has 
to be treated similarly and not making of an exception for a 
dwelling house o"r unit from the provisions of Section 18 does 
not violate any constitutional provision, the High Court opined 
that no distinction made between the two sets of properties is 
E justified. That apart, the Court held that once the relevant 
purpose is to confiscate all the ill-gotten money or property, 
even if such property includes a dwelling house or unit also
under the scheme of the Act, and if there would be any 
exclusion, it would, to a large ex1ent, frustrate the object of the 
F 
Act instead of subserving the purposes of the Act. It further 
opined that if after undergoing the reasonable procedure of 
confiscation proceeding, including appeal, a dwelling house 
or unit of the delinquent is found to be ill-gotten property which 
cannot be accounted for on the basis of lawful income of the 
G delinquent, there can be hardly any justification to allow the 
delinquent to continue in enjoyment of such ill- gotten property 
only because the trial is still pending. The legislature having 
taken precautions to expedite the trial and if it is made to linger 
inspite of such provisions, the accused would always be at 
H
YOGENDRAKUMAR JAISWAL ETC. v. STATE OF BIHAR 1073 
[DIPAK MISRA, J.] 
·liberty to take remedial action and get the trial expedited. Being A 
of this view, the Writ Court found that the said provision does 
not violate any of the facets of Articles 14 and 21 of the 
· Constitution of India. 
22. It wcis also urged before the High Court that the 
confiscation proceedings as provided under the Act is 
8 
impermissible because it leaves no option to the affected 
person but to disclose his defence prior to holding of the trial 
and such compulsion upon him to disclose true state of affairs 
in the confiscation proceeding frustrates the right guaranteed 
by the Article 20(3) of the Constitution. The High Court did not C 
find any substance in the said submission and opined that grant 
of opportunity in confiscation proceeding to the delinquent 
· official cannot be construed as compelling him to be a witness 
against himself. It also opined that considering the nature of 
the two proceedings, both could be maintained together or D 
one after another, for the order of confiscation has been made 
subject to a final judgment in the trial by the Special Court. 
23. Dealing with an Interlocutory Application bearing No. 
10468 of 2010 filed in CWJC No. 10735/201 O after dealing 
E 
with the constitutional validity of the Act, the High Court 
expressed its unwillingness to decide the vi res of the 2010 
Rules which was sought to be challenged as the said I.A. was 
not pressed. However,
the High Court observed as follows:-
"Although we have given the liberty aforesaid but 
F 
sometimes it is useful to observe certain facts in 
order to avoid unnecessary litigation. In respect of 
Bihar Special Court's Rules, 2010 a grievance was 
raised that Rule 12(f) envisages a procedure which 
is contrary to procedure prescribed for trial of 
G 
warrant cases before a Magistrate which has been 
prescribed by Section 18( 1) of the Act. It goes 
without saying that in case of conflict between Act 
of Legislature and Rules framed under the Act, the 
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SUPREME COURT REPORTS 
[2015] 14S.C.R. 
A 
provisions of the Act will prevail. The State of Bihar 
is expected to take note of the aforesaid 
submission in its own interest and amend the 
relevant Rule if there is any need felt forthe same." 
24. Thus, the High Court interpreted certain provisions 
B to sustain the constitutional validity of the Act and as far as the 
Rule is concerned observed as above, and thereafter 
dismissed the writ petitions. 
25. We have heard Mr.A, Saran, Mr. Vinoo Bhagat, Mr. 
c P.S. Narasimha, Mr. R.K. Dash, Mr. Rakhruddin, Mr. S.B. 
Upadhyaya, Mr. Neeraj Shekhar, Mr. Gaurav Agrawal, Mr. 
Anirudh Sanganeria, and Mr. M.P. Jha, learned counsel for 
the appellants and Mr. Ranjit Kumar, Mr. S.K. Padhi, learned 
senior counsel, Mr. Gopal Singh, Mr. Shibashish Misra and 
0 
Mr. Nish ant Ramakantrao Katneshwarkar, learned counsel for 
the respondents. 
26. At the outset, we think it appropriate to mention that-
the learned counsel for the parties had addressed at length 
with regard to the issues raised before the High Court and 
E also canvassed certain issues of law before us and we had 
permitted them to argue the matter from all angles. Before we 
enumerate the issues that have been urged before the High 
Court and the additional points that have been canvassed 
before us, it is necessary to understand the background of the 
F legislation. We have already indicated at the beginning the 
purpose of enacting the legislation by the States of
Odisha 
and Bihar and have scanned the scheme of both the Acts and 
also adumbrated upon the reasoning ascribed by the High 
Courts while upholding the constitutional validity of the 
G enactments. Be it noted, the objects and reasons of the Orissa 
Act as well as that of the Bihar Act are almost similar. Therefore, 
we only reproduce the objects and reasons of the Orissa Act. 
It reads as follows:-
· 
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1075 
[DIPAK MISRA, J.] 
"An Act to provide for the constitution of special 
courts for the speedy trial of certain class of 
offences and for confiscation of the properties 
involved. 
WHEREAS corruption is perceived to be amongst 
the persons holding high political and public offices 
in the State of Orissa; 
AND, WHEREAS, investigations conducted by the 
agencies of the Government disclose prima facie 
evidence, confirming existence of such corruptions; 
AND WHEREAS, the Government have reasons 
to believe that large number of persons, who had 
held or are holding high political and public offices 
have accumulated vast property, disproportionate 
to their known sources of income by resorting to 
corrupt means; 
AND, WHEREAS, it is constitutional, legal and 
moral obligation of the State to prosecute persons 
involved in such corrupt practices; 
AND, WHEREAS, the existing courts of Special 
Judges cannot reasonably be expected to bring the 
trials, arising out of those prosecutions, to a speedy 
termination and it is imperative for the efficient 
functioning of a parliamentary democracy and the 
institutions created by or under the Constitution of 
India that the aforesaid offenders should be tried 
with utmost dispatch; 
AND WHEREAS, it is necessary for the said 
purpose to establish Special Courts to be presided 
over by the persons who are or have been Sessions 
Judge and it is also expedient to make some 
procedural
changes whereby avoidable delay in the 
final determination of the guilt or innocence, of the 
A 
B 
c 
D 
E 
F 
G· 
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1076 
SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
A 
· persons to be tried, is eliminated without interfering 
with the right to a fair trial." 
27. The objects and reasons and various provisions of 
the Act which we have referred to in course of our narration 
would show that there is immense emphasis on corruption by 
B the people holding high political and public offices. The stress 
is on accumulation of wealth disproportionate to the known 
sources of their income by resorting to corrupt practices. 
Corruption at high levels has been taken note of by this Court 
in many a judgment. This Court has also on the basis of reports 
C of certain Commissions/Committees, from time to time, has 
painfully addressed to the burning issue of corruption. In Manoj 
Narula v. Union of India", the Constitution Bench harping on 
the concept of systemic corruption, has been constrained to 
state that systemic corruption and sponsored criminalisation 
D can corrode the fundamental core of elective democracy and, 
consequently, the constitutional governance. A democratic 
republic polity hopes and aspires to be governed by a 
government which is run by the elected representatives who 
do not have any involvement in serious criminal offences or 
E offences relating to corruption, casteism, societal problems, 
affecting the sovereignty of the nation and many other offences. 
28. In Niranjan Hemchandra Sashittal v. State of 
Maharashtra", the Court was compelled to say that corruption 
F 
is
notto be judged by degree, for corruption mothers disorder, 
destroys societal will to progress, accelerates undeserved 
ambitions, kills the conscience, jettisons the glory of the 
institutions, paralyses the economic health of a country, 
corrodes the sense of civility and mars the marrows of 
G governance. The Court furthe'r observed that immoral 
acquisition of wealth destroys the energy of the people 
believing in honesty, and history records with agony how they 
have suffered; and the only redeeming fact is that collective 
'° 
,, (2014) g sec 1 
H 
(2013) 4 sec 642
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1077. 
[DIPAK MISRA, J.] 
sensibility respects such suffering as it is in consonance with 
A 
the constitution?I morality. The emphasis was on intolerance 
of any kind of corruption bereft of its degree. 
29. While dealing with the constitutional validity of Section 
6-A of the Delhi Special Police Establishment Act, 1946, the 
Constitution Bench in Subramanian Swamy v. CB!", clearly 
B 
stated that corruption is an enemy of the nation and tracking 
down corrupt public servants and punishing such persons is a 
necessary mandate of the 1988 Act and it is difficult to justify 
the classification which has been made in Section 6-A because 
the goal of law in the 1988 Act is to meet corruption cases C 
with a very strong hand and all public servants are warned 
through such a legislative measure that corrupt public servants 
have to face very serious consequences. 
30. We have highlighted the facet of corruption and the 0 
object and reasons of the Orissa Act which basically aims to 
curb corruption at high places and in the course of hearing, it 
has been urged by the learned counsel for both the States that 
corruption at higher levels is required to be totally repressed, 
for it destroys the fiscal health of the society and it hampers E 
progress. The learned counsel for the appellants have 
submitted that there cannot be any cavil over the issue that 
corruption should be hindered from all angles, but when the 
State legislature
brings a new law into existence despite an 
earlier law, that is, the 1988 Act, the special legislation has to 
F 
withstand close scrutiny and satisfy the test that is warranted 
under the constitutional parameters. To elaborate, highlighting 
on the existing scene of corruption the State legislature or any 
legislature cannot be allowed to introduce a law which is not 
constitutionally permissible. 
31. The learned counsel appearing for the appellants have 
raised many a submission and their arguments can be 
summaried as follows:-
12 (2014) s sec es2 
G 
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B 
c 
D 
E 
F 
G 
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SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
(A) The Orissa Act has been introduced in the assembly 
as a money bill whereas it does not relT\otely have any 
characteristics of a money bill and hence, it violates the 
mandate of Article 199 of the Constitution. 
(B) The State legislature does not have the authority to 
make provisions for establishment of Special Courts for 
the offences provided. under the Central Act regard being 
had to the language employed in Article 247 of the 
Constitution and hence, it suffers from the vice of the 
said constitutional provision. 
(C) The assent obtained from the President of India, the 
same being imperative, is only in respect of few 
provisions and not for all the provisions of the Orissa Act 
and, therefore, it suffers from substantial illegality which 
has made the Act unconstitutional. 
(D) The provisions contained in the OrissaAct cover many 
a range and sphere that come within the ambit and sweep 
of the Prevention of Money Laundering Act, 2002 and 
has encroached into legislation in the occupied field. That 
apart, there is inherent inconsistency between the 1988 
Act and the Orissa Act and that allows enough room for 
repugnancy, as is understood within the conceptual 
sweep of Article 254(2) of the Constitution, to set in. 
(E) The State legislation makes a distinction between 
the other offences under Section 13 and 13(1 )(e) without 
any inte!ligible differentia between the two categories 
of
offences and in the absence of any justifiable 
classification test, the provision is ultra vires the Article 
14 of the Constitution. 
(F) The corruption on which the fulcrum of argument of 
the State rests for bringing such a legislation is 
impermissible inasmuch as corruption is an all India 
phenomenon and in other States, similarly situated
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1079 
[DIPAK MISRA, J.] 
persons are tried under the 1988 Act, but in Odis ha they A 
are tried under the special provisions for no manifest 
reason. 
(G) The OrissaAct does not define "high political offices" 
and "high public offices" but an attempt has been made 
to define the same in the Rules, but the Rules cannot 
8 
stand as pillars to support the constitutional validity of · 
the legislation. That apart, these terms are extremely 
vague and leave enough room to the executive to adopt 
any kind of discrimination which is impermissible. 
c 
(H) Section 5 of the Orissa Act deals with declaration 
and said provision confers wide and untrammelled 
discretion and unbridled power on the executive to 
choose a particular person or allow the executive to adopt 
pick and choose method thereby clearly inviting the frown 
0 
of Article 14. 
(I) The provisions in the Orissa Act provide for confiscation 
at the pre-trial stage and eventually at pre-conviction 
stage which is extremely harsh and, in fact, it takes away 
the properties of a citizen without any compensation 
E 
thereby it violates Article 300A of the Constitution. 
(J) The concept of confiscation in such a case is 
confiscatory in nature and, therefore, it is extremely 
arbitrary and unreasonable. That apart, the confiscation 
of the properties including the dwelling house disrobes F 
a person from living with dignity having basic requirement 
of life and hence, :t
offends Article 21 of the Constitution. 
The proviso which carves out an exception to enable a 
delinquent officer to retain the dwelling house on payment 
of the market price is in a way deceptive inasmuch as G 
all the properties and bank accounts are seized it is 
well-nigh impossible to offer the market price and the 
legislature has not kept in view that the law does not 
envisage an impossible act to be done. In essence, the 
H
1080 
A 
B 
c 
.D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
criticism is that the proviso does not save the provisions 
from being offensive of Article 21 of the Constitution. 
(K) In the proceedings for confiscation, the accused is 
bound to disclose all his defence at the pre-trial stage 
and that ultimately plays foul of Article 20(3) of the 
Constitution and also Article 21 which encompasses a 
fair trial and does not tolerate any violation of the same. 
(L) The accused persons against whom cases have been 
registered under the 1988Actare compelled to be tried 
under the present OrissaAct as a consequence of which 
they have to face a pre-trial confiscation which was not 
there in the 1988 Act and that clearly violates the basic 
tenet of Article 20( 1 ) of the Constitution, for the provisions 
of the Act cannot be allowed to operate retrospectively 
when it imposes a different kind of punishment. 
(M) The mandate by the legislature in Section 17 that an 
order of stay passed by the appellate court, that is, the 
High Court, shall remain in force for a period of three 
months and would stand automatically vacated, is an 
encroachment on the power of court proceedings and 
there can be no shadow of doubt that such a provision 
creates a dent in the concept of power of judicial review, 
which is constitutionally not allowable. 
(N) The provision contained in Section 19 of the Orissa 
Act which pertains to payment of amount with five per 
cent interest per annum
when the State Government is 
not in a position to return the property and the value of 
the property has to be on the date of confiscation, is 
absolutely arbitrary and unreasonable _which clearly 
invites the discomfort of Article 14 and also clearly 
violates Article 300Aofthe Constitution. 
(0) The reason ascribed to classify the persons holding 
high public office or high political office on the foundation
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1081 
[DIPAK MISRA, J.] 
that there is a necessity for speedy trial is absolutely no A 
justification because there has to be speedy trial in every 
case. 
32. Resisting the aforesaid submissions and defending 
the judgment of the High Court, learned counsel for the State 
of Odisha has submitted as follows:-
B 
(I) The Bill was introduced in the legislature as a money 
bill, regard being had to the confiscation of 
disproportionate assets by way of interim measure and 
various other aspects and, in any case, the introduction c 
of such a bill as a money bill would not invalidate the 
legislation and the High Court is justified in placing 
reliance upon Article 212 of the Constitution. Emphasis 
is laid on legislative independence on this score. 
(II) The interpretation placed by the appellant on Article D 
24 7 is absolutely incorrect because the said Article does 
not enjoin that the Parliament alone in all circumstances 
can provide for additional courts for carrying out the 
provisions of the Central Act. That apart, in the instant 
case, the Special Courts are established after obtaining 
E 
the assentfrom the President and, therefore, the provision 
for establishing the Special Courts by the State 
Government in consultation with the High Court does not 
become unconstitutional. 
(Ill) The submission that the assent has not been obtained 
F 
in respect of all the provisions of the Orissa Act and, 
therefore, the Orissa Act
is invalid and cannot withstand 
scrutiny, is absolutely unsustainable, for the entire 
enactment with notes were sent for the assent of the 
President and the same has been given due assent by G 
the President as required under the Constitution. 
(IV) The submission that the provisions of the OrissaAct 
are repugnant to other enactment as the provisions 
H
1082 
A 
B 
c 
D 
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F 
G 
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SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
encroach upon the offences under the Acts, namely, the 
Prevention of Money Laundering Act, 2002, as amended 
in 2009, is totally untenable as the sphere of operation is 
altogether different. 
(V) The submission that there is no rationale to differently 
try the offence punishable under Section 13(1 )(e) 
separating it from other offences under Section 13 in the 
backdrop of Article 14, is absolutely unacceptable 
inasmuch as there is a gulf of difference between the 
two categories of offences as the offence under Section 
13(1 )( e) relates to amassing of wealth disproportionate 
to the income of the person. 
(VI) The stand that the Act does not define "high political 
office" and "high public office" and hence, confers 
unfettered discretion on the executive is sans substance, 
for the said words are well understood and really do not 
allow any room for exercise of any arbitrary power. Quite 
apart from that, the State Government has framed the 
rules which supplement the Act. In this backdrop, the 
question of any discrimination taking place, as argued, 
is inconceivable. 
(VII) The principle of speedier disposal of corruption 
cases at high levels, especially instituted under Section 
13(1 )(e) of the 1988Act, is definitely a ground to sustain 
the provisions of the Orissa Act. 
(VIII) The plea that provisions, namely, Sections 5 and 6, 
and the provisions pertaining to confiscation being
irrational and discriminatory, are violative of Article 14, 
is wholly unacceptable inasmuch as the classification in 
respect of offences, that is, Section 13(1 )(a) to (1 )(e), 
stand on a different footing and the intelligible differentia 
is clearly demonstrable. The attack on the provisions on 
the plank of unbridled conferment of power on the 
executive to pick and choose pertaining to the
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1083 
[DIPAK MISRA, J.] 
declaration is on an erroneous understanding of the 
A 
provision, forthe provision has to be read in an apposite 
manner to convey the meaning that the State Government 
has extremely limited discretion only t9 see whether the 
offence falls under Section 13(1)(e) or not and the 
moment a person covered under the Act is booked for B 
the offence under Section 13( 1 )( e ), the State Government 
has no further discretion than to make a declaration to 
transfer the case to the Special Court. 
(IX) The challenge to the confiscatory proceeding which 
is 'pro tern' in nature, is devoid of any merit, for it is C 
constitutionally permissible inasmuch as acquisition of 
property by the delinquent is associated with ill-gotten 
money and has no connection with the property which is 
acquired by the person from acceptable component of 
his earnings. The submission that retention of a dwelling D 
house on payment of market price is extremely harsh 
and, in fact, it effectively affects the right to life as is 
understood within the broader umbrella of Article 21 of 
the Constitution is based on erroneous premises. 
(X) The argument that the accused persons being tried 
in respect of other offences under the 1988 Act do not 
face the situation of interim confiscation, whereas the 
accused persons facing trial under the Orissa Act face 
E 
the confiscation proceedings which is arbitrary has no F 
legs to stand upon
if the classification as regards 
offences and the forum is valid, for that, as a natural 
corollary, would structurally protect the interim 
confiscation. 
(XI) The assailment as regards the retro~pective G 
applicability is concerned, may, on a first blush, look quite 
attractive but on a keener scrutiny it has to pale into 
insignificance. The plea that it plays foul of Article 20(1) 
of the Constitution is absolutely unsound. 
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(XII) The provisions relating to confiscation are absolutely 
guided and, in fact, a judicial officer of the rank of 
Sessions Judge or Additional Sessions Judge is 
nominated as the authorised officer and there is an 
appeal provided from his order which would show that 
the confiscation is not done at the whim and caprice of 
the executive but after affording adequate opportunity to 
the delinquent officer. Therefore, it is not hit by Article 1"4 
of the Constitution. 
(XIII) The criticism that the provision for order of stay 
passed by the appellate court, that is, the High Court, 
shall remain in force for a period of three months may be 
treated as a directory provision so as to require the court 
to dispose of the appeal within three months; and the 
order of stay, if any, passed in an appeal shall not remain 
in force beyond the prescribed period of disposal of 
appeal. 
(XIV) The challenge to Section 19 of the Orissa Act which 
pertains to release.of the confiscated property after the 
release order and further provision that if it is not possible 
to return, to pay the value with five per cent interest per 
annum has to be appropriately understood, for this can 
only happen in a very rarest occasion and the words used 
in the provision are to be appropriately understood 
because of some reason beyond control like due to 
natural disaster or some other calamity; and not because 
of any
appropriation of the property by the State 
Government. In essence, the submission is, the said 
provision can be read down to sustain its constitutional 
validity. 
33. First, we shall take up the issue pertaining to the 
introduction of the Bill as a money bill in the State legislature. 
Mr. Vinoo Bhagat, learned counsel appearing for some of the 
appellants, has laid emphasis on the said aspect. Article 199
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1085 
[DIPAK MISRA, J.] 
of the Constitution, defines Money Bills. For our present A 
purpose, sub-article (3) of Article 199 being relevant is 
reproduced below:-
"(3). If any question arises whether a Bill introduced 
in the Legislature of a State which has a Legislative 
Council is a Money Bill or not, the decision of the 
Speaker of the Legislative Assembly of such State 
thereon shall be final." 
We have extracted the same as we will be referring to 
B 
the authorities as regards interpretation of the said sub-article. · c 
34. Placing reliance on Article 199, learned counsel would 
submit that the present Act which was introduced as a money 
bill has remotely any connection with the concept of money 
bill. It is urged by him that the State has made a Sisyphean 
endeavour to establish some connection. The High Court to 
D 
repel the challenge had placed reliance upon Article 212 which 
stipulates that the validity of any proceedings in the Legislature 
of a State shall not be called in question on the ground of any 
alleged irregularity of procedure. 
35. Learned counsel ,for the appellants has drawn E 
inspiration from a passage from Special Reference No. 1 of 
1964", wherein it has been held that Article 212(1) lays down 
that the validity of any proceedings in the legislature of a State 
shall not be called in question on the ground of any alleged 
irregularity of procedure and Article 212(2) confers immunity 
F 
on the
officers and members of the legislature in whom powers 
are vested by or under the Constitution for regulating procedure 
or the conduct of business, or for maintaining order, in the 
legislature from being subject to the jurisdiction of any court in 
respect of the exercise by him of those powers. The Court G 
opined that Article 212(1) seems to make it possible for a 
citizen to call in question in the appropriate Court of law the 
validity of any proceedings inside the Legislative Chamber if 
13 
AIR 1965 SC 745 
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his case is that the said proceedings suffer not from mere 
irregularity of procedure, but from an illegality. If the impugned 
procedure is illegal and unconstitutional, it would be open to 
be scrutinised in a Court of law, though such scrutiny is 
prohibited if the complaint against the procedure is not more 
B than that the procedure was irregular. Thus, the said authority 
has made a distinction between illegality of procedure and 
irregularity of procedure. 
36. Our attention has also been drawn to certain 
paragraphs from the Constitution Bench decision in Raja 
C 
N 
Ram Pal v. Hon'ble Speaker, Lok Sabha and Others . In 
D 
E 
F 
G 
the said case, in paragraphs 360 and 366, it has been held 
thus:-
"360. The question of extent of judicial review of 
parliamentary matters has to be resolved with 
reference to the provision contained in Article 
122( 1) that corresponds to Article 212 referred to 
in M.S.M. Sharma v. Dr. Shree Krishna Sinha,AIR 
1960 SC 1186 [Pandit Sharma (//)]. On a plain 
reading, Article 122(1) prohibits "the validity of any 
proceedings in Parliament" from being "called in 
question" in a court merely on the ground of 
"irregularity of procedure". In other words, the 
procedural irregularities cannot be used by the court 
to undo or vitiate what happens within the four walls 
of the legislature. But then, "procedural irregularity'' 
stands in stark contrast to "substantive illegality' 
which cannot
be found included in the former. We 
are of the considered view that this specific 
provision with regard to check on the role of the 
judicial organ vis-a-vis proceedings in Parliament 
uses language which is neither vague nor 
ambiguous and, therefore, must be treated as the 
constitutional mandate on the subject, rendering 
H 
'4 (2001) 3 sec 1s4
YOGENDRAKUMARJAISWALETC. v. STATE OF BIHAR 1087 
[DIPAK MISRA, J.] 
unnecessary search for an answer elsewhere or 
A 
invocation of principles of harmonious construction. 
xxxxxxxxxx 
366. The touchstone upon which parliamentary 
actions within the four walls of the legislature were 
B 
examined was both the constitutional as well as 
substantive law. The proceedings which may be 
tainted on account of substantive illegality or 
unconstitutionality, as opposed to those suffering 
from mere irregularity thus cannot be held 
c 
protected from judicial scrutiny by Article 122(1) 
inasmuch as the broad principle laid down in 
Bradlaugh, (1884) 12 QBD 271 : 53 LJQB 290: 
50 LT 620, acknowledging exclusive cognizance 
of the legislature in England has no application to 
0 
the system of governance provided by our 
Constitution wherein no organ is sovereign and 
each organ is amenable to constitutional checks 
and controls, in which scheme of things, this Court 
is entrusted with the duty to be watchdog of and 
E 
guarantor of the Constitution." 
37. In this regard, we may profitably refer to the authority 
in Mohd. Saeed Siddiqui v. State of Uttar Pradesh and 
another", wherein a three-Judge Bench while dealing with 
such a challenge, held that Article 212 precludes the courts 
F 
from interfering with the presentation of a Bill for assent to the 
Governor on the ground of non-compliance with the procedure 
for passing Bills, or from otherwise questioning the Bills passed 
by the
House, for proceedings inside the legislature cannot 
be called into question on the ground that they have not been 
G 
carried on in accordance with the Rules of Business. 
Thereafter, the Court referring to Article 199(3) ruled that the 
decision of the Speaker of the Legislative Assembly that the 
15 (2014) 11 sec 415 
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Bill in question was a Money Bill is final and the said decision 
cannot be disputed nor can the procedure of the State 
Legislature be questioned by°virtue of Article 212. The Court 
took note of the decision in Raja Ram Pal (supra) wherein it 
has been held that the proceedings which may be tainted on 
B account of substantive or gross irregularity or unconstitutionality 
are not protected from judicial scrutiny. Eventually, the Court 
repelled the challenge. 
38. In our considered opinion, the authorities cited by 
the learned counsel for the appellants do not render much 
C assistance, for the introduction of a bill, as has been held in 
Mohd. Saeed Siddiqui (supra), comes within the concept of 
"irregularity" and it does come with the realm of substantiality. 
What has been held in the Special Reference No. 1of1964 
(supra) has to be appositely understood. The factual matrix 
D therein was totally different than the case at hand as we find 
that the present controversy is wholly covered by the 
pronouncement in Mohd. Saeed Siddiqui (supra) and hence, 
we unhesitatingly hold that there is no merit in the submission 
so assiduously urged by the learned counsel for the appellants. 
E 
39. The next issue pertains to understanding of ambit 
and sweep of Article 24 7 of the Constitution. The said Article 
reads as follows:-
"Article 247. Power of Parliament to provide 
F 
for the establishment of certain additional 
courts.-
Notwithstanding anything in this Chapter, 
Parliament may by law provide for the 
establishment of any additional courts for the better 
administration of laws made by Parliament or of 
G 
any existing laws with respect to a matter 
enumerated in the Union List." 
H 
40. Relying on the said constitutional provision, learned 
counsel has proponed that the Article empowers the
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1089 
[DIPAK MISRA, J.] 
. 
Parliament to provide for establishment of certain additional 
A 
courts and that too for the better administration of laws made 
by Parliament. He has contended that no part of the 
Constitution confers power on State legislature to create 
additional courts for administering central laws and, therefore, 
the Orissa Act is ultra vires Article 24 7 of the Constitution. He 
B 
has referred to Article 366(10) of the Constitution to buttress 
the proposition that courts can be established in respect of 
central laws only by the Parliament and not by the State 
legislature, for the said Article denudes the State legislature 
the competence to make laws and create additional courts for C 
administering laws made by the Parliament. 
41. The aforesaid submission has to be carefully 
scrutinised. The Article is not to be understood the way it is put 
. forth. Recently, in Madras Bar Association v. Union of India 
and another", a contention was advanced by the Union of D 
India, respondent therein, that Article 247 empowers 
Parliament to establish additional courts for better 
administration in respect of laws passed under List I of the 
Seventh Schedule of the Constitution. After reproducing Article 
247, the Constitution Bench noted the following submissions 
E 
which throw some light:-
'" 
"Referring to the above provision, it was the 
assertion of the learned counsel for the 
respondents, that power was
expressly vested with 
Parliament to establish additional courts for better 
administration of laws. It was submitted that this 
was exactly what Parliament had chosen to do while 
enacting the NTT Act. Referring to the objects and 
reasons, indicating the basis of the enactment of 
the NTT Act, it was the categorical assertion at the 
hands of the learned counsel, that the impugned 
enactment was promulgated with the clear 
understanding that NTT would provide better 
(2014) 10 sec 1 
F 
G 
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adjudication of legal issues arising out of direct/ 
indirect tax laws." 
42. Be it noted, in the said case, the constitutional validity 
of the National Tax Tribunal Act, 2005was called in question 
on many a ground. One of the grounds that was urged by the 
8 
petitioner therein was that the appellate power of the High 
Court in respect of substantial question of law could not have 
been taken away by the Parliament. Defending the legislation, 
the respondents apart from other grounds, had also laid 
emphasis on Article 247 and we have rep_roduced the 
C paragraph from the judgment. It has to be borne in mind that 
this Court was dealing with the abolition of the appellate 
jurisdiction enshrined under Article 260A of the Income Tax 
Act, 1961 by the National Tax Tribunal Act, 2005 which had not 
taken away the power of judicial review. The submission on 
D behalf of the Union of India was that its power to establish the 
courts is created under a statute. Keeping that in view, we 
have to focus on the 1988Act. In the 1988Act, under Section 
3 special Judges stand appointed by the concerned States to 
deal with the offences and the State Governments in 
E consultation with the High Court appoint requisite special 
Judges. Section 3 of the 1988 Act provides that the Central 
Government or the State Government may, by notification in 
the Official Gazette, appoint as many special Judges as may 
be necessary for such area or
areas or for such case or group 
F 
of cases as may be specified in the notification to try any 
offence punishable under this Act; and any conspiracy to 
commit or any attempt to commit or any abetment of any of the 
offences specified in clause (a) of sub-section (1) of the said 
G 
H 
Section. 
43. The present Orissa Act which specifically deals with 
offences under Section 13(1 )(e) and provides for Special 
Courts for the trial of the said offences has got the assent of 
the President. It is to be understood that under the 1988 Act
YOGENDRAKUMARJAISWALETC. v. STATE OF BIHAR 1091 
[DIPAK MISRA, J.] 
the State had the authority to appoint special Judges in respect A 
of all the offences. Presently, one part of the offence has been 
carved out and after obtaining assent Special Courts have 
been established. In view of the fact situation, it does not violate 
Article 24 7. That apart, the language employed in Article 24 7 
does not take away the jurisdiction of the State legislature for B 
constitution of courts. Entry 11-A of List Ill of the Seventh 
Schedule, which provides for "administration of Justice; 
constitution and organisation of all courts, except the Supreme 
Court and the High Courts", has been transferred from Entry 3 
of List I by the 42"' Constitution (Amendment) Act, 1976 in 
C 
order to make it a concurrent power. It was opined in 0. N. 
Mohindroo v. The Bar Council Of Delhi & Ors" that it was 
within the exclusive power of the St.ate. After the amendment 
both Parliament and the State legislature are empowered under 
the Constitution to give the High Court general power including D 
territorial jurisdiction and also take away jurisdiction and powers 
from the High Court which have been conferred by the statutory 
law by enacting appropriate legislation which is referable to 
administration of justice. But, it cannot.take away the power 
specifically conferred on the High Courts under the E 
Constitution. This principle has been stated in the following 
terms in Jamshed N. Guzdarv.
State of Maharashtra18;-
H 
"ln the light of the various decisions referred to 
above, the position is clear that the expression 
"administration of justice" has wide amplitude 
F 
. covering conferment of general jurisdiction on all 
courts including High Court except the Supreme 
9ourt under Entry 11-A of List Ill. It may be also 
noticed· that some of the decisions rendered 
dealing with Entry 3 of List II prior to 3-1-1977 
G 
touching "administration of justice" support the view 
that conferment of general jurisdiction is covere.d 
18 AIR 1968 SC 888 
(2005) 2 sec 591 
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under the topic "administration of justice". After 3-
1-1977 a part of Entry 3 namely "administration of 
justice" is shifted to List Ill under Entry 11-A. This 
only shows that the topic "administration of justice" 
can now be legislated both by the Union as well as 
B 
the State Legislatures. As long as there is no Union 
legislation touching the same topic, and there is no 
inconsistency between the Central legislation and 
State legislation on this topic, it cannot be said that 
the State Legislature had no competence to pass 
C 
the 1987 Act and the 1986 Act." 
44. Interpreting Entry 11-A this Court in the Special 
Courts Bill, 1978" has held that Parliament has concurrent 
power to set up Special Courts for the trial of offences of 
special class. In this regard, we may reproduce the relevant 
D passage from the said authority:-
E 
F 
"44. The challenge to the legislative competence 
of Parliament to provide for the creation of Special 
Courts is devoid of substance. Entry 11-A of the 
Concurrent List relates to "Administration of justice; 
constitution and organisation of all courts, except 
the Supreme Court and the High Court". By virtue 
of Article 246 (2), Parliament has clearly the power 
to make laws with respect to the constitution and 
organisation, that is to say, the creation and setting 
up of Special Courts. Clause 2 of the Bill is therefore 
within the competence of the Parliament to enact." 
45. Be it
noted that a contention was raised that 
Parliament could not have created Special Courts but the 
G Court repelled the said submission and accepted the 
contention that such a power exists with Parliament in view of 
Articles 138(1) and 246(1) and Entries 77, 78 and 99 of List I 
of the Seventh Schedule and Entry 11-Aof List Ill and the courts 
H 
"(1979) 1 sec 380
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1093 
[DIPAK MISRA, J.] 
can be created by the State legislature as well as by the 
A 
Parliament. As has been indicated earlier, Section 3 of the 
1988Act empowers the State Government to constitute special 
courts and when a category of offence has been segregated 
and for the said purpose the Orissa Act has been enacted 
and assent has been taken, the power to constitute special 
B 
courts cannot be found to be fallacious. 
46. Under the scheme of the Constitution, the courts as 
established by the State are to administer the laws made by 
the Parliament as well as by the State legislature and have the 
obligation to carry the administration of justice but the same is C 
subject to Entry 77 and Entry 78 of List I. Entry 77 and Entry 
78 of List I read as follows:-
"Entry 77. Constitution, organisation, jurisdiction 
and powers of the Supreme Court (including 
contempt of such Court}, and the fees taken therein; 
persons entitled to practise before the Supreme 
Court. 
Entry 78. Constitution and organisation (including 
va,~ations) of the High Courts except provisions as 
to officers and servants of High Courts; persons 
entitled to practise before the High Courts." 
47. Entry 46 of List Ill in this context needs to be 
reproduced:-
. "Entry 46. Jurisdiction and powers of all courts, 
except the Supreme Court, with respect to any of 
the matters in this List." 
Entry 65 of List II is worth referring to :-
D 
E 
F 
G 
"Entry 65
.. Jurisdiction and powers of all courts, except 
the Supreme Court, with respect to any of the matters in 
this List." 
48. The aforesaid entries :nake it clear that as regards 
jurisdiction and powers of the Supreme Court, the Parliament H
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has exclusive legislative competency and as far as the 
jurisdiction other than Supreme Court and the High Courts is 
concerned, the power can be exercised by the Union and the 
State legislature. The purpose of Article 24 7, which 
commences with a non-obstante clause, is to confer power 
B on the Parliament to create additional courts for the better 
administration of a particular Union law, but it cannot be said 
that the State cannot make laws for adjudication and 
administration of justice in respect of a parliamentary 
legislation more so, when initially power was conferred under 
C Section 3 of the 1988 Act and assent has been accorded for 
establishment of Special Courts for adjudication of the offence. 
Let it be made clear that we have so answered regard being 
had to the offence being carved out and a different category of 
Special Courts are constituted to try the said offence. It does 
o not take away the power already conferred under Section 3 of 
the 1988Act. 
49. The next aspect we shall dwell upon pertains to 
repugnancy and the nature of "assent" obtained by the State 
Government from the President under Article 254(2) of the 
E Constitution. The submission of the learned counsel forthe 
appellants is that though the State legislature reserved it for 
presidential assent, yet assent has not been taken in respect 
of the entire Orissa Act and also in respect of other laws, 
namely, the Prevention of
Money-Laundering Act, 2002, etc. 
F as a consequence of which it will ultimately lead to a situation 
of anomaly and, therefore, there is repugnancy in respect of 
existing legislations in similar fields enacted by the Parliament 
and the Orissa Act. 
G 
50. Article 254 deals with inconsistency between laws 
made by the Parliament and laws made by the Legislature of 
States. Article 254(2) deals with laws made by the State 
legislature in respect of the matters enumerated in the 
Concurrent List. The issue of repugnancy arises when the 
H subjects come within List Ill of the Seventh Schedule. In
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1095 
[DIPAK MISRA, J.] 
Hoechst Pharmaceuticals Ltd. & Another v. State of Bihar A 
and Others'°, the Court referred to the authority in Deep 
Chand v. The State of Uttar Pradesh & Ors." wherein 
Subba Rao, J., analysing the ratio of earlier authorities, had 
taken note of three tests evolved by Nicholas in his "Australian 
Constitution" as regards inconsistency or repugnancy. The 
B 
three tests are (i) there may be inconsistency in the actual terms 
of the competing statutes; (ii) though there may be no direct 
conflict, a State law may be inoperative because \he 
Commonwealth law, or the award of the Commonwealth Court, 
is intended to be a complete exhaustive Code; and (iii) even C 
· in the absence of intention, a conflict may arise when both State 
and Commonwealth seek to exercise their powers over the 
same subject-matter. The Court had placed reliance upon 
Ch. Tika Ramji & Ors. v. The State of Uttar Pradesh & 
22 
O~.. 
D 
51. Thereafter, the Court proceeded to state that:-
"The question of repugnancy under Article 254(1) 
between a law made by Parliament and a law made 
by the State Legislature arises only in case both 
the legislations occupy the same field with respect 
to one of the matters enumerated in the Concurrent 
List, and there is direct conflict between the two 
laws. It is only when both these requirements are 
fulfilled that the State law will, to the extent of 
repugnancy become void. Article 254(1) has
no 
application to cases of repugnancy due to 
overlapping found between List II on the one hand 
and List I and List Ill on the other. If such overlapping 
exists in any particular case, the State law will be 
ultra vi res because of the non-obstante clause in 
Article 246(1) read with the opening words "subject 
-
:, AIR 1983 SC 1019 = 1983 (4) sec 45 
22 (1959) Supp. 2 SCR 8 
(1956) SCR 393 
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to" in Article 246(3). In such a case, the State law 
will fail not because of repugnance to the Union law 
but due to want of legislative competence. It is no 
doubt true that the expression "a law made by 
Parliament which Parliament is competent to enact" 
B 
in Article 254(1) is susceptible of a construction that 
repugnance between a State law and a law made 
by Parliament may take place outside the 
concurrent sphere because Parliament is 
competent to enact law with respect to subjects 
C 
included in List Ill as well as 'List I' But if Article 
254(1) is read as a whole, it will be seen that it is 
expressly made subject to clause (2) which makes 
reference to repugnancy in the field of Concurrent 
List-in other words, if clause (2) is to be the guide 
D 
in the determination of scope of clause (1 ), the 
repugnancy between Union and State law must 
be taken to refer only to the Concurrent field. Article 
254( 1) speaks of a State law being repugnant to 
(a) a law made by Parliament or (b) an existing law." 
E 
52. Thus, it is settled in law th~t the State law may become 
repugnant when there is a direct conflict between the two 
provisions. In this regard, reference to the authority in 
Engineering Kamgar Union v. Electro Steels Castings Ltd. 
and Another" would be instructive. It has been held therein 
F that recourse to the said principles, however, would be resorted 
to only when there exists direct conflict
between two provisions 
and not otherwise. Once it is held that the law made by the 
Parliament and the State Legislature occupy the same field, 
the subsequent legislation made by the State which had 
G received the assent of the President of India indisputably would 
prevail over the parliamentary Act when there exists direct 
conflict between two enactments. It has been further observed 
that both the laws would ordinarily be allowed to have their 
H "(2004) e sec 36
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1097 
[DIPAK MISRA, J.] 
play in their own respective fields; however, in the event there A 
exists any conflict, the parliamentary Act or the $late Act shall 
prevail over the other depending upon the fact as to whether 
the assent of the President has been obtained therefor or not. 
53. There can be a situation where two enactments come 
into the field where obedience to each of them may be possible B 
without disobeying the other. Repugnancy may, however, come 
in if one statute commands anything to be done and the other 
enactment may say the contrary and that even both the laws 
cannot co-exist together. In such cases, as has been ruled in 
M.P. AIT Permit Owners Association and Another v. State C 
of M.P.", the law made by Parliament shall prevail over the 
State law. Same principle has been reiterated in Govt. of A.P. 
and Another v. J.B. Educational Society and Another". 
54. Thus viewed, repugnancy arises when there is a clear 0 
and direct inconsistency between the central law and the State 
law and such inconsistency is irreconcilable. It is because in 
such a situation there is a direct collision with the Central Act 
or brings about a situation where obeying one would lead to 
disobeying the other. In Dharappa v. Bijapur Coop. Milk E 
Producers Societies Union Ltd." it has been spelt out that 
clause (2) of Article 254, however, provides that where a 
law made by the legislature of a State with respect to one 
of the
matters enumerated in the Coricurrent List, contains 
any provision repugnant to an existing law with respect to that F 
matter, then, the law so made by the legislature of such State 
shall, if it has been reserved for the consideration of the 
President and has received his assent, prevail in that State. 
The question of repugnaocy can arise only with reference to a 
legislation made by Parliament falling under the Concurrent G 
List or an existing law with reference to one of the matters 
enumerated in the Concurrent List. If a law made by the State 
Legislature covered by an entry in the State List incidentally 
" (2004) 1 sec 320 
"(2005) 3 sec 212 
"(2007) 9 sec 109 
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[2015) 14 S.C.R. 
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touches any of the entries in the Concurrent List, Article 254 is 
not attracted. But where a law covered by an entry in the State 
List (or an amendment to a law covered by an entry in the 
State List) made by the State Legislature contains a provision, 
which directly and substantially relates to a matter enumerated 
B in the Concurrent List and is repugnant to any provision of an 
existing law with respect to that matter in the Concurrent List 
then such repugnant provision of the State law will be void. 
Such a provision of law made by the State Legislature touching 
upon a matter covered by the Concurrent List, will not be void 
C if it can coexist and operate without repugnancy with "the 
provisions of the existing law. 
55. It needs no special emphasis to state that the issue 
of repugnancy would also arise where the law made by the 
Parliament and the law made by the State legislature occupy 
D the same field. It has been so held in Sitaram & Bros. v. 
State of Rajasthan". 
56. In this context, reference to M.P. Shikshak Congress 
(supra) would be fruitful. While repelling the plea of repugnancy, 
E it has been held that under Article 254(1) of the Constitution, if 
any provision of a law made by the legislature of a State is 
repugnant to any provision of a law made by the Parliament, 
which Parliament is competent to enact, then subject to the 
provisions of clause (2), the law made by Parliament, whether 
F 
passed
before or after the law made by the legislature of such 
State shall prevail and the law made by the legislature of the 
State shall, to the extent of the repugnancy, be void. The ordinary 
rule, therefore, is that when both the State Legislature as well 
as Parliament are competent to enact a law on a given subject, 
G it is the law made by Parliament which will prevail. The 
exception which is carved out is under sub-clause (2) of Article 
254. Under this sub-clause (2), where a law made by the 
legislature of a State with respect to one of the matters 
enumerated in the Concurrent List contains any provision 
H 
271995(1)SCC257
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1099 
[DIPAK MISRA, J.] 
repugnant to the provisions of an earlier law made by A 
Parliament, then the law so made by the legislature of such 
State shall, if it has been reserved forthe consideration of the 
President and has received his assent, prevail in the State. 
57. Another aspect with regard to repugnancy and the 
validity of the State legislation may be stated. If there is a 
B 
parliamentary legislation and the law enacted by the State 
legislation can co-exist and operate where one Act or the 
other is not available, then there is no difficulty in making 
the State law on the fact situation available. It has been so 
held in EID Parry(/) Ltd. v. G Omkar Murthy and Others" C 
and Saurashtra Oil Mills Assn. v. State of Gujarat". When 
a situation crops up before the court pertaining to applicability 
of a parliamentary legislation and any enactment or law 
enacted by the State legislature for consideration, the effort 
of the court should be to see that the provisions of both the D . 
Acts are made applicable, as has ruled in /magic Creative 
(PJ Ltd. v. cci"'. 
58. Having stated the proposition where and in which 
circumstances the principle of repugnancy would be attracted 
E 
and the legislation can be saved or not saved, it is necessary 
to focus on clause (2) of Article 254. In Hindustan Times v. 
State of U.P.", after referring to the earlier judgments, it has 
been held that clause 254(2) carves out an exception
and, that 
is, if the Presidential assent to a State law which has been 
F 
reserved for his consideration is obtained under Article 200, it 
will prevail notwithstanding the repugnancy to an earlier law of 
the Union. The relevant passage of the said authority is 
extracted below:-
"As noticed hereinbefore, the State of Uttar Pradesh 
G 
intended to make a legislation covering the same 
: (2001) 4 sec 68 
:: ~~~~~l ~ ~gg ~~~ 
(2003) 1 sec 591 
H
1100 
SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
A 
field but even ifthe same was to be made, it would 
have been subject to the parliamentary legislation 
unless assent of the President of India was obtained 
in that behalf. The State executive was, thus, 
denuded of any power in respect of a matter with 
B 
respect whereto Parliament has power to make 
Jaws, as its competence was limited only to the 
matters with respect to which the legislature of the 
State has the requisite legislative competence. 
Even assuming that the matter relating to the welfare 
C 
of the working journalists is a field which falls within 
Entry 24 of the Concurrent List, unless and until a 
legislation is made and assent of the President is 
obtained, the provisions of the 1955 Act and the 
Working Journalists (Fixation of Rates and Wages) 
D 
Act, 1958 would have prevailed over the State 
enactment." 
59. The issue in the instant case is that the State 
Government had not complied with the requisite procedure 
for obtaining the assent of the President. The criticism 
E advanced by the learned counsel for the appellants is that in 
the letter written by the State Government to the competent 
authority for obtaining assent only certain provisions of the 
Orissa Act were mentioned but there is no reference to 
other provisions and certain other legislations, which also 
F 
cover the same field. To bolster the said submission, reliance 
has been placed on the Constitution Bench decision in Kaiser-
1-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra 
North) Ltd.". In the said case, the majority dealt with the 
jurisdiction of the court is to see the record and nature of the 
G assent sought by the State. The Court scanned the anatomy of 
Article 254(2) and after analyzing the same, opined that it can 
be stated that for the State law to prevail, the requirements 
that are to be satisfied are; (a) law made by the legislature of 
" 
H 
(2002) a sec 1 a2
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1101 
[DIPAK MISRA, J.] 
a State should be with respect to one of the matters A 
enumerated in the Concurrent List; (b) it contains any provision 
repugnant to the provision of an earlier law made by Parliament 
or an existing law with respect to that matter; (c) the law so 
made by the legislature of the State has been reserved for the 
consideration of the President; and (d) it has received "his 
B 
assent". 
60. After so stating, the Court proceeded to lay down as 
follows:-
"14. In view of the aforesaid requirements, before 
obtaining the assent of the President, the State 
Government has to point out that the law made by 
the State Legislature is in respect of one of the 
matters enumerated in the Concurrent List by 
mentioning entry/entries of the Concurrent List and 
that it contains provision or provisions repugnant 
to the law made by Parliament or existing law. 
Further, the words "reserved for consideration" 
would definitely indicate that there should be active 
application of mind by the President to the 
repugnancy pointed out between the proposed 
State law and the earlier law made by Parliament 
and the necessity of having such a law, in the facts 
and circumstances of the matter, which is repugnant 
to a law enacted by Parliament prevailing in a State. 
The word "consideration" would manifest that after 
careful thinking over and due application of mind 
regarding the necessity of having State law which 
is
repugnant to the law made by Parliament, the 
President may grant assent. This aspect is further 
reaffirmed by use of the word "assent" in clause 
(2), which implies knowledge of the President to 
the repugnancy between the State law and the 
earlier law made by Parliament on the same 
c 
D 
E 
F 
G 
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1102 
SUPREME COURT REPORTS 
(2015] 14 S.C.R. 
A 
subject-matter and the reasons for grant of such 
assent. The word "assent" would mean in the 
context as an expressed agreement of mind to what 
is proposed by the State. 
B 
c 
D 
E 
F 
G 
H 
x 
x 
x 
x 
x 
20 .... As discussed above before grant of the 
assent, consideration of the reasons for having 
such law is necessary and the consideration would 
mean consideration of the proposal made by the 
State for the law enacted despite it being repugnant 
to the earlier law made by Parliament on the same 
subject. If the proposal made by the State is limited 
qua the repugnancy of the State law and law or laws 
specified in the said proposal, then it cannot be 
said that the assent was granted qua the 
repugnancy between the State law and other laws 
for which no assent was sought for. Take for 
illustration -
that a particular provision, namely, 
Section 3 of the State law is repugnant to enactment 
A made by Parliament; other provision, namely, 
Section 4 is repugnant to some provisions of 
enactment B made by Parliament and Sections 5 
and 6 are repugnant to some provisions of 
enactment C and the State submits proposal 
seeking "assent" mentioning repugnancy between 
the State law and provisions of enactments A and 
B without mentioning anything with regard to 
enactment C. In this set of circumstances, if the 
assent of the President is obtained, the State law 
with regard to enactments A and B would prevail 
but with
regard to C, there is no proposal and hence 
there is no "consideration" or "assent". Proposal 
by the State pointing out repugnancy between the 
State law and of the law enacted by Parliament is a
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1103 
[DIPAK MISRA, J.] 
sine qua non for "consideration" and "assent". If 
A 
there is no proposal, no question of "consideration" 
or "assent" arises. For finding out whether "assent" 
given by the President is restricted or unrestricted, 
the letter written or the proposal made by the State 
Government for obtaining "assent" is required to 
B 
be looked into:" 
61. Proceeding further, the Court placed reliance on 
P. N. Krishna Lal v. Govt. of Kera/a" and Hoechst 
Pharmaceuticals Ltd. (supra) and ruled that it cannot be said 
that the High Court committed any error in looking at the file of C 
the correspondence Ext. F collectively for finding out -
for 
what purpose "assent" of the President to the extension of Acts 
extending the duration of the Bombay Rent Act was sought for 
and given. After so stating, the Court observed:-
"29. We further make it clear that granting of assent 
under Article 254(2) is not exercise of legislative 
power of the President such as contemplated under 
Article 123 but is part of the legislative procedure. 
· Whether procedure prescribed by the Constitution. 
before enacting the law is followed or not can always 
be looked into by the Court. 
30. Finally, we would observe that the challenge of 
this nature could be avoided if at the 
commencement of the Act, it is stated that the Act 
has received the assent with regard 
to the 
repugnancy between the State law and specified 
Central law or
laws." 
D 
E 
F 
62. In this regard, we may extract a passage from P.N. 
Krishna Lal (supra) wherein the Court, after referring to the G 
decision in Gram Panchayat, Jamalpur v. Ma/winder 
Singh" ruled that:-
. 
· 
. 
33 1995 Supp. (2) sec 187 
,. (1985) 3 sec 661 
H
1104 
SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
A 
" ... it is clear that this Court did not intend to hold 
that it is necessary that in every case the assent of 
the President in specific terms had to be sought 
and given for special reasons in respect of each 
enactment or provision or provisions. On the other 
B 
hand, the observation clearly indicates that if the 
assent is sought and given in general terms it would 
be effective for all purposes. In other words, this 
Court observed that the assent sought for and given 
by the President in general terms could be effective 
C 
for all purposes unless specific assent is sought 
and given in which event it would be operative only 
to that limited extent." 
63. In Rajiv Sarin and Another v. State of 
Uttarakhand and Others", another Constitution Bench 
D adverted to the earlier pronouncements on the concept of 
"assent of the President" including the authority in Kaiser-1-
Hind (P) Ltd. (supra) and observed that in the said case this 
Court made it clear that it was not considering whether the 
assent of the President was rightly or wrongly given; and 
E whether the assent was given without considering the extent 
and the nature of the repugnancy and should be taken as no 
assent at all. In Rajiv Sarin (supra), the Court reproduced 
paragraph 27 from Kaiser-I-Hind (P) Ltd. (supra), which is to 
F 
G 
the following effect:-
" In this case, we have made it clear that we are not 
considering the question that the assent of the
President was rightly or wrongly given. We are also 
not considering the question that-whether 'assent' 
given without considering the extent and the nature 
of the repugnancy should be taken as no assent at 
all. Further, in the aforesaid case, before the Madras 
High Court also the relevant proposal made by the 
H 
"(2011) s sec 10s
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1105 
[DIPAK MISRA, J.] 
State was produced. The Court had specifically 
A 
arrived at a conclusion that Ext. P-12 shows that 
Section 10 of the Act has been referred to as the 
provision which can be said to be repugnant to the 
provisions of the Code of Civil Procedure and the 
Transfer of Property Act, which are existing laws 
B 
on the concurrent subject. After observing that, the 
Court has raised the presumption. We do not think 
that it was necessary to do so. In any case as 
discussed above, the essential ingredients of 
Article 254(2) are: ( 1) mentioning of the entry/ 
C 
entries with respect to one of the matters 
enumerated in the Concurrent List; (2) stating 
repugnancy to the provisions of an earlier law made 
by Parliament and the State law and reasons for. 
having such law; (3) thereafter it is required to be 
D 
reserved for consideration of the President; and ( 4) 
receipt of the assent of the President." 
64. Thereafter, the Constitution Bench referred to 
paragraph 65 of the authority in Kaiser-I-Hind (P) Ltd. (supra) 
wherein it has been stated that "pointed attention" of the 
E 
President is required to be drawn to the repugnancy and the 
reasons for having such a law, despite the enactment by 
Parliament, has to be understood. After reproducing paragraph 
· 65 in entirety, the larger Bench in Rajiv Sarin (supra) 
observed:-
F 
"64. If it is to be contended that Kaiser(supra) lays 
down the proposition that
there can be no general 
Presidential assent, then such an interpretation 
would be clearly contrary to the observation of the 
Bench in para 27 itself where it states that it is not 
examining the issue whether such an assent can 
be taken as an assent. 
G 
H
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SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
A 
65. Such an interpretation would also open the 
judgment to a charge of being, with respect, per 
incuriam as even though while noting the Jamalpur 
case (supra), it overlooks the extracts in Jamalpur 
case (supra) dealing with the aspect of general 
B 
assent: (SCC p. 669, para 12) 
c 
D 
"12 . ... The assent of the President under Article 
254(2) of the Constitution is not a matter of idle 
formality. The President has, at least, to be 
apprised of the reason why his assent is sought 
if, there is any special reason for doing so. If the 
assent is sought and given in general terms so 
as to be effective for all purposes, different 
considerations may legitimately arise. But if, as 
in the instant case, the assent of the President 
is sought to the law for a specific purpose, the 
efficacy of the assent would be limited to that 
purpose and cannot be extended beyond it." 
65. Having delved into the principle of obtaining assent, 
E the controversy at hand is required to be dealt with on the 
touchstone of the said principles. The competent authority of 
the State had written to the appropriate authority for obtaining 
assent. We think it apt to reproduce the said letter:-
"N. Sanyal, IAS 
F Commissioner-cum-Secretary 
To Governor, Orissa, 
No. 7876/SC(Con) 
Dated the 28 October 2006 
G 
To, 
The Secretary to Government of India, 
Ministry of Home Affairs, 
New Delhi-1 
H 
Sub: Proposal to obtain assent of the President of
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1107 
[DIPAK MISRA, J.] 
India under Article 254(2) of the Constitution A 
of India to the Orissa Special Courts Bill, 2006 
Sir, 
I am directed to say that in order to tackle the menace of 
corruption in public life and since the existing courts lack B 
necessary machineries for speedy termination of the trial 
of the offences under Clause (e) of sub section (1 )of 
Section 13 of the Prevention of Corruption Act, 1988, it 
is considered necessary to establish Special Courts by 
enacting a Special legislation. Accordingly, the "Orissa C 
Special Courts Bill, 2006" was passed by the State 
Legislature on 11.8.2006. 
2. The Bill seeks to enable the State Government to 
establish Special Courts to be presided over by the 
persons who are or have been Session Judge in the State D 
for trial of offences committed under Clause (e) of sub-
section (1) of Section 13 of the Prevention of Corruption 
Act, 1988. To eradicate corruption from high public and 
political offices properties alleged to have been acquired 
out of such alleged corruption need to be confiscated. 
E 
So for confiscation of property of the alleged offender, 
provision has been made for appointment of authorized 
officer who is or has been an Additional Session Judge. 
3. The sub matter of Legislation is relatable to Entry 11-
A read with Entries 1 and 2 of List Ill (Concurrent List) of F 
the Seventh Schedule to the Constitution. Accordingly, 
the State Legislature
has enacted the said law. But the 
provisions contained in Clauses 6, 7. 22 and 26 of the 
Bill are repugnant to the existing provisions of certain 
laws, namely, the prevention of Corruption Act. 1988. the G 
Code of Criminal Procedure, 1973 and the Criminal Law 
Amendment Ordinance, 1944. therefore. the Bill as 
passed by the State Legislature is required to be reserved 
for the consideration and assent of the President of India 
H
1108 
A 
G 
c 
D 
SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
under Article 254(2) of the Constitution. 
4. It is further stated that the aforesaid Bill is similar to 
the Orissa $pecial Courts Act, 1990 earlier assented 
to by the President of India under Article 254(2) of the 
Constitution,, But it was subsequently repealed by the 
Orissa Special Courts (Repent and Special Provision) 
Act, 199f'. 
5. The Goverliv1 of Orissa has been pleased to reserve 
the Bill for consideration and assent of the President of 
India under Article 254(2) of the Constitution. 
6. Three authenticated copies of the Governor of Orissa 
alongwith another six copies of such Bill as introduced 
and passed by the Orissa Legislative Assembly are 
forwarded herewith, which may kindly be placed before 
the President of India for favour of his kind consideration 
and assent. 
7. The authenticated copies of the Bill may kindly be 
returned after the assent of the President is obtained at 
E 
any earlier date. Six copies of the letter of the State 
Government are enclosed for your reference. 
F 
G 
H 
8. A Certificate in the prescribed proforma is also 
enclosed. 
Encl: As above 
yours faithfully, 
Commissioner-cum-Secretary to 
the Governor, Orissa" 
[emphasis supplied] 
66. On a perusal of the aforesaid letter, it is demonstrable 
that the State Government had sought assent of the President 
in respect of certain provisions of the 1988 Act, the Code of 
Criminal Procedure, 1973 and the Criminal Law
Amendment

YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1109 
[DIPAK MISRA, J.] 
Ordinance, 1944. On a ~crutiny of the judgment of the High A 
Court, it is manifest that on behalf of the State certain 
communications were placed on record from which the High 
Court was satisfied that the assent had been properly obtained. 
In the course of hearing, we have also found that the entire Bill 
was sent for the assent with the aforesaid forwarding letter B 
and there has been correspondence thereafter. On a perusal 
of tile communication and the finding recorded by the High 
Court and keeping in view the purpose of communication and 
taking note of the fact that the entire Bill was sent to the 
President for obtaining assent, it can safely be concluded that C 
the President was apprised of the reason when the assent 
was sought. The assent has been given in general terms so 
as to be effective.for all purposes. It cannot be said that the 
qeneral assent by the President was not obtained. Thus, we 
Jre of the considered opinion that the provisions of the Orissa D 
Act are definitely not repugnant to the 1988 Act, the Code of 
Criminal Procedure, 1973 and the Criminal Law Amendment 
Ordinance, 1944. 
67. It is submitted that there is repugnancy between 
Orissa Act and the Prevention of Money-Laundering Act, 2002. 
E 
It is urged by the learned counsel for the appellants that 
whatever has been mentioned in the letter or other provisions 
may not be repugnant but definitely the Act is
repugnant to 
Cther enactment like the Prevention of Money-Laundering Act, 
7002, as amended in 2009. It has been stated by the F 
Constitution Bench in M. Karunanidhi (supra) that in order to 
decide the question of repugnancy it must be shown (i) that 
the two enactments contain inconsistent and irreconcilable 
provision so that they cannot stand together or operate in the 
same field; (ii) that there can be no repeal by implication unless G 
the inconsistency appears on the face of the two statutes; (iii) 
that where the two statues occupy a particular field, but there 
is room or possibility of both the statutes operating in the same 
filed without coming into collusion with each other, no 
H
1110 
SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
A 
repugnancy results; (iv) that where there is no inconsistency 
but the statute occupying the same field seeks to create distinct 
and separate offences, no question of repugnancy arises and 
both the statute continue to operate in the same field. 
68. In J.B. Educational Society(supra)the Court, after 
8 
referring to M. Karunanidhi (supra), laid down the following 
principle:-· 
"Parliament has exclusive power to legislate with 
respect to any of the matters enumerated in List I, 
c 
notwithstanding anything contained in clauses (2) and 
(3) of Article 246. The non obstante clause under Article 
246( 1) indicates the predominance or supremacy of the 
law made by the Union 
Legislature in the event of an overlap of the law made 
D 
by Parliament with respect to a matter enumerated in 
List I and a law made by the State Legislature with 
respect to a matter enumerated in List II of the Seventh 
Schedule." 
69. On the principles enumerated' in the aforesaid 
E pronouncements, the submissions put forth by the learned 
counsel are to be appreciated. The Prevention of Money-
Laundering Act was enacted in 2002 and an amendment was 
brought in 2009. We may refer to the objects and reasons of 
F the Prevention of Money-Laundering Act, 2002 which read as 
follows:-
"An Act to prevent money-laundering and to provide for 
confiscation of property derived from, or involved in, 
money-laundering and for matters connected therewith 
G 
or
incidental thereto ... " 
H 
70. Section 2(p) defines "money laundering" and Section 
3 which has connection with Section 2(p) defines "offence of 
money laundering". Sections 3 and 4 read as follows:-
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1111 
[DIPAK MISRA, J.] 
"Section 3. Offence of money-laundering.-
A 
Whosoever directly or indirectly attempts to indulge or 
knowingly assists or knowingly is a party or is actually· 
involved in any process or activity connected with 
proceeds of crime including its concealment, 
possession, acquisition or use and projecting or B 
claiming it as untainted property shall be guilty of 
offence of money-laundering. 
Section 4. Punishment for money-laundering.-
Whoever commits the offence of money-laundering shall c 
be punishable with rigorous imprisonment for a term 
which shall not be less than three years but which may 
extend to seven years and shall also be liable to fine: 
Provided that where the proceeds of crime involved in 
money-laundering relates to any offence specified under D 
· paragraph 2 of Part A of the Schedule, the provisions of 
this section shall have effect as if for the words "which 
may extend to seven years", the words "which may 
extend to ten years" had been substituted." 
71. Section 5, which provides for attachment of property E 
involved in the money laundering, stipulates that where the 
Director or any other officer not below the rank of Deputy 
Director authorised by the Director for the purposes of this 
section, has reason to believe, on the basis of material in his 
possession, that (a) any person is in possession of any_ F 
proceeds of crime; and (b) such proceeds of crime are likely 
to be
concealed, transferred or dealt with in any manner which 
may result in frustrating any proceedings relating to 
confiscation of such proceeds of crime under Chapter Ill, he 
may, by order in writing, provisionally attach such property for G 
a period not exceeding one hundred and eighty days from the 
date of the order, in such manner as may be prescribed, 
• 
provided that no such order of attachment shall be made unless, 
in relation to the scheduled offence, a report has been 
H
1112 
SUPREME COURT REPORTS 
[2015] 14S.C.R. 
A forwarded to a Magistrate under section ~ 73 of the Code of 
Criminal Procedure, 1973 (2of1974), ora complaint has been 
· filed by a person authorised to investigate the offence 
mentioned in that Schedule, before a Magistrate or court for 
taking cognizance of the scheduled offence, as the case may 
B be, or a similar report or complaint has been made or filed 
under the corresponding law of any other country; provided 
further that, notwithstanding anything contained in first proviso, 
any property of any person may be attached under this section 
if the Director or any other officer not below the rank of Deputy 
C Director authorised by him for the purposes of this section has 
reason to believe (the reasons for such belief to be recorded 
in writing) on the basis of material in his possession, that if 
such property involved in money-laundering is not attached 
immediately under Chapter Ill, the non-attachment of the 
D property is likely to frustrate any proceeding under this Act. 
Sub-section (2) provides that the Director, or any other officer 
not below the rank of Deputy Director, shall, immediately after 
attachment under sub-section ( 1 ), forward a copy of the order, 
along with the material in his possession, referred to in that 
E sub-section, to the Adjudicating Authority, in a sealed 
envelope, in the manner as may be prescribed and such 
Adjudicating Authority shall keep such order and material for 
such
period as may be prescribed. Sub-section (3) provides 
that every order of attachment made under sub-section ( 1) shall 
F cease to have effect after the expiry of the period specified in 
· that sub-section or on the date of an order made under sub-
section (2) of section 8, whichever is earlier and sub-section 
(4) says that nothing in this section shall prevent the person 
interested in the enjoyment of the immovable property attached 
G under sub-section (1) from such enjoyment. Sub-section (5) 
stipulates that the Director or any other officer who provisionally 
attaches any property under sub-section (1) shall, within a 
period of thirty days from such attachment, file a complaint 
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1113 
[DIPAK MISRA, J.] 
stating the facts of such attachment before the Adjudicating A 
Authority. 
72. Section 8 deals with adjudication and provides that 
(1) on receipt of a complaint under sub-section (5) of section 
5, or ap"plications made under sub-section (4) of section 17 or 
under subsection ( 10) of section 18, if the Adjudicating Authority 8 
has reason to believe that any person has committed an 
offence under section 3 or is in possession of proceeds of 
crime, he may serve a notice of not less than thirty days on 
such person calling upon him to indicate the sources of his 
income, earning or assets, out of which or by means of which C 
he has acquired the property attached under sub-section (1) 
of section 5, or, seized 2 or frozen under section 17 or section 
18, the evidence on which he relies and other relevant 
information and particulars, and to show cause why all or any 
of such properties should not be declared to be the properties D 
involved in-money-laundering and confiscated by the Central 
Government. There are certain provisions appended to the 
said Section. Sub-section 2 stipulates that the Adjudicating 
Authority shall, after considering the reply, if any, to the notice 
issued under subsection (1) and hearing the aggrieved person 
E 
and the Director or any other officer authorised by him in this 
behalf, and taking into account all relevant materials placed 
on record before him, by an order,
record a finding whether all 
or any of the properties referred to in the notice issued under 
sub-section (1) are involved in money-laundering. Thereafter, 
F 
the provisions of the said Act deal with the adjudication by the 
Adjudicating Authority as regards the property involved in the 
Prevention of Money-Laundering Act, confirmation of 
attachment of property or retention or freezing of the property, 
taking over of the possession by the competent authority, the G 
order to be passed by the Special Court after conclusion of 
the trial of the offence, the resultant effect where the Special 
Court finds the offence of money laundering has not taken 
place, the circumstances in which the property would vest in 
H
1114 
SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
A the Central Government free from all encumbrances, the 
management of confiscated properties during the interregnum 
period, the role of the Administrator, the power of Central 
Government to dispose of the property, the role attributed to 
various authorities to conduct search and seizure at various 
B places, the action to be taken in a situation while it is not 
practical to seize a frozen property, the procedure for seizure 
and power of arrest, etc. 
73. Section 20 of the said Act deals with retention of 
property. The said provision stipulates about the authority who 
C can seize and freeze money to a maximum period and 
eventually pass a final order. Section 25 deals with 
establishment of an Appellate Tribunal and Section 26 provides 
for appeal to the said Tribunal. Section 42 provides for appeal 
to the High Court from the order passed by the Tribunal. 
D Section 43 provides for designation of Special Courts. The 
E 
F 
G 
H 
said provision being relevant is reproduced below:-
"Section 43. Special Courts.-( 1) The Central 
Government, in consultation with the Chief Justice 
of the High Court, shall, for trial of offence 
punishable under section 4, by notification, 
designate one or more Courts of Session as 
Special Court or Special Courts for such area or 
areas or for such case or class or group of cases 
as may be specified in 
the notification. 
Explanation.-ln this sub-section, "High Court" 
means the High
Court of the State in which a 
Sessions Court designated as Special Court was 
functioning immediately before such designation. 
(2) While trying an offence underthisAct, a Special 
Court shall also try an offence, other than an offence 
referred to in sub-section (1 ), with which the 
accused may, under the Code of Criminal 
Procedure, 1973 (2 of 1974), be charged at the 
same trial.
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1115 
[DIPAK MISRA, J.] 
7 4. Section 44 provides for offences triable by Special A 
Courts. Section 47 provides for appeal to the High Court 
against the judgment passed by the Special Courts. Chapter 
IX of the Prevention of Money-Laundering Act, 2002 deals with 
reciprocal arrangement for assistance in certain matters and 
procedure for attachment and confiscation of property. Section 
B 
55 occurring in this Chapter is a dictionary clause which defines 
the tenms "contracting State", "identifying" and "tracing". Section 
56 mentions about the agreement with the foreign countries .. 
Sections 57 to 61 deal with range of topics where concepts of 
reciprocal arrangement arid letter of request are involved. C 
Chapter X which is miscellaneous chapter provides for 
punishment of vexatious search. Section 70 deals with offences 
by companies and Section 71 occurring in this Chapter 
captioned as "Miscellaneous" is with regard to the overriding 
effect and it clearly lays down that 'The provisions of this Act D 
shall have effect notwithstanding anything inconsistent 
therewith contained in any other law for the time being in force." 
7 5 .. Be it stated that the Prevention of Money-Laundering 
Act, 2002 contains Schedules which originally contained three 
Parts, namely, Part A, Part Band Part C. Part A which contains E 
various paragraphs enumerates offences under the Indian 
Penal Code, The Narcotic Drugs and Psychotropic
Substances Act, 1985, etc. Part B (Containing Para 1 to Para 
25) was omitted by Act 2 of 2013, section 30(ii) (w.e.f. 15-
2-2013, vide S.O. 343(E), dated 8-2-2013) and earlier Part B 
F 
was amended by Act 21 of 2009, section 13(ii) (w.e.f. 1-6-
2009). Part C deals with an offence which is the offence of 
cross border impliqitions and is specified in Part A or the 
offences against property under Chapter XVII of the Indian 
Penal Code. 
G 
76. At this juncture, it is appropriate to note that in 2009, 
the Prevention of Money-Laundering Act, 2002 was a(Tlended 
whereby the offences under Section 13 of the 1988 Act was 
incorporated in Part B of the Schedule. It may be mentioned 
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SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
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that same has been deleted in 2013 inasmuch as the entire 
Part B has been deleted. The High Court in the impugned 
judgment has referred to Entries 93 and 44 of the Union List 
whereby the Prevention of Money- Laundering Act, 2002 has 
been brought into force. The High Court has also taken note of 
B the fact that the OrissaAct was enacted in 2007 regard being 
had to the 1988 Act. The High Court has observed that the 
Prevention of Money- Laundering (Amendment) Act, 2009 upon 
which reliance is placed by the petitioners counsel therein 
cannot prevail upon either the 1988 Act or the Orissa Act. 
c 
77. We have analysed the scheme under the Prevention 
of Money-Laundering Act, 2002. It is clearly demonstrable that 
the offences under the said Act are different from an offence 
under the 1988Act. The offence under the OrissaAct which 
0 
has been carved out is the offence under Section 13(1 )(e) of 
the 1988 Act and the Orissa Act provides for establishment of 
Special Courts and also provides for provisions pertaining to 
confiscation at an interim stage. The entire Prevention of 
Money-Laundering Act, 2002, if keenly scrutinized, clearly 
E 
reveals that it deals with different situations altogether; a 
different offence which has insegregable nexus with money 
laundering. True it is, in 2009 an amendment was brought 
incorporating the 1988Act in Part B of the Schedule, and the 
said Part B has been totally deleted in 2013.
In view of the 
F 
same, the submission of the learned counsel for the State is 
that after deletion of Part B the issue has become academic. 
Be that as it may, Part B of the Prevention of Money-Laundering 
Act, 2002 enumerated offences under the Indian Penal Code, 
The Narcotic Drugs and Psychotropic Substances Act, 1985; 
G The Explosive Substances Act, 1908; The Unlawful Activities 
(Prevention) Act, 1967; The Arms Act, 1959; The Wildlife 
(Protection) Act, 1972; etc. There was a purpose behind the 
same. There could be offences under the Prevention of Money-
LaunderingAct, 2002 arising from the offences under the other 
H Acts. Unless an offence under the Money Laundering Act, 2002
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1117 
[DIPAK MISRA, J.) 
is committed and taken cognizance of by the authorities, the A 
offences under the other Acts can continue as that is the law in 
the field. Once there is money laundering, the accused may 
be tried by the Special Courts as provided under the said 
Act. PartAenumerates offences under the Central legislation 
and certain offences under the Indian Penal Code. The first B 
condition precedent is that the offence committed must pertain 
to money laundering. If a person is tried under Section 13( 1 )( e) 
satisfies the ingredients of money laundering, the matter would 
be different and hence, both the Acts can harmoniously co-
exist. 
C 
78. In view of the aforesaid analysis and keeping in view 
the law pertaining to repugnancy we have hereinbefore referred 
to, we are unable to accept the submission of the learned 
counsel for the appellants that there is repugnancy between 
the two Acts and the Orissa Act is invalid as no assent was D 
obtained in respect of the Prevention of Money-Laundering 
Act, 2002. We may hasten to clarify that we have not addressed 
the issue on the impact of the deletion of Part B of the Schedule 
in 2013 as the legislature may have deleted it in its own 
wisdom. 
E 
79. Next, we shall advert to the assail made in respect of 
certain provisions of the Orissa Act. Attack on two provisions, 
namely, Section 5 and 6, is basically on Article 14 and Article 
20( 1) of the Constitution. We
shall first address to the challenge 
F 
made under Article 14 and thereafter deal with the assail under 
Article 20(1) while we will be addressing the constitutional 
validity of other provisipns, for it has been contended before 
us by the learned counsel for the appellants that the provisions 
pertaining to confiscation and other matters are punishments G 
at the pre-trial stage and hence, the person suffers from double 
jeopardy. That apart, it is urged, confiscation was not there at 
time cif institution of the prosecution and, therefore, the 
amended law cannot be retrospectively applied. It has been 
further argued that the submission of the State that there is 
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[2015] 14 S.C.R. 
A 
only a procedural change as no one has a right to the forum is 
absolutely unsustainable and the appellants have been 
aggrieved by the substantive part and not by the facet relating 
to adjective law. 
80. The principal ground of attack of the said provisions 
8 
is that the legislature has not defined persons who have held 
"high public or political office". According to them, in the 
absence of any definition, it is extremely arbitrary and confers 
unbridled powers on the State Government and that apart, it is 
quite vague as a consequence of which, it invites the frown of 
c Article 14 of the Constitution. Learned counsel for the State, 
per contra, has drawn our attention to the objects and reasons 
of the Act and has propounded that the concept of high public 
or political office is well understood and the provision does 
pot deserve to be struck down solely on the ground that there 
D is no definition of the said words in the dictionary clause. 
81. Be it stated, the definition in the rules have been 
pressed into service. We need not look at the rules, for we 
have to find out whether in the provision in the context of the 
E legislation and the purpose it intends to serve, there is enough 
guidance not to allow any kind of arbitrariness. To appreciate 
the said contention, we are obligated to refer to Section 2(d) 
of the Orissa Act which defines the term 'offence' which reads 
as follows:-
F 
G 
H 
"Section 2{d).
"Offence" means an offence of 
criminal misconduct within the meaning of clause 
( e) of sub-section ( 1) of section 13 of the Prevention 
of Corruption Act, 1988." 
82. Section 5 and Section 6 of the Orissa Act read as 
follows:-
"Section 5. Declaration of cases to be dealt 
with underthisAct-(1) If the State Government 
is of the opinion that there is prima facie evidence
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1119 
[DIPAK MISRA, J.] 
• 
of the commission of an offence alleged to have 
A 
been committed by a person, who held high public 
or political office in the State of Orissa, the State · 
Government shall make a declaration to the effect 
in every case in which it is of the aforesaid opinion. 
(2) Such declaration shall not be called in question 
in any Court." 
Section 6. Effect of declaration - ( 1) On such 
declaration being made, notwithstanding anything 
in the Code or any other law for the time being in 
force, any prosecution in respect of the offence 
shall be instituted only in a Special Court. 
(2) Where any declaration made under section 5 
relates to an offence in respect of which a 
B 
c 
prosecution has already been instituted and the 
D 
proceedings in relation thereto are pending in a 
Court other than Special Court, such proceedings 
shall, notwithstanding anything contained in any 
other law for the time being in force, stand 
transferred to Special Court for trial of the offence 
E 
in accordance with this Act." 
83. The stand of the learned counsel for the appellants is 
that Section 5 of the Orissa Act confers uncanalised and 
unfettered discretion on the State Government to make a 
declaration as a consequence of which the delinquent officer F 
will have to face the prosecution in the Special Court. No 
guidance has been provided and in the absence of any 
guidance, the exercise of power would be arbitrary
and the 
State Government is at liberty to pick and choose any person 
as it desires. The impugned judgment would show that the 
G 
State Government had filed an affidavit on 23.7.2010 and the 
High Court has quoted certain paragraphs from the said 
affidavit. The relevant part of the affidavit shows that in the event 
there is prima facie evidence of the commission of an offence 
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[2015] 14 S.C.R. 
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alleged to have been committed by a person who held high 
public or political office in the State of Orissa as defined under 
the Act and the Rules, the State Government shall mandatorily 
make a declaration to that effect and the State Government 
does not have any discretion on the subject. It has also been 
B asserted that the role of the State Government is limited to be 
satisfied that the ingredients of Section 5(1) of the Special 
Courts Act are existent and if the ingredients of Section 5(1) 
of the Special Courts Act are in existence, the State 
Government is bound to make a declaration to that effect. 
C Placing reliance on the said affidavit, the High Court has 
repelled the submission urged on behalf of the petitioners 
therein. We must say without any reservation that the approach 
of the High Court i~ erroneous. Constitutionality of a provision 
has to be tested within the constitutional parameters. An 
D affidavit filed by an officer of the State Government cannot 
change the interpretation if it is textually and contextually not 
permissible. In Supreme Court Advocates-on-Record 
Association and Another v. Union of/ndia", while dealing 
with the term "fit" expressed under Section 5(1) of the National 
E Judicial Appointments Commission Act, 2014, the Court noted 
the submissions of the learned Attorney General that the said 
word would only mean mental and physical fitness, and nothing 
else. Commenting on the
said submission, Khehar, J. stated 
as follows:-
F 
• ... The present wisdom, cannot bind future 
generations. And, it was exactly for this reason, 
that the respondents could resile from the statement 
mad.e by the then Attorney General, before the 
Bench hearing the Third Judges case, thatthe Union 
G 
of India was not seeking a review or reconsideration 
of the judgment in the Second Judges case (that, it 
had accepted to treat as binding, the decision in 
the Second Judges case). And yet, during the 
H "2015 (11) SCALE 1
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1121 
[DIPAK MISRA, J.] 
course of hearing of the present case, the Union of 
A 
India did seek a reconsideration of the Second 
Judges case." 
84. In this regard, a passage from Sanjeev Coke 
Manufacturing Company v. Mis Bharat Coking Coal 8 
Limited and Another' would be apt to quote:-
" ... The deponents of the affidavits filed into court 
may speak for the parties on whose behalf they 
swear to the statements. They do not speak for the 
Parliament. No one may speak for the Parliament 
and Parliament is never before the court. After 
Parliament has said what it intends to say, only the 
court may say what the Parliament meant to say. 
None else. Once a statute leaves Parliament 
House, the Court is the only authentic voice which 
may echo (interpret) the Parliament. This the court 
will do with reference to the language of the statute 
and other permissible aids. The executive 
Government may place before the court their 
understanding of what Parliament has said or 
intended to say or what they think was Parliament's 
object and all the facts and circumstances which in 
their view led to the legislation. When they do so, 
they do not speak for Parliament. No Act of 
Parliament may be struck down because of 
the understanding or misunderstanding of 
parliamentary intention by the executive 
Government or because their (the Government's) 
spokesmen do not bring out relevant circumstances 
but indulge in empty and self-defeating
affidavits. 
· They do not and they cannot bind Parliament. 
Validity of legislation is not to be judged merely by 
affidavits filed on behalf of the State, but by all the 
relevant circumstances which the court may 
37(1983) 1 sec 147 
c 
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E 
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[2015] 14 S.C.R. 
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ultimately find and more especially by what may be 
gathered from what the legislature has itself said ..... 
• 85. We have referred the said statement of law only to 
highlight that the affidavit sworn by the Joint Secretary could 
not have been relied upon by the High Court for the purpose of 
B 
construction of Section 5 of the OrissaAct. Thus viewed, we 
have to understand, appreciate and interpret the provisions 
contained in Section 5 and Section 6 whether there is any 
scope for arbitrary use of power. 
c 
86. The language employed in Section 5 has to be 
appositely scrutinized. Section 5(1 ) of the Orissa Act provides 
that 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 held high public or political 
0 
office in the State of Orissa, the State Government shall make 
a declaration to the effect in every case in which it is of the 
aforesaid opinion. The Division Bench of the High Court on 
earlier occasion in Kishore Chandra Patel (supra) had struck 
down the part that stated "and that the said offence ought to 
E be dealt with under the Act" and treated the rest of it as valid. 
The legislature, as is perceptible, has rightly deleted the said 
· words. Interpretation of the stipulations in Section 5 are to be 
appreciated in the context of the scheme of the Orissa Act. 
Section 2(d) defines the term
"offence" which means an 
F "offence" of criminal misconduct within the meaning of clause 
( e) of sub-section (1) of Section 13 of the 1988 Act. Section 
5(1) confers power on the State to form an opinion that there 
is prima facie evidence of commission of an offence alleged 
to have been committed by a person who has held high public 
G or political office in the State of Orissa and then proceed to 
make the declaration to that effect. The key words, as we find, 
are "prima facie evidence of the commission of the offence 
alleged". In Reserve Bank of India v. Peerless General 
Finance and Investment Co. Ltd." it has been ruled that 
H 
38AIR 1987 SC 1023
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1123 
[DIPAK MISRA, J.] 
interpretation must depend on the text and the context and they A 
must form the basis of interpretation. The two-Judge Bench 
speaking through Chinnappa Reddy, J. has expressed that:-
" ... A statute is best interpreted when we know why 
it was enacted. With this knowledge, the statute 
must be read, first as a whole and then section by 
section, clause by clause, phrase by phrase and 
word by word. If a statute is looked at, in the context 
of its enactment, with the glasses of the 
statutemaker, provided by such context, its scheme, 
the sections, clauses, phrases and words may take 
colour and appear different than when the statute 
is looked at without the glasses pr0vided by the 
context. With these glasses we must look at the Act 
as a whole and discover what each section, each 
clause, each phrase and each word is meant and 
designed to say as to fit into the scheme of the 
entire Act. No part of a statute and no word of a 
statute can be construed in isolation. Statutes have 
to be construed so that every word has a place and 
everything is in its place ... " 
87. In Union oflndia v. Filip Tiago De Gama ofVedem 
B 
c 
D 
E 
" 
Vasco De Gama the Court has held that:-
" 
"The paramount object in statutory interpretation is 
to discover what the legislature intended. This 
F 
intention is primarily to be ascertained from the text 
of enactment in question. That does not mean the 
text is to be
construed merely as a piece of prose, 
without reference to its nature or purpose. A statute 
is neither a literary text nor a divine revelation. 
G 
'Words are certainly not crystals, transparent and 
.unchanged" as Mr Justice Holmes has wisely and 
properly warned. (Towne v. Eisner, 245 US 418, 
1990AIR 981 
H
1124 
SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
A 
425 (1918). Learned Hand, J., was equally 
emphatic when he said: "Statutes should be 
construed, not as theorems of Euclid, but with 
some imagination of the purposes which lie behind 
them." (Lenigh Valley Coal Co. v. Yensavage, 218 
B 
FR 547, 553)." 
88. In R.L. Arora v. State of Uttar Pradesh and Others•• 
the Constitution Bench dealt with the validity of amendments 
to LandAcquisitionAct, 1894 as amended by Act 31of1962. 
The challenge therein was to the amendments of certain 
C . provisions in the Land Acquisition Act, 1894. While dealing 
with the concept of construction of a provision, the Court opined 
that a literal interpretation is not always the only interpretation 
of a provision in a statute and the court has to look at the setting 
in which the words are used and the circumstances in which 
D the law came to be passed to decide whether there is 
something implicit behind the words actually used which would 
control the literal meaning, of the words used in a provision of 
the statute. The Court further ruled that it is permissible to 
control the wide language used in a statute ifthat is possible 
E by the setting in which the words are used and the intention of 
the law-making body which may be apparent from the 
circumstances in which the particular provision came to be 
made, and therefore, a literal and mechanical interpretation is 
not the only interpretation which courts are bound to give to 
F · the
words of a statute; and it may be possible to control the 
wide 'language in which a provision is made by taking into 
account what is implicit in it in view of the setting in which the 
provision appears and the circumstances in which itmight have 
been enacted. 
G 
89. In TATA Engineering & Locomotive Co. Ltd. v. 
State of Bihar and Another" emphasis was laid as regards
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1125 
[DIPAK MISRA, J.] 
the purposes which lie behind the words and to be too literal A 
in the· meaning of words is to see the skin and miss the soul. · 
90. In this regard, a passage from the Statutory 
Interpretation by Justice G.P. Singh, gth Edn. 2004, at p. 86, 
would throw immense insight:-
" No word", says PROFESSOR H.A. SMITH "has 
an absolute meaning, for no words can be defined 
in vacuo, or without reference to some context". 
According to SUTHERLAND there is a "basic 
fallacy" in saying "that words have meaning in and 
of themselves", and "reference to the abstract 
meaning of words", states CRAIES, "if there be any 
such thing, is of little value in interpreting statures". 
In the words of JUSTICE HOLMES : "A word is not 
a crystal transparent and unchanged; it is the skin 
of a living thought and may vary greatly in colour 
and content according to the circumstances and 
the time in which it is used." Shorn of the context, 
the words by themselves are "slippery customers". 
Therefore, in determining the meaning of any word 
or phrase in a statute the first question to be asked 
is "what is the natural or ordinary meaning of that 
word or phrase in its context in the statute? It is 
only when that meaning leads to some result which 
cannot reasonably be supposed to have been the 
intention of the legislature that it is proper to look 
for some other possible meaning of the word or 
phrase". The context as already
seen in the 
construction of statures means the statute as a 
whole, the previous state of the law, other statutes 
in pari materia, the general scope of the statute 
and the mischief that it was intended to remedy." 
91. In Union of India v. Sanka/chand Himatla/ Sheth", 
Bhagwati, J. opined as follows:-
42 
(1977) 4 sec 193 
B 
c 
p 
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SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
· A 
"I mean it in its widest sense 'as including not only other 
enacting provisions of the same statute but its preamble, the 
existing state of the law. other statutes in pari materia and the 
mischief which -
the statute was intended to remedy' ". 
92. The concept of context has also been emphasised 
8 
in Maharaj Singh v. State of U.P.". 
93. Apart from the aforesaid interpretation. we are also 
of the view that regard being had to the text. context and the 
legislative intendment, the principle of reading down can be 
c applied to save it from the constitutional invalidity. May it be 
mentioned that there are certain authorities which have held 
that such provisions are valid when the power is vested with 
high authority and there is guidance in the language employed 
in the provision. But we prefer to take this route as we find the 
0 
legislature never intended to leave any offender. In Shreya 
Singhal v. Union oflndia". the Court upheld the constitutional 
validity of Section 79 of the Information Technology Act, 2000 
subject to Section 79(3)(b) by stating as follows:-
E 
F 
G 
"Section 79 is valid subject to Section 79(3)(b) 
being read down to mean that an intermediary upon 
receiving actual knowledge from a court order or 
on being notified by the appropriate government" 
or its agency that unlawful acts relatable to Article 
19(2) are going to be committed then fails to 
expeditiously remove or disable access to
such 
material. Similarly. the Information Technology 
"Intermediary Guidelines" Rules, 2011 are valid 
subject to Rule 3 sub-rule (4) being read down in 
the same manner as indicated in the judgment." 
94. A passage from DTC v. Mazdoor Congress" is also 
fruitful to extract:-
YOGENDRA KUMAR JAISWAL ETC. v. STATE !JF BIHAR 1127 
[DIPAK MISRA, J.] 
_ " ... The doctrine of reading down or of recasting the 
A 
statute can be applied in limited situations. It is 
ess"entially used, firstly, for saving a sw_tute 
from being struck down on account of its 
unconstitutionality. It is an extension of the principle 
that when two interpretations are possible-one 
B 
rendering it constitutional and the other making it 
unconstitutional, the former should be preferred. The 
unconstitutionality may spring from either the 
incompetence of the legislature to enact the statute 
or from its violation of any of the provisions of the 
C 
Constitution. The second situation which summons . 
its aid is where the provisions of the statute are 
vague and ambiguous and it is possible to gather 
the intentions of the legislature from. the object of 
the statute, the context in which the provision occurs 
D 
and the purpose for which it is made ... " 
95. In Suresh Kumar Kaushal v. Naz Foundatiot. 
the Court held that:-
"Another significant 8canon of determination of 
constitutionality is that the courts would be reluctant 
to declare a law invalid or ultra vires on account of 
unconstitutionality. The courts would accept an 
interpretation, which would be in favour of 
constitutionality rather than the one which would 
rerder the law unconstitutional. Declaring the law 
unconstitutional is one of the last resorts ta ken by 
the courts. The courts would preferably put into
service the principle of "reading down" or "reading 
into" the provision to make it effective, workable 
and ensure the attainment-Of the object ·of the Act". 
96. In Calcutta Gujarati Education Societyv. Calcutta 
Municipal Corporation", it has been held that:-
46(2014) 1 sec 1 
47 
(2003) 1 a sec 533 
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SUPREME COURT REPORTS 
[2015] 14 S.C.R. 
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"The rule of "reading down" a provision of law is 
now well recognised. It is a rule of harmonious 
construction in a different name. It is resorted to 
smoothen the crudities or ironing out the creases 
found in a statute to make it workable. In the garb 
B 
of "reading down", however, it is not open to read 
words and expressions not found in it and thus 
venture into a kind of]udicial legislation. The rule of 
reading down is to be used for the limited purpose 
of making a particular provision workable and to 
C 
bring it in harmony with other provisions of the 
statute. It is to be used keeping in view the scheme 
of the statute and to fulfill its purposes". 
97. We have referred to the aforesaid authorities only to 
highlight that the interpretation placed by us can come within 
D both the conceptions, namely, textual and contextual 
interpretation as well as also reading down the provision to 
save it from unconstitutionality. Be it stated, by such reading 
down no distortion is caused. . 
E 
98. Applying the aforesaid principle, we are inclined to 
think that the State Government is only to be prima facie 
satisfied that there is an offence under Section 13(1 )(e) and 
the accused has held high public or political office in the State. 
Textually understanding, the legislation has not clothed the State 
F 
Government with the authority to scrutinize the material for any 
other purpose. The State Government has no
discretion except 
to see whether the offence comes under Section 13(1) (e) or 
not. Such an interpretation flows when it is understood that in 
the entire texture provision turns around the words "offence 
G alleged" and "prima facie". It can safely be held that the State 
Government before making a declaration is only required to 
see whether the person as understood in the context of the 
provision is involved in an offence under Section 13(1 )(e) of 
the Orissa Act and once that is seen, the concerned authority 
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1129 
[DIPAK MISRA, J.] 
has no other option but to make a declaration. That is the A 
command of the legislature and once the declaration is made, 
the prosecution has to be instituted in a Special Court and that 
is the mandate of Section 6(1) of the Orissa Act. Therefore, 
while holding that the reference to the affidavit filed by the State 
Government was absolutely unwarranted, for that cannot make B 
a provision constitutional if it is otherwise unconstitutional, we 
would uphold the constitutional validity, but on the base of 
above interpretation. The argument and challenge would fail, 
once on interpretation it is held that there is no element of 
discretion and only prima facie satisfaction is required as laid C 
down hereinabove. 
99. Having said that, we shall dwell upon the argument 
which is raised with regard to classification part, that is, that 
the persons holding "high public or political office" are being 
put in a different class to face a trial in a different court under D 
a different procedure facing different consequences, is arbitrary 
and further the provision suffers from serious vagueness. The 
other aspect which has been seriously pyramided by the 
learned counsel for the appellants pertains to transfer of cases 
to the Special Court once declaration is made. 
E 
100. Learned counsel for the State has also referred to 
the rules to show that to avoid any kind of confusion a definition 
has been
introduced in the rules. It is obligatory to make it 
immediately clear that the argument of the State that by virtue F 
of bringing in a set of rules defining the term "high public or 
political office" takes away the provision from the realm of 
challenge of Article 14 of the Constitution is not correct. In this 
regard Mr. Vinoo Bhagat, learned counsel forthe appellants, 
has drawn our attention to the authority in Hotel Ba/aji and G 
Others v. State of A.P. and Others' . In the said case, a 
question arose as to how far it is permissible to refer to the 
rules made in an Act while judging the legislative competency 
of a legislature to enact a particular provision. In that context, 
"1993 supp (4) sec 536 
H
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[2015] 14 S.C.R. 
A the majority speaking through Ranganathan, J. observed that 
a subordinate legislation cannot travel beyond the purview of 
the Act. The learned Judge noted that where the Act says that 
rules on being made shall be deemed "as if enacted in this 
Act", the position may be different. Thereafter, the learned 
B Judge said that where the Act does not say so, the rules do 
not become a part of the Act. A passage from Halsbury's Laws 
of England (3rd Edn.) Vol. 36 at page 401 was referred to. It 
was contended on behalf of the State of Gujarat that the opinion 
expressed by Hedge J. in J.K. Steel Ltd. v. Union of/ndia", 
C a dissenting opinion was pressed into service. The larger 
D 
E 
F 
Bench dealing with the said submission expressed the view:-
" ... Shri Mehta points out further that Section 86 
which confers the rule-making power upon the 
Government does not say that the rules when made 
shall be treated as if enacted in the Act. Being a 
rule made by the Government, he says, Rule 42-E 
can be deleted, amended or modified at any time. 
In such a situation, the legislative competence of a 
legislature to enact a particular provision in the Act 
cannot be made to depend upon the rule or rules, 
as the case may be, obtaining at a given point of 
time, he submits. We are inclined to agree with the 
learned counsel. His submission appears to 
represent the correct principle in matters where the 
legislative competence of a
legislature to enact a 
particular provision arises. If so, the very foundation 
of the appellants' argument collapses." 
101. From the aforesaid, it is crystal clear that unless the 
G Act provides that the rules if deemed as enacted in the Act, a 
provision of the rule cannot be read as a part of the Act. 
102. In the instant case,.Section 24 lays down that the 
State Government may, by notification, make such rules, if any," 
H "AIR1970SC1173
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1131 
[DIPAK MISRA, J.] 
as it may deem necessary for carrying out the purposes gf this A 
Act. The said provision is not akin to what has been referred 
to in the case in Hotel Balaji (supra). True it is, the said 
decision was rendered in the case of legislative competence 
but it has been cited to highlight that unless the condition as 
mentioned therein is satisfied, rules cannot be treated as a B 
part of the Act. Thus analysed, the submission of the learned 
counsel for the State that the Rules have clarified t.he position 
and that dispels the apprehension of exercise of arbitrary 
power, does not deserve acceptance. 
103. Having not accepted the aforesaid submission, we C 
shall proceed to deal with the real thrust of the submission on 
this score. It is urged by Mr. Pad hi, learned senior counsel for 
the State of Odisha, that the principles stated in the decision 
in 11.C. Shukla (supra) will apply on all fours. 
104. In the Special Courts Bill, 1978 (supra), may it be 
noted, the President of India had made a reference to this Court 
under Article 143( 1 ) of the Constitution for consideration of 
the question whether the Special Courts Bill, 1978 (or any of 
D 
its other provisions) if enacted would be constitutionally invalid. E 
The Court referred to the text of the preamble. The preamble 
of the Bill was meant to provide for trial of a certain class of 
offences. Clause 4 of the Act which is relevant for the
present 
purpose, provided that if the Central Government is of the 
opinion that there is prima facie evidence of the commission F 
of an offence alleged to have been committed during the period 
mentioned in the Preamble by a person who held high public 
or political office in India and that in accordance with the 
guidelines contained in the Preamble, the said offence ought 
to be dealt with under the Act, the Central Government shall G 
make a declaration to that effect in every case in which it is of 
the aforesaid opinion. 
105. It was contended that Section 4(1) furnished no 
guidance for making the declaration forae·ciding who one and 
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A for what reasons should be sent up for trial to the Special Courts. 
B 
c 
D 
E 
F 
G 
The Court referred to the various statutes with regard to 
dassification and the concept of guidance and vagueness and 
opined that:-
• ... By clause 5 of the Bill, only those offences can 
. be tried by the Special Courts in respect of which 
' the Central Government has made a declaration · 
under clause 4(1 ). That declaration can be made 
·by the Central Government only if it is of the opinion 
that there is prima ·facie evidence of the 
· commission of an offence, during the period 
mentioned in the preamble, by a person who held 
a high public or political office in India and that, in 
accordance with the guide-lines contained in the 
Preamble to the Bill, the said offence ought to be 
dealt with under the Act. The classification which 
Section 4(1) thus makes is both of offences and 
. offenders, the. former in relation to. the period 
mentioned. in the preamble that is to say, from 
February 27, 1975 until the expiry of the 
proclamation of emergency dated June 25, 1975 
and in relation to the objective mentioned in the sixth · 
para of the preamble that it is imperative for the. 
functioning of parliamentary democracy and the 
institutions created by or under the Constitution of · 
India that the commission of such offences should 
be judicially determined with the utmost dispatch; 
and the latter in relation to their status, that
is to 
·say, in relation to the high public or political office 
held by them in India. It is only if both of these factors 
co-exist that the prosecution in respect of the 
offences committed by the particular offenders can · 
be instituted in the Special Court." 
· 
· 
106. Thereafter, the Court referred to certain periods as 
H mentioned in the preamble arid in that context, opined that:-
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1133 
[DIPAK MISRA, J.] 
" 
But persons possessing widely differing 
A 
characteristic, in the context of their situation in 
relation to the period of their activities, cannot by 
any reasonable criterion be herded in the same· 
class. The antedating of the emergency, as it were, 
from June 25 to February 27, 1975 is wholly 
B 
unscientific and proceeds from irrational 
considerations arising out of a supposed discovery 
in the matter of screening of offenders. The inclusion 
of offences and offenders in relation to the period 
from February 27 to June 25, 1975 in the same 
C 
class as those whose alleged unlawful activities 
covered the period of emergency is too artificial to 
be sustained." 
107. The Court recorded its conclusion in paragraph 120 
as follows:-
D 
'The Objects and Reasons are informative material 
guiding the court about the purpose of a legislation 
and the nexus of the differentia, if any, tothe end in 
view. Nothing about Emergency period is adverted 
to there as a distinguishing mark. If at all, the clear 
clue is that all abuse of public authority by exalted 
public men, whatever the time .of commission, shall . 
be punished without the tedious delay which 
ordinarily defeats justice in the case of top echelons 
whose crimes affect the credentials of democratic 
regimes." 
108. In this context, reference may be made to 11.C. 
Shukla (supra) upon which heavy reliance has been placed 
E 
F 
by the State
Government. The appellants therein while G 
challenging the conviction raised a number of preliminary 
objections including constitutional validity of the Special Courts 
Act [No. 22of1979) on several grounds, including contravention 
of Articles 14 and 21 of the Constitution. A three-Judge Bench· 
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. A 
referred to the order passed in thereference made by the 
President of india under Article 143(1) of the Constitution 
wherein majority of the provisions in the Bill were treated to be 
valid. Thereafter, the Bill ultimately got the assent of the 
President with certain changes. After the Act came into force, 
B it assumed a new eomplexion. The Court in the latter judgment 
referred to clauses in ttie preamble and scanned the anatomy 
of the Act. It was contended that.regard being had to the 
principles laid down by this Court in the Special Courts Bill, 
1978 (supra) the provisions fail to pass the test of valid 
· c cfassification under Article 14, for the classification which 
distinguishes persons who are placed in a group from others 
who are left out of the group is not based on intelligible 
differentia; that there was no nexus between the differentiation 
which was the basis of the Classification and the object of the 
D. Act; and that such differentiation did not liave any rational 
relation to the object sought to be achieved by the Act. The 
Court reading the opinion in the Special Courts Bill, 1978 
(supra) did not agree with the submissions of the learned 
counsel for the appellants that this Cou-rCha-d held that unless 
E emergency offenders could be punished under the Special 
Courts Act and that no Act seeking to punish the offences of 
a special type not related to the emergency would be hit by 
Article
14. ·The Court addressed to the validity of Sections 5, 
6, 7 and 11 of the Special Courts Act, 1979. One of the 
F argumentS advanced was thatneither the words 'high public 
or political office' had been defined nor the offence being 
delineated so as to make the prosecution "of such offenders 
a practical reality. Dealing with the said contention, the Court 
held:-
G 
H 
. "24. As regards the definition of "high public or · . 
· political office" the expression is of well-known . 
. significance and bears a clear connotation which 
admits of no vagueness or ambiguity. Even during 
the debate in Parliament, it was not suggested that 
the expression suffered from any vagueness.Apart
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1135 
[DIPAK MISRA, J.] 
from that even in the Reference case Krishna Iyer, 
J. referred to holders of such offices thus : (SCC 
pp. 440, 441, paras 107, 111) 
" .. : heavy-weight criminaloids who often mislead 
the people by public moral weight-lifting and multi 
poirit manifestoes ... such super-offenders in top 
positions .... No erudite pedantry can stand in the 
way of pragmatic grouping of high-placed office 
holders separately, for purposes of high-speed 
criminal action invested with early conclusiveness 
and inquired into by high-level courts . 
. 25. It is manifest from the observations of Krishna 
Iyer, J., that persons holding high public or political 
offices mean persons holding top positions 
A 
B 
c 
wielding large powers." 
D 
109. Thereafter, the three-Judge Bench referred to the 
description of persons holding high public or political office in 
American Jurisprudence (2d, Voi. 63, pp. 626, 627 and 637) 
Ferris in his Thesis on "Extraordinary Legal Remedies", Wade 
and Phillips in"Constitutional Law" and after referring to various 
E 
meanings attributed to the words ruled:-
"28. A perusal of the observations made in the 
various textbooks referred to above clearly shows 
that "political office" is an office which forms part of 
a political department of the Government or the 
political executive. This, therefore, clearly includes 
Cabinet Ministers, Ministers, Deputy Ministers-and 
Parliamentary Secretaries
who are running the 
Department formulating policies and are 
responsible to the Parliament. The word High is 
indication ofa top position and enabling the holder 
thereof to take major policy decisions. Thus, the. 
term "high public or political office" used in the Act 
contemplates only a special class of officers or 
politicians who may be categorised as follows: 
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"( 1) officials wielding extraordinary powers entitling 
them to take major policy decisions and holding 
positions of trust and answerable and accountable 
for their wrongs; 
(2) persons responsible for giving to the State a 
clean, stable and honest administration; 
(3) persons occupying a very elevated status in 
whose hands lies the destiny of the nation." 
29. The rationale behind the classification of 
persons possessing the aforesaid characteristics 
is that they wield wide powers which, if exercised 
improperly by reason of corruption, nepotism or 
breach of trust, may mar or adversely mould the 
future of the country and tarnish its image. It cannot 
be said, therefore, with any conviction that persons 
who possess special attributes could be equated 
with ordinary criminals who have neither the power 
nor the resources to commit offences of the type 
described above. We are, therefore, satisfied that 
the term "persons holding high public or political 
offices" is self-explanatory and admits of no 
difficulty and that mere absence of definition of the 
expression would not vitiate the classification made 
by the Act. Such persons are in a position to take 
major decisions regarding social, economic, 
financial aspect of the life of the community and 
other far-reaching decisions on the home front as 
also regarding external affairs and if their actions 
are tainted by breach of trust,
corruption or other 
extraneous considerations, they would damage the 
interests of the country. It is, therefore, not only 
proper but essential to bring such offenders to book 
at the earliest possible opportunity."
YOGENDRAKUMAR JAISWAL ETC. v. STATE OF BIHAR 1137 
[DIPAK MISRA, J.] 
110. After so stating, the Court referred to clause 4 of A 
the preamble and opined thus:-
"31. The words "powers being a trust" clearly 
indicate that any act which amounts to a breach of 
the trust or of the powers conferred on the person 
concerned would be an offence triable under the 
Act. Clause (4) is wide enough to include any 
offence committed by holders of high public or 
political offi.ces which amounts to breach of trust or 
for which they are accountable in law and does not 
leave any room for doubt. Mr Bhatia, however, 
submitted that even if the person concerned 
commits a petty offence like violation of municipal 
bye-laws or traffic rules he would have to be 
prosecuted under the Act which will be seriously 
prejudicial to him. In our opinion, this argument is 
purely illusory and based on a misconception of the 
provisions of the Act. Section 5 which confers 
powers on the Central Government to make a 
declaration clearly refers to the guidelines laid down 
in the preamble and no Central Government would 
ever think of prosecuting holders of high public or 
political offices for petty offences and the doubt 
expressed by the counsel for the appellant is, 
therefore, totally unfounded." 
In view of the aforesaid enunciation of law, we are unable 
to accept the submission of the learned counsel for the 
appellants that the words "high public or political office" not 
being defined, creates
a dent in the provision. The said words, 
B 
c 
D 
E 
F 
we are absolutely certain, convey a category of public servants G 
which is well understood and there is no room for arbitrariness. 
111. The next aspect of challenge pertains to the 
classification made by the legislature in respect of the accused 
persons facing trial under Section 13(a) to (d) and the accused 
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persons under Section 13(1 )(e). It is urged by the learned 
counsel for the appellants that there is no intelligible 
differentia for making such a classification qua the offence 
and moreover by adopting a rigorous procedure. 
112. First, we shall advert to the class of offence and the 
B 
persons. It is submitted by Mr. Vinoo Bhagat, learned counsel 
appearing for some of the appellants, that when a person 
holding public office is accused of an offence under Section 
13(1 )(a) to (d), he will be tried by the Special Courts under the 
1988Act, but when Section 13(1 )(e) is combined along with 
C other offences, namely, Section 7 to 11 of the 1988 Act, he will 
be facing the trial under the Orissa Act or two trials. Mr. P.S. 
Narasimha, learned senior counsel, would contend that the 
bifurcation of offences defeats the concept of classification, 
for it pertains to a "stand alone offence", though no discemable 
D principle is perceptible. Learned senior counsel would contend 
that there is no difference between Section 13(1 )(a) to (d) and 
Section 13(1 )(e) of the 1988Act, but the legislature has made 
a special classification which the law does not countenance. 
It is also canvassed that a person not holding high public or . 
E 
political office would be tried by the Special Judge under the 
1988 Act, whereas the differentiated category will be tried by 
the Orissa Act as a consequence of which an unacceptable
discrimination takes place. It is contended that the only basis 
of classification for choosing a different forum with a different 
F 
procedure is that the accused persons held 'high public or high 
political office' though there can be cases where holders of 
low public office can amass assets by illegal means but they 
would not be liable to face confiscation proceedings as 
provided under the Orissa Act. It has been argued that the 
G classification is not to be done on the basis of post which a 
public servant holds. 
H 
113. We have already referred to the term "offence". The 
Orissa Act defines the offence to make it come within the
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1139 
[DIPAK MISRA, J.] 
compartment of Clause (e) of sub-section 1 of Section 13 of A 
the 1988 Act. The submission on behalf of the. learned counsel 
for the appellants is that the classification is arbitrary, 
unwarranted and unjustified as there is no rationale behind it. 
Learned counsel have referred to the offences under Sections 
7, 8, 9 and 12 of the 1988 Act. The said offences relate to 
B 
different situations, whereas Section 13 deals with criminal 
misconduct by a public servant. The said provision reads as 
follows:-
"Section 13. Criminal misconduct by a public 
servant. - (1) A public servant is said to commit 
the offence of criminal misconduct,-
(a) if he habitually accepts or obtains or agrees to 
accept or attempts to obtain from any person for 
himself or for any other person any gratification 
other than legal remuneration as a motive or reward 
such as is mentioned in section 7; or 
(b) if he habitually accepts or obtains or agrees to . 
accept or attempts to obtain for himself or for any 
other person, any valuable thing without 
consideration or for a consideration which he 
knows to be inadequate from any person whom he 
knows to have been, or to be, or to be likely to be 
concerned in any proceeding or business 
transacted or about to be transacted by him, or 
having any connection with the official functions of 
himself or of any public servant to whom he is 
subordinate, or from any person whom he
knows 
to be interested in or related to the person so 
concerned; or 
( c) if he dishonestly or fraudulently misappropriates 
or otherwise converts for his own use any property 
entrusted to him or under his control as a public 
servant or allows any other person so to do; or 
c 
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(d) if he,-
(i) by corrupt or illegal means, obtains for himself 
or for any other person any valuable thing or 
pecuniary advantage; or 
(ii) by abusing his position as a public servant, 
obtains for himself or for any other person any 
valuable thing or pecuniary advantage; or 
(iii) while holding office as a public servant, obtains 
for any person any valuable thing or pecuniary 
advantage without any public interest; or 
( e) 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. 
Explanation. - For the purposes of this section, 
"known sources of income" means income received 
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. 
(2) Any public servant who commits criminal 
misconduct shall be punishable with imprisonment 
for a term which shall be not Jess than four years 
but which may extend to ten years and shall also 
be liable to fine." 
114. The submission of Mr. Narasimha, learned senior 
counsel and others, as we have referred to earlier, is that it is 
a micro-mini classification and classification is on the base of 
a stand alone offence or to put it
differently, it is a classification 
qua a singular class. It is to be noted that Section 13(1)(e)