1991 ALLMR ONLINE 14
BOMBAY HIGH COURT
D.J. MOHARIR, J.
Prabhakar Dattatraya Haval Vs. State of Maharashtra and another
281 of 1990
9th January, 1991
Petitioner Counsel: A. P. Mundargi,
Respondent Counsel: R. F. Lambay, A.P.P., .
Criminal Law Amendment Ordinance (1944),Cl. 10(b)
JUDGMENT :-This is an appeal under cl. 11 of Criminal Law Amendment Ordinance No. XXXVIII of 1944 preferred by Praabhakar Dattatraya Haval whose properties came to be attached under the provisions of the said Ordinance, upon an offence under the Prevention of Corruption Act being registered against him and upon an application then being made for attachment of his properties in pursuance of the provisions of cl. 3 of the said Ordinance.
2. The appellant herein was employed as Superintendent of the Land Records at Bombay at the relevant time i.e. in 1984. Upon a raid on his house and a search taken certain properties, including fixed deposit receipts, gold and silver ornaments were found and a case for possession of properties disproportionate to his known sources of income came to be registered. Actually, there were two offences registered against the appellant, the first numbered as 12/84 dated 5-3- 1984 and this was u/S.5(1)(a) and 5(1)(b) read with S.5(2) of the Prevention of Corruption Act, 1947. Upon completion of the investigation in this offence, a charge-sheet was presented against him on 5-3-1985 and the criminal case was numbered as 7 of 1985.
3. C.R. No. 13/84 was also registered against the appellant on 13-3-1984 and this was in respect of' an offence u/S. 5(1)(e) read with fit 5(2) of the Prevention of Corruption Act. It is not in dispute that investigation in this offence look considerably a long time and the same was completed and a charge-sheet came to be filed only in December 1989. The criminal case was registered as 70/89.
4. However, it was in connection with and with reference to C.R. No. 13 of 1984 that an application was made by the present respondent No. 2 S. W. Joshi, inspector of Police, Anti-corruption Branch under cl. 3 of the Ordinance for attachment of the properties of the appellant. On presentation of this application in C.R. No. 13/84, the order came to be passed by the Chief Judge of the Small Causes Court as the duly empowered forum on 16-2-1985 and an interim attachment was ordered and levied on the properties of the appellant.
5. Then on 11th October 1989, the present appellant made an application to the said Court of Small Causes at Bombay and submitted that inasmuch as the order of attachment of these properties had come to be passed in C.R. No. 13/84 on 16-2-1985 and inasmuch as the cognizance of the said offence u/S.5(1)(e) read with S.5(2) of the Prevention of Corruption Act had not come to be taken within the period prescribed by cl. 10(a) of the Ordinance and since the period of validity of attachment of 3 months had also not come to be extended by any further order passed by the District Judge the attachment must, in law, be deemed to have come to an end and it must be taken to have stood vacated. On that premise the present appellant, therefore, prayed that the respondents be directed to return to him forthwith the properties of which they had taken charge under the ad interim order on 16-2-1985. This prayer of the appellant was opposed by respondents 1 and 2 the State of Maharashtra and the Assistant Commissioner of Police by submitting that though two offences had come to be registered against the appellant under C.R. No. 12/84 and 13/84. These offences had been committed together, the, as such they were parts of the same offence though they fell under different sections of the Act on a procedural aspect. These offences, it was contended, were thus interconnected, investigation of these two offences had also come to be done simultaneously and when a fresh charge-sheet in one viz. C.R. No. 13/84 came to be filed on 5-3-1985 (Sic) the presentation of such charge-sheet out of C.R. No. 12/84 on 5-3-1985 before the expiry of the period of 3 months from 16-2-1985 cannot enure to the benefit of the State (Sic) to contend that cognizance of the offence committed by this appellant by C.R. No. 13/84 had also come to be taken. As such, contention raised was that cognizance of the offences having been taken, it was no more open for this appellant to pray for a declaration that the attachment had stood vacated or to pray for the return of his properties to his custody.
6. Having heard the learned Counsel for the appellant as also the learned Assistant Public Prosecutor, the controversy must be confined and to lie within indeed a very narrow compass. The first one of the contentions advanced on behalf of the State which requires to be rejected summarily is that the offences registered as C.R. No. 12/84 and C.R. No. 13/84 should be considered as one and the same or so irrevocably connected has to be considered as being one and the same. This submission is entirely incorrect if regard is to be had to the fact that the offence vide C.R. No. 12/84 came to be registered upon a complaint dated 9-3-1984 (Sic) whereas the offence in C. R. No. 13/84 came to be registered entirely upon an independent complaint registered on 13-3-1984. Perhaps, it would have been a different case if two different offences had come to be registered upon one and the same complaint but factually that is not the case and, therefore, it cannot be said that presentation of the charge-sheet on 5-3-1985 out of C. R. No. 12/84 gave continuation and validity of the attachment effected upon an application under S. 10(a) of the Ordinance. The second submission precisely deals with cl . 10 of the Ordinance which it would be useful to reproduce. It runs as follows:-
"10. Duration of Attachment.-An order
(a) Where no Court has taken cognizance of' the alleged offence at the time when the order is applied for, three months from the date of the order under sub-section (1) of S. 4 or sub-section (2) of S. 6, as the case may be, unless cognizance of such offence is in the meantime so taken, or unless the District Judge on application by the agent of the (State) Government thinks it proper and just that the period should be extended and passes an order accordingly; or
(b) where a Court has taken cognizance of the alleged scheduled offence, whether before or after the time when the order was applied for until orders are passed by the District Judge in accordance with the provisions of this ordinance after the termination of the criminal proceedings."
It thus stands provided that the attachment of property under this Ordinance can remain in force as provided in sub-clause (a) for a period three months. In the present case the order of attachment in C.R. No. 13/84 dated 16-2-1 985 could, therefore. be a valid one till 16-5-1985. It is also provided that this order of attachment would further stand validated if cognizance of the offence is taken. In the present case the cognizance of the offence u/S. 5(1)(d) (Sic) and 5(2) of the Prevention of Corruption Act is taken in the meantime, (Sic) meaning during and before the expiry of the period of 3 months, there was an eventuality for extension of the period of 3 months-upon an order of the District Judge on an application made by an agent of the State Government and the reasons given in such application praying for extension of time being found and considered proper. It is the submission which was advanced on behalf of the appellant in the Court below as also here that the provisions of sub-clauses (a) and (b) of cl. 10 of the Ordinance are really one. Cl. (b) provides that where the Court has taken cognizance of the alleged scheduled offence whether before or after the time when the order was aplied for then the attachment shall continue to the in force until the orders are passed by the District Judge in accordance with the provisions of the Ordinance after the termination of the criminal proceedings against the delinquent. The stress is, therefore, on the premise that once it is shown that cognizance of the offence has been taken by the Court at whatever time it may be the order of attachment must be deemed to have continued till the termination of the proceedings and, therefore, the limitations of the period of 3 months of the validity of the order or the validity of the order for period extended by the District Judge as provided in sub-cl. (a) does not arise. In reality it does not appear to be that sub-cl. (b) is any independent provision. This is for the simple reason that the cognizance of the offence to be taken by the Court mentioned in the sub-cl. (b) to which recourse is made is that cognizance is to be taken within the period of 3 months mentioned in sub-cl. (a) and no other period. It is not provided that the interim attachment has to continue once the cognizance of the offence is taken irrespective of the time and date on which it is taken, until the termination of the proceedings. On the other hand, the time and duration are the gravamen of the effective operation of the order of attachment. It is only when the cognizance which is taken within the period prescribed viz. of 3 months or of the period thereafter extended by the Court that in sub-cl. (b) provision is made for continuation of the attachment until disposal of the proceedings and until order for disposal of the property passed in such criminal proceedings. Therefore, the words "in the meantime" appearing (a) are, in my opinion' the words governing sub-cl. (b) and must be confined to the period referred to in sub-cl. (a) and it would be wrong to contend that the provision of sub-cl. (b) stand liberated from the restraint imposed by the language of sub-cl. (a). It is in that sense that sub-cl. (a) and sub-cl. (b) ought to be considered as one single unit and not different ones as such.
7. This submission of the learned counsel Shri Mundargi finds support in an unreported decision of this Court in Criminal Apeal No. 850 of 1985 decided on 21st August 1987*by A. C. Agarwal, J. Dealing with the
"In my judgment, the said clause provides that order of attachment shall continue for a period of three months from its date and the same would thereafter continue only in two contingencies, (1) when cognizance of the offence is in the meantime taken i.e. within the period of three months or (2) where the Court on an application filed within the said period of three months extends that order of attachment........ "( Emphasis provided)
Reference was also made in that decision to the decision in N. K. Banerji v. State of Bihar reported in 1969 Cri LJ 1178 (Patna) where it as held that in the absence of clear indication of the intention of the Legislature as to what was to happen if the period of three months were to expire without the cognizance being taken and in the absence of any clear expression that in such eventuality attachment would stand vacated the provision would have to be considered as merely directory and not mandatory. The decision was rightly distinguished and in particular so far as recourse to the same at the time of the argument was also considered. It must be observed that due weight given and the impact of words and expression "in the meantime" occurring in sub-cl. (a) of cl. 10 does not appear to have been stressed during the course of arguments in the said case before Patna High Court. That is all that could be said in regard to that decision. However presently as the matter stands, the position is clear that it is not open to respondent No. 1 to argue that by reason of the cognizance of the offence in C.R. No. 12/84 dated 5-3-1984,the cognizance of the offence in C.R. No. 13/84 should also be deemed to have been taken nor is it a correct proposition to lay down that sub-cl. (b) of Cl. 10 of the Ordinance deals with the case and provides for the continuation of an ad interim order of attachment irrespective of whether the cognizance of the offence is taken or not. Irrespective of any limitation of time on the taking of such cognizance with all the force at one's command, it must be observed that the continuation of the ad interim order of attachment, until the disposal of the criminal proceedings under an order to be passed by the District Judge as provided in sub-cl (b) of cl 10 must be only in that case in which cognizance has been taken within the prescribed period of three months mentioned in sub-cl. (a) or within that period (after 3 months) as extended by the order of the District Judge upon an application specifically made for such extension. In that view of the matter, the order passed by the learned Chief Judge of the Small Causes Court of 6-3-1990 cannot be sustained and the same will have to be quashed. It is further observed that the attachment as effected on 16-2-1985 after the expiry of 3 months from the date of operation thereof intended restoration of benefit free from any such attachment. In the notice taken out by the appellant as per Exh. D, the prayer cl. (b) was that the present respondents be also directed and ordered to pay to the appellant costs and damages for wrongful withholding of the properties for the period from 16-5-1985 onwards. The learned Counsel Mr. Mundargi submits that he does not press or canvass for the efficacy of this relief part of the prayer.