2015 Supreme(SC) 1244

SUPREME COURT OF INDIA
ANIL R. DAVE, DIPAK MISRA, JJ.
Yogendra Kumar Jaiswal Etc. – Appellants
Versus
State of Bihar & Ors. – Respondents
CIVIL APPEAL NOS. 6448-6452 OF 2011, WITH CIVIL APPEAL NO. 6460 OF 2011, CRIMINAL APPEAL NO. 1678 OF 2015 (@ SLP(CRL) NO. 4558/2012), CRIMINAL APPEAL NO.1679 OF 2015 (@ SLP(CRL) NO. 3084/2013), CRIMINAL APPEAL NO.1680 OF 2015 (@ SLP(CRL) NO. 3085/2013), CRIMINAL APPEAL NOS. 360-378 OF 2012, CRIMINAL APPEAL NOS. 385-386 OF 2012, CRIMINAL APPEAL NO. 387 OF 2012, CRIMINAL APPEAL NO. 388 OF 2012, CRIMINAL APPEAL NOS. 379-384 OF 2012, CRIMINAL APPEAL NO. 389 OF 2012, CRIMINAL APPEAL NO. 390 OF 2012, CRIMINAL APPEAL NO. 1371 OF 2012, CRIMINAL APPEAL NO. 1372 OF 2012,
Decided on : 10-12-2015

IMPORTANT POINTS
The Orissa Act is not hit by Article 199 of the Constitution.
The establishment of Special Courts under the Orissa Act as well as the Bihar Act is not violative of Article 247 of the Constitution.
The provisions pertaining to declaration and effect of declaration as contained in Section 5 and 6 of the Orissa Act and the Bihar Act are constitutionally valid as they do not suffer from any unreasonableness or vagueness.
The Chapter III of the both the Acts providing for confiscation of property or money or both neither violates Article 14 nor Article 20(1) nor Article 21 of the Constitution.
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 Constitution.
The provision relating to appeal in both the Acts is treated as constitutional on the basis of reasoning that the power subsists with the High Court to extend the order of stay on being satisfied.
The proviso to Section 18(1) of the Orissa Act does not fall foul of Article 21 of the Constitution.
The provisions contained in Section 19 pertaining to refund of confiscated money or property does not suffer from any kind of unconstitutionality.
Sub-rules (a) and (f) Rule 12 of the 2010 Rules being violative of the language employed in the Bihar Act are ultra vires or anything contained therein pertaining to the summary procedure is also declared as ultra vires the Bihar Act.

Headnote:(a) Orissa Special Courts Act, 2006 – Objects and Reasons – Corruption in high places – Corruption should be hindered from all angles – Prevention of Corruption Act, 1988 already having provisions for eliminating corruption – State legislature introducing a special law despite the 1988 Act – The special legislation has to withstand close scrutiny. (Para 30)

       (2014) 9 SCC 1; (2013) 4 SCC 642; (2014) 8 SCC 682 – Relied upon

       (b) Constitution of India – Article 199(3) and 212(1) and (2) – Odisha Special Court Bill not a money Bill – Introduced as Money Bill – Mere irregularity – Not illegality – Cannot be questioned in Court of law. (Para 38)

       (2007) 3 SCC 184; (2014) 11 SCC 415 – Relied upon

       AIR 1965 SC 745 – Distinguished

       (c) Constitution of India – Article 247 and 366(10) – Orissa Special Courts Act, 2006 – Section 3 – Creation of special courts – State authorised to appoint special judges for all offences u/s 3, PC Act, 1988 – Orissa Act concerns only offences u/s 13(1)(e) of 1988 Act and special courts created after obtaining assent of the President – Not violative of Article 247 – Constitution of India – Entry 11-A, List III, Seventh Schedule, Articles 138(1) and 246(1) and Entries 77, 78 and 99 of List I, Seventh Schedule – Courts can be created by the State legislature as well as by the Parliament – Courts established by State to administer laws made by Parliament as well as State legislature – Obliged to carry administration of justice, subject to Entry 77 and Entry 78, List I – a (Para 43, 45, 46, 48)

       (2014) 10 SCC 1; AIR 1968 SC 888; (2005) 2 SCC 591; (1979) 1 SCC 380 – Relied upon

       (d) Constitution of India – Article 254(2) – Repugnancy – Direct conflict between provisions of Parliament and State law – State law subsequent in time and getting assent of President – Shall prevail in the State upon Parliament law – Law made by State Legislature under State List incidentally touching an entry in Concurrent List – Article 254 not attracted – Court should attempt to see if provisions of both the Acts can be made applicable. (Para 52, 54, 56, 57)

       AIR 1983 SC 1019 : (1983) 4 SCC 45; (1959) Supp. 2 SCR 8; (1956) SCR 393; (2004) 6 SCC 36; (2004) 1 SCC 320; (2005) 3 SCC 212; (2007) 9 SCC 109; (1995) 1 SCC 257; (2001) 4 SCC 68; (2002) 3 SCC 202; (2008) 2 SCC 614 – Relied upon

       (e) Constitution of India – Article 254(2) – Procedure for obtaining assent of the President – Orissa Special Courts Act, 2006 – Entire Bill sent to President for assent in respect of certain provisions of the 1988 Act, the Code of Criminal Procedure, 1973 and the Criminal Law Amendment Ordinance, 1944 – President granting general assent – Orissa Act not repugnant to the 1988 Act, the Code of Criminal Procedure, 1973 and the Criminal Law Amendment Ordinance, 1944. (Para 66)

       (2003) 1 SCC 591; 1995 Supp. (2) SCC 187; AIR 1983 SC 1019 : (1983) 4 SCC 45; (1985) 3 SCC 661; (2011) 8 SCC 708 – Relied upon

       (f) Constitution of India – Article 254(2) – Prevention of Money-Laundering Act, 2002, Schedule Part A – Containing offences under carious other Acts as well as IPC – Act, 2002 is attracted only when element of money laundering is present – Otherwise, prosecution can continue under respective Acts – Instantly, Orissa Act and Act 2002 can co-exist harmoniously – Not obtaining Presidential assent for Orissa Act in respect of Act, 2002 – Does not create repugnancy. (Para 78)

       (g) Interpretation of statute – Validity – Affidavit filed by State – Cannot be basis for construing a provision and testing its Constitutional validity. (Para 83, 85)

       2015 (11) SCALE 1; (1983) 1 SCC 147 – Relied upon

       (h) Interpretation of statute – Meaning of words – Depends upon text and context – Words have no abstract and absolute meaning – The meaning depends upon the text and context of the provision. (Para 88)

       AIR 1987 SC 1023; AIR 1990 SC 981; AIR 1964 SC 1230; (2000) 5 SCC 346; (1977) 4 SCC 193; (1977) 1 SCC 155 – Relied upon

       (i) Interpretation of statute – Reading down – Extension of the principle of choosing, out of two possible interpretations, one which makes the provision constitutional – Harmonious construction. (Para 93, 94, 95, 96)

       (2015) 5 SCC 1; (2014) 1 SCC 1; (2003) 10 SCC 533 – Relied upon

       (j) Orissa Special Courts Act, 2006 – Section 5(1) and 6(1) – Validity on ground of conferring unguided discretion on the executive – Key words – “Offence alleged” and “prima facie” – Section 5(1) – State only to be prima facie satisfied as regards commission of offence u/s 13(1)(e) of P.C. Act, 1988 – Further prima facie satisfaction as regards the accused having held high public or political office – Section 6(1) – On satisfaction u/s 5(1) State has no option but to issue declaration – Prosecution to be instituted thereafter in special court – No element of discretion – Only prima facie satisfaction required – Provisions held constitutional. (Para 98)

       (k) Interpretation of statute – Classification – Constitution of India – Article 14 – Orissa Special Court Act, 2006 not defining the term “high public or political office” – Rules defining these terms – Rules do not become part of Act unless so stated in the Act – Instantly, the Act not making the Rules part of it – Definition in Rules cannot make up deficiency in the Act – Apprehension of exercise of arbitrary power (Para 101, 102)

       1993 Supp (4) SCC 536; AIR 1970 SC 1173; (1980) Supp. SCC 249; (1979) 1 SCC 380 – Referred

       (l) Orissa Special Courts Act, 2006 – Section 5(1) – “High public or political office” – Not defined in the Act – Terms conveying category of public servants which is well understood – No room for arbitrariness – Provision held constitutional – Article 14, Constitution of India. (Para 110)

       (m) Orissa Special Courts Act, 2006 – Section 5(1) – Constitutional validity – Article 14, Constitution of India – Distinction between offences u/s 13(1) (a) to (d) and 13(1)(e), P.C. Act, 1988 – Trial by Special court under PC Act, 1988 for offences u/s 13(1) (a) to (d) by Special court under Act, 2006 for offences u/s 13(1)(e) – Further, persons holding high public or political offices to be tried by special court under Act, 2006 but other persons triable by special courts under Act, 1988 – Offences under Section 13(1) (a) to (d) can be called incident specific or situation specific – Offence under Section 13(1)(e) on the other hand is period specific forming a separate class targeting persons who have disproportionate assets to their known sources of income – Classification not arbitrary – Article 14, Constitution of India not violated – Provision held valid. (Para 111, 114, 120, 123)

       (1999) 6 SCC 559; AIR 1958 SC 538; (2008) 5 SCC 287; AIR 1960 SC 1; AIR 1960 SC 548; (1979) 1 SCC 380; (1954) SCR 30; (1999) 5 SCC 138; AIR 1961 SC 1602 141 – Relied upon

       (1952) SCR 284; (1952) SCR 435; (1980) Supp. SCC 249; 1993 (76) CLT 720; (1994) 4 SCC 391; (1999) 1 SCC 396; (2008) 5 SCC 1; AIR (1979) SC 898; AIR 1983 SC 1019; AIR 1969 SC 903; AIR 1961 SC 954 – Referred

       (n) Interpretation of statute – Article 14, Constitution of India – Persons alleged with offences u/s 13(1)(e) in other States tried by Special courts under Act, 1988 – Such persons in Odisha tried by Special courts under Act, 2006 – No violation of Article 14 – Law enacted by one State legfislature cannot be equated with law enacted by other State legislature. (Para 124)

       AIR 1954 SC 493; AIR 1987 SC 2117 – Relied upon

       (o) Orissa Special Courts Act, 2006 – Sections 13 – Validity – Section 13(1) empowers the Authority, after scrutinizing the offence, to authorise the Public Prosecutor to file application for confiscation after being satisfied as regards commission of offence and its evidence – Section 13(2) obliges public prosecutor to file reasons for belief of commission of the offence and affidavits in support thereof along with the application – The provision neither gives discretion nor unguided power to the State – Not violative of Article 14, Constitution of India. (Para 127, 128, 144)

       (p) Orissa Special Courts Act, 2006 – Section 14 and 15 – Section 14 provides opportunity to accused person to explain acquisition of properties and establish their legality – Section 15 obliges the Authorised Officer to scrutinize the material before it and record finding as to legality of the acquisitions and whether it was by means of the offence – Only thereafter order of confiscation can be passed which is appealable u/s 17 – Further, u/s 19 confiscated property is returnable/refundable on the order of confiscation being set aside by the High Court – Confiscation thus being interim in nature, not a punishment – Article 20(1), Constitution of India not attracted. (Para 137, 138)

       AIR 1953 SC 325 154; (1985) 4 SCC 573; (1996) 2 SCC 471; (2014) 4 SCC 392 – Relied upon

       AIR 1963 SC 255 : (1963) 2 SCR 111 – Referred

       (q) Orissa Special Courts Act, 2006 – Section 13 and 14 r/w Article 20(1), Constitution of India and sections 4 and 13(3), Prevention of Corruption Act, 1988 – Transfer of cases instituted u/s 13(1)(e) of Act, 1988 to Special Courts under Act 2006 to be tried under Act 2006 – Contention that punishment under Act 2006 (confiscation) is harsher than Act 1988 (attachment) – Confiscation – Section 4 of Act 1988 providing for ad interim attachment of properties of accused and section 13(3) providing for disposal of attached properties – Confiscation u/s 13 of Act 2006 also an ad interim measure – Accused has no vested right as regards interim measure – Article 20(1) only prohibiting imposition of greater punishment that might have been imposed under the law at the time of commission of the act – Ad interim confiscation not being a punishment, Article 20(1) not attracted – Provision held constitutionally valid. (Para 142, 143)

       (2013) 5 SCC 111; (2006) 10 SCC 709 – Relied upon

       (1989) 3 SCC 448; (1969) 1 SCC 445; (1975) 4 SCC 101 – Referred

       AIR 1960 SC 266 – Distinguished

       (r) Orissa Special Courts Act, 2006 – Section 15(3) – Confiscation – “Free from all encumbrances” – Expression having restricted meaning – Confiscation interim subject to appeal and return/refund of properties – Not assuming character of finality – Hence not obliterating rights of the person concerned – Cannot be equated with provisions in other statutes obliterating rights of the person concerned (Para 145, 147)

       AIR 2001 SC 3431; (2010) 8 SCC 467 – Referred

       (s) Orissa Special Courts Act, 2006 – Section 13 – Accused required to place his defence before Authorised Officer – Contention that it would jeopardize his trial – Material adduced by delinquent prohibited to be used for any purpose other than for deciding confiscation – Cannot be looked into during trial – Provision not violative of Article 20(3), Constitution of India – That apart, Article 20(3) provides protection against “testimonial compulsion” – Contention rejected. (Para 152)

       (2012) 8 SCC 263; (2012) 4 SCC 516; AIR 1954 SC 300 – Relied upon

       (t) Orissa Special Courts Act, 2006 – Section 17(3) – Appeal and stay – Appeal against order of Authorised Officer to be disposed within six months – Stay order passed by High Court against operation of order of authorised Officer not to remain in force beyond prescribed period of disposal of appeal – However, High Court not debarred from passing fresh order of stay beyond the prescribed period for disposal of appeal if a proper case is made out – Reading down. (Para 153, 154)

       1993 (76) CLT 720 – Approved

       (u) Orissa Special Courts Act, 2006 – Section 18(1), Proviso – Confiscation of property including dwelling house acquired with illegal income – Proviso permitting occupation on market rent – No infirmity – If delinquent cannot satisfy Authorised officer that the dwelling house was acquired from his known sources of income, he would have no right to the property. (Para 155)

       (v) Orissa Special Courts Act, 2006 – Section 19 Proviso r/w Article 300A, Constitution of India – Return/refund of confiscated property or payment of value with interest – Key words “not possible for any reason” – Not conveying that State will not return the property – “Not possible” is not “impossible” – State obliged to give reasons for not returning property, subject to judicial review by High Court – Article 300A not violated. (Para 157, 158)

       (w) Bihar Special Court Rules, 2010 – Rule 12(a) and (f) – Bihar Special Courts Act, 2009 provides to follow warrant procedure for trial of cases before a Magistrate – Rule 12 providing for summary trial – Rules cannot override the Act – Part of Rule 12 providing for summary trial held ultra vires the Act. (Para 161)

       CRIMINAL APPEAL NO. 1372 OF 2012

       (x) Prevention of Corruption Act, 1988 – Section 19 – Sanction for prosecution – Application of mind by competent authority imperative – Contention that sanction was granted without application of mind – High Court holding that competent authority had applied his mind opining that recording detailed reasons by the authority not necessary – No infirmity – Contention rejected. (Para 8, 9)

       (1997) 7 SCC 622; (2007) 11 SCC 273 – Relied upon

       (2007) 1 SCC 1 – Referred

       Facts of the case:

       In all the cases, 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 1988 Act on the allegation that they were having property disproportionate to their known sources of income. The grievance of appellants in these appeals relate to the impact and effect of the legislations brought during pendency of the proceedings.

       In all the cases, the appellants are/were public servants and facing criminal cases for various offences including the offences under the Prevention of Corruption Act, 1988, particularly Section 13(1)(e) of the 1988 Act on the allegation that they were having property disproportionate to their known sources of income. The grievance of appellants in these appeals relate to the impact and effect of the legislations brought during the pendency 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 are not restricted to the pending trials alone.

       Finding of the Court:

       The Orissa Special Courts Act, 2006 and Bihar Special Courts Act, 2009 are constitutionally valid. Part of Rule 12 of Bihar Special Court Rules, 2010 providing for summary trial is ultra vires the Act, 2009.

       Result: Appeals arising out of the judgment and order passed by the High Court of Orissa dismissed, and the appeals against the judgments and order passed by the High Court of Patna allowed.