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2011 Supreme(Kar) 424
High Court of Karnataka
V. JAGANNATHAN
H.C. Sathyan & Another
Versus
The State by Police Inspector
Criminal Appeal No. 457 of 2011
Decided on : 05-07-2011
For the Appellants:S.G. Bhagavan, Advocate.
For the Respondent:S.G. Rajendra Reddy, Advocate.
Headnote:PREVENTION OF CORRUPTION ACT, 1988 - Section 5(6) & Criminal Law (Amendment) Ordinance, 1944, Sections 3 & 4: [V.Jagannathan, J] Application for attachment of property in respect of offence punishable under Prevention of Corruption Act - Held, It is clear from a combined reading of Sections 3 and 4 of the Ordinance, 1944 that the application can be filed before a District Judge, whether or not any Court has taken cognizance of the offence and the offences would also include an offence punishable under the P.C. Act, which is clear from the schedule to Section 2 of the Ordinance…. The effect of sub-section (6) of Section 5 of the P.C. Act and Sections 3 and 4 of the Ordinance, 1944 is that, an application for attachment of property in respect of an offence punishable under the P.C. Act can be made by the State Government or the Central Government before the District Judge, whether or not any Court has taken cognizance of the offence. In other words, the application can be filed for attachment of a property even before a case is taken up for trial by the Special Judge under the P.C. Act. The second conclusion to be drawn from a combined reading of the aforesaid provision is that, in order to exercise the power conferred on a District Judge by the Ordinance of 1944, the Special Judge, under the P.C. Act. If a Special Judge under the P.C. Act is also authorised to pass an order of attachment during the stage of investigation, it would mean that the District Judge, who is empowered under the Ordinance, 1944 as well as the Special Judge under the P.C. Act both will have the jurisdiction to pass an order on an application for attachment of property. Such a situation is not contemplated on a careful reading of Sections 3 and 4 of the Ordinance 1944 and sub-section (6) of Section 5 of the P.C. Act. Therefore, the provisions contained in sub-section (6) of Section 5 of the P.C. Act cannot be read as to take the view that in respect of an application for attachment of a property, the District Judge and the Special Judge both will have the power to act simultaneously. For the aforesaid reasons, the order passed by the Court below confirming the order of attachment by allowing the application filed by the Special Public Prosecutor under Sections 4 and 5 of the Ordinance, 1944 cannot be sustained in law.
1. Interpretation of sub-section (6) of Section 5 of the Prevention of Corruption Act, 1988 has come up for consideration in this criminal appeal.
2. The facts which have given rise to the aforesaid circumstance are that, a case was registered against the first appellant herein viz., H.C. Sathyan, by the Lokayuktha police, Mysore, for the offences punishable under Sections 13(1)(e) read with 13(2) of the Prevention of Corruption Act and following a raid conducted by the Lokayuktha police on 27.3.2008, certain records pertaining to immovable assets and movable assets like gold and silver and other household items were noticed by the Lokayuktha police and steps were taken to attach the said properties.
3. An application was filed by the Lokayuktha police for attachment of 19 items of the property possessed by the first appellant-accused and his wife and an interim order was passed by the learned Sessions Judge on 16.10.2008 and subsequently, the Special Public Prosecutor for the Lokayuktha filed an application under Sections 3 and 4 of the Criminal Law (Amendment) Ordinance, 1944 (‘the Ordinance’ for short) and as could be seen from the impugned order, an application was also filed by the second appellant for return of the properties. The learned Sessions Judge, after hearing both sides, passed the impugned order allowing the application filed by the Special Public Prosecutor and confirmed the interim order passed on 16.10.2008.
4. Learned counsel Shri S.G. Bhagavan for the appellants contended that the respondent-Lokayuktha could not have filed an application before the trial court for attachment of the properties because, the trial court gets jurisdiction to exercise the powers of a District Judge under the Ordinance only by virtue of the provisions contained in sub-section (6) of Section 5 of the P.C. Act. The said provision, if carefully read, would make it clear that the Special Judge gets jurisdiction only while trying an offence under the P.C. Act and not under other circumstances and muchless before the trial commences. Therefore, a combined reading of sub-section (6) of Section 5 of the P.C. Act and the provisions contained in the Ordinance with regard to attachment of property would go to show that the Special Judge gets the powers of a District Judge only while trying an offence and not during the stage of investigation. For the aforesaid proposition, the learned counsel for the appellants relied on a Division Bench ruling of the Kerala High Court in the case of Dr. V.K. Rajan Vs. State of Kerala, reported in 2008 Crl.L.J. 909. Therefore, the impugned order passed by the trial court be set aside by allowing this appeal is the prayer.
5. On the other hand, counsel Shri Rajendra Reddy for the respondent-Lokayuktha contended that a Special Judge trying an offence under the P.C. Act is also empowered with the powers and functions of a District Judge and consequently, the order passed in the instant case does not suffer from any infirmity and apart from that, the word “trying” should be read along with the expression “tried” used in Section 4 of the P.C. Act and Section 26 of the Cr.P.C. Read in the said light, the Special Judge has, therefore, every power to attach the property of the accused. Apart from that, even the powers conferred by Sections 451 and 452 of the Cr.P.C. also can be exercised by the Special Judge and, as such, the question of the Special Judge not having the power to attach the property during the pendency of a criminal case does not arise. To support the aforesaid submission, reliance is placed by the learned counsel on a decision of the High Court of Madhya Pradesh in the case of Hemant Soni Vs. State of M.P. reported in 2000-TLMPH-0-362.
6. Having thus heard both sides, the focus will have to be now turned to the provisions contained in sub-section (6) of Section 5 of the P.C. Act and the court will have to consider as to what the expression “while trying an offence” means.
7. Sub-section
