2007 Supreme(Ker) 594

Judges : J.B.KOSHY,K.HEMA
Dr.V.K.Rajan - Appellant
Versus
State of Kerala - Respondent
Case No : Crl.A.1400 of 2007, Crl.M.C.Nos.2526 & 2559 of 2007
Decided On : 11/01/2007
Advocates Appeared :
For the Petitioner : Bechu Kurian Thomas, Advocate. For the Respondent: Public Prosecutor.

The power of attachment under the Criminal Law (Amendment) Ordinance, 1944 (Ordinance 38 of 1944) is given to the Special Judge under section 5 (6) of the Prevention of Corruption Act, 1988 (P.C. Act) only 'while trying' the case and not during pre-trial stage or investigation stage or after judgment.

Headnote:

Validity of Criminal Law (Amendment) Ordinance, 1944 (Ordinance 38 of 1944) and jurisdiction of District Judge under the Ordinance after enactment of the Prevention of Corruption Act, 1988 (P.C. Act) were challenged. The Court held that the Ordinance was valid and applicable, and that the District Judge had jurisdiction to pass the impugned order under the provisions of the Ordinance.

Fact of the Case:

The appellant was facing investigation for the offence punishable under Section 13(2) read with Section 13(1)(e) of the P.C. Act alleging that he had amassed wealth disproportionate to his income. The check period is 1.1.1994 to 12.5.2005. While the investigation was continuing, an application was filed by the Investigating Officer before the District Court for attachment of his properties invoking provisions of Section 3 and 5 of the Ordinance. The District Court passed an order attaching certain properties scheduled in the petition. When the case came up for admission, after admitting the appeal, referred the case to Division Bench as some important questions of law are involved in this case.

Finding of the Court:

The Court held that the Ordinance was valid and applicable, and that the District Judge had jurisdiction to pass the impugned order under the provisions of the Ordinance. The Court further held that the power of attachment under the Ordinance is given to the Special Judge under section 5 (6) of the Act only 'while trying' the case and not during pre-trial stage or investigation stage or after judgment.

Issues: 1. Whether the Criminal Law (Amendment) Ordinance, 1944 (Ordinance 38 of 1944) is valid and applicable? 2. Whether the District Judge has jurisdiction to pass the impugned order under the provisions of the Ordinance after enactment of the Prevention of Corruption Act, 1988 (P.C. Act)? 3. Whether the power of attachment under the Ordinance is given to the Special Judge under section 5 (6) of the Act only 'while trying' the case and not during pre-trial stage or investigation stage or after judgment?

Ratio Decidendi: 1. The Court held that the Ordinance was valid and applicable on the following grounds: a) The Ordinance was an existing law immediately before the commencement of the Constitution. b) The Ordinance was not repealed or amended by any subsequent Ordinance or Act of the Indian Legislature. c) The Ordinance was not limited to the period specified under section 3 of the India and Burma (Emergency Provisions) Act, 1940. d) The Ordinance was adopted and incorporated in the P.C. Act itself. 2. The Court held that the District Judge had jurisdiction to pass the impugned order under the provisions of the Ordinance on the following grounds: a) Section 5 (6) of the P.C. Act specifically provides that the Special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law (Amendment) Ordinance, 1944. b) The power of attachment under the Ordinance is a special power conferred upon the District Judge under the Ordinance. c) The District Court is vested with certain powers for attachment of the property with regard to a matter connected with a matter pending in criminal court having special jurisdiction. 3. The Court held that the power of attachment under the Ordinance is given to the Special Judge under section 5 (6) of the Act only 'while trying' the case and not during pre-trial stage or investigation stage or after judgment on the following grounds: a) The words used in section 5 (6)is 'Special Judge while trying' and not 'Special Judge while proceeding'. b) The purpose behind the Ordinance is only to protect money embezzled from the Government and recovery of the same so that Government need not file a separate suit for realisation of the money lost.

Final Decision: The Court dismissed the appeal and upheld the validity of the Ordinance and the jurisdiction of the District Judge to pass the impugned order under the provisions of the Ordinance.