IMPORTANT POINT
The Special Court under the Prevention of Corruption Act has the authority to exercise the powers of a District Judge for property attachment under the Criminal Law Amendment Ordinance, 1944, even before the trial commences.

JUDGMENT :

THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN

Prayer in Crl.A.No.679 of 2016: Criminal Appeal has been filed under Section 11 of the Criminal Law [Amendment] Ordinance, 1994, pleased to set aside the order passed in Crl.M.P.No.2115 of 2013 in Special Case No.44 of 2014, dated 24.06.2014 by Hon'ble Court of Special Court for Prevention of Corruption Act Cases, Villupuram.

This Criminal Appeal is offshoot of Special Case No.44 of 2014, on the file of Special Court for Prevention of Corruption Act cases, Villupuram.

2. The respondents 1 & 2 are the husband and wife. The 1st respondent was Member of the Legislative Assembly and Minister of Higher Education and Mines between 2006-2011. A case in Crime No.7 of 2011 by detachment of V & A.C, Villlupuram was registered against the 1st accused for the offence under Section 13(2) r/w 13(1)(e) of P.C. Act.

3. On completion of investigation, final report was filed against A1 for acquiring and possessing properties disproportionate to known source of income and as against A2 for holding property acquired illegally on behalf of A1. The allegation against the respondents 1 & 2 was for holding the properties worth Rs.1,75,51,468/- disproportionate to the known source of income.

4. The Special Court, Villupuram, took cognizance of the offence and tried the respondents. Pending trial, the Government of Tamil Nadu, in exercise power under Section 3 of Criminal Law Amendment Ordinance 1944 vide G.O.Ms.No.488 Public (SC) department, dated 23.05.2013 and G.O.Ms.No.561 Public (SC) Department, dated 11.06.2013, authorised the Deputy Superintendent of Police, Vigilance and Anti Corruption, to attach the properties mentioned in the annexures. Accordingly, interim attachment was made. When the matter later came up for consideration, to make the ad interim attachment order absolute till termination of criminal proceedings, it was contended by the respondents that the Special Court lack jurisdiction to attach the property under Criminal Law Amendment Ordinance 1944.

5. The point canvassed by the respondents/accused before the Special Court was that,

(a). The power to attach the properties under Criminal Law Amendment Ordinance 1944 is vest only with the District Judge. The Special Court designated to try offence under Prevention of Corruption Act is not the District Court to derive the power of attachment under Criminal Law Amendment Ordinance 1944.

(b). The Special Court constituted under the Prevention of Corruption Act, 1988, can exercise its power under Section 5(6) of the Act only on commencement of the trial and not prior to the trial. In the instant case, the Special Court order of interim attachment is void since the Special Court lack power.

6. The Special Court, on considering the submissions held that, the Special Court has no power under Section 3 or Section 4 of Criminal Law Amendment Ordinance 1944, to pass order of attachment of the properties. The said power is vest only with the District Judge and therefore, the earlier order of ad interim attachment passed on 19.07.2013 not made absolute. Further, it was observed that on the day of passing the order, the trial did not commence and therefore, the Special Court decline to exercise power under Section 5(6) of Prevention of Corruption Act, which confers power to the Special Court to try offence under Prevention of Corruption Act, also to attach properties suspected to be proceeds of crime.

7. The said order of the trial Court refusing to make absolute the ad interim attachment is the subject matter of Criminal Appeal No.679 of 2016.

8. The Appellant/State, in the grounds of Appeal had stated that Section 5 (3) (a) & (b) of Criminal Law Amendment Ordinance 1944, restrains the District Judge from releasing the attached property or withdraw the order of attachment unless he is satisfied that the said person not by means of the said offence procured any money or other property.

9. In this case, the ad interim attachment was made by the Special Court