Back
2023 Supreme(MP) 693
IN THE HIGH COURT OF MADHYA PRADESH
Sheel Nagu, Devnarayan Mishra, JJ.
Smt.Girja Devi Tiwari W/o Shri Kodu Prasad Tiwari – Appellant
Versus
The State of Madhya Pradesh Through Economic Offences Wing (E.O.W.) Bhopal – Respondent
Criminal Appeal No. 13140 of 2023
Decided On : 18-12-2023
Manish Datt - Senior Advocate with Manish K. Tiwari, Advocate and Shubham Mishra, Advocate, for the Appellant; Madhur Shukla, Advocate, for the Respondent.
The main legal point established is the requirement of furnishing security to the District Judge as per Section 8 of the Criminal Law (Amendment) Ordinance, 1944, for permission to operate temporarily attached property.
Headnote:
Criminal Law (Amendment) Ordinance - Ad Interim Attachment - The court held that the appellant's application for permission to operate the petrol pump, which was temporarily attached, was rejected due to the failure to furnish security as required under Section 8 of the Criminal Law (Amendment) Ordinance, 1944. The court emphasized the necessity of furnishing security to the District Judge and allowed the appellant to file a new application with adequate security.
Fact of the Case:
The appellant, accused in a corruption case, sought permission to operate a petrol pump temporarily attached under the Criminal Law (Amendment) Ordinance, 1944. The application was rejected for not furnishing security as required under Section 8.
Finding of the Court:
The court found that the appellant's application was incomplete and not in compliance with Section 8, as it did not offer security. The court also noted that a similar prayer was rejected by a coordinate Bench, but held that the rejection was not in line with the provisions of the 1944 Ordinance.
Issues: The issues revolved around the appellant's right to operate the attached petrol pump, the requirement of furnishing security under Section 8, and the precedential value of a previous rejection of a similar prayer.
Ratio Decidendi: The court emphasized the necessity of furnishing security to the District Judge as required under Section 8 of the 1944 Ordinance. It also held that the previous rejection of a similar prayer was not in line with the provisions of the Ordinance.
Final Decision: The court disposed of the appeal, allowing the appellant to file a new application under Section 8 with adequate security, emphasizing the importance of complying with the provisions of the Ordinance.
ORDER
1. This criminal appeal has been preferred u/S.11 of the Criminal Law (Amendment) Ordinance, 1944 (for short the 1944 Ordinance') assailing Annexure A/1 dated 14.09.2023 which is an order passed by Special Judge (P.C. Act), Jabalpur in MJCR No.1690/2020, by which an application for permission to operate the petrol pump which was attached temporarily u/S.4 of the said Ordinance, has been rejected.
2. Learned senior counsel Shri Manish Datt along with Shri Manish K. Tiwari and Shri Shubham Mishra, learned counsel for appellant and Shri Madhur Shukla, learned counsel for Prosecuting Agency are heard at length.
3. The appellant is one of the accused in Crime No.20/18 registered by Economic Offences Wing, Unit Jabalapur alleging offences punishable u/Ss.13(1) E r/w Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120(B) of IPC.
4. The appellant holds lease hold rights on behalf of Indian Oil Company qua retail outlet Shivam filling Station situated at Rajendra Nagar, Satna (M.P.)
4.1 It is not disputed that the husband of appellant is the main accused in the said crime number where the appellant is arrayed as a co-accused.
4.2 The said retail outlet has been temporarily attached by ad interim attachment order passed on 17.06.2020.
4.3 The appellant moved an application u/S.8 seeking permission of Trial Court to operate the said retail outlet. By the impugned order dated 14.09.2023, said prayer has been rejected.
5. After having gone through the record and contents of the Criminal Law (Amendment) Ordinance, 1944, it appears that when an order of interim attachment is made awaiting the same to become absolute, the person who is adversely affected by the ad interim attachment can make an application u/S.8 furnishing security to the District Judge concerned, who, in turn, is empowered to assess the sufficiency of the said security and thereafter pass appropriate order regarding ad-interim custody subject to the final attachment.
5.1 A bare perusal of the application preferred by appellant dated 19.08.2020 (Annexure-A/7) reveals that there was no offer made by appellant of furnishing security and thus the said application was not only incomplete but also not in terms of the provisions of Section 8.
5.2 The District Judge ought to have either returned the application or dismissed the same as not maintainable, but instead impugned order was passed rejecting the request for permission to run the retail outlet.
5.3 It is not disputed at the Bar by learned counsel for rival parties that the interim attachment order passed on 17.06.2020 has not yet been made absolute and, therefore, appellant can very well invoke section 8.
5.4 Learned counsel for Prosecuting Agency however referring to an earlier decision taken by the coordinate Bench on 03.03.2022 in Criminal Appeal No.4796/2020 (Girja Devi Vs. The State of M.P.) submits that similar prayer was considered and rejected by co-ordinate Bench of this Court and, therefore, this appeal is not maintainable.
6 . We have perused the order of the Co-ordinate Bench of this Court passed on 03.03.2022 in Criminal Appeal No.4796/2020 where a similar prayer for permitting appellant to operate the retail outlet was rejected on the ground that final order of attachment has not yet been passed and, therefore, the said prayer is premature.
6.1 The 1944 Ordinance merely confers right upon person whose property is subjected to ad interim attachment to file an application u/S.8 for release of his property subject to furnishing security to the satisfaction of District Judge. Thus, the finding in the order of the Co-ordinate Bench dated 03.03.2022 that the prayer was pre-mature and could not be considered unless the final order of attachment is passed, is rendered per incuriam the provision of Criminal Law (Amendment) Ordinance, 1947 and therefore stands denuded of its precedential characteristic.
6.2 In view of above discussion and the fact that the application by appellant itself was not in the right
