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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 18th OF DECEMBER, 2023
CRIMINAL APPEAL No. 13140 of 2023
BETWEEN:-
SMT. GIRJA DEVI TIWARI W/O SHRI KODU PRASAD
TIWARI,
AGED
ABOUT
67
YEARS, OCCUPATION:
BUSINESS, R/O WARD NO. 27, BHAWAN NO. 56,
PRABHAT VIHAR COLONY, LOKMANYA TILAK PARK
KE SAMNE, DISTRICT BHOPAL (MADHYA PRADESH)
.....APPELLANT
(BY SHRI MANISH DATT - SENIOR ADVOCATE WITH SHRI MANISH K.
TIWARI - ADVOCATE AND SHRI SHUBHAM MISHRA - ADVOCATE )
AND
THE
STATE
OF
MADHYA
PRADESH
THROUGH
ECONOMIC OFFENCES WING (E.O.W.) BHOPAL, UNIT
JABLAPUR (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI MADHUR SHUKLA - ADVOCATE)
This appeal coming on for admission this day, Justice Sheel Nagu
passed the following:
Siddharth Datt,Advocate General
A person whose property is subject to interim attachment under the Criminal Law (Amendment) Ordinance, 1944, can apply for its release under Section 8 by furnishing security.
Headnote:
CRIMINAL LAW (AMENDMENT) ORDINANCE, 1944 - ATTACHMENT OF PROPERTY - APPLICATION FOR PERMISSION TO OPERATE ATTACHED PROPERTY - SUMMARY
Fact of the Case:
The appellant, accused in a corruption case, sought permission to operate a petrol pump attached under the Criminal Law (Amendment) Ordinance, 1944. The trial court rejected the application.
Finding of the Court:
The court held that the appellant's application was incomplete and not in accordance with Section 8 of the Ordinance, as it did not offer to furnish security.
Issues: Whether the appellant's application was maintainable under Section 8 of the Ordinance.
Ratio Decidendi: The court held that the appellant could invoke Section 8 despite the interim attachment order not being made absolute, but the application was not maintainable due to its incompleteness.
Final Decision: The court disposed of the appeal with liberty to the appellant to file a proper application under Section 8, along with adequate security.
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.
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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
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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.
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(SHEEL NAGU)
JUDGE
(DEVNARAYAN MISHRA)
JUDG
