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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
B.B. Vagyani, J.
Chandrakant Ganpat Sovitkar .... Petitioner.
Versus
State of Maharashtra.... Respondent.
Criminal Writ Petition No. 331 of 1997, decided on 25-8-2000.
Advocates appeared :
M.S. Phatak, for petitioner.
A.B. Gaikwad, A.P.P., for respondent.
Attachment - Criminal Writ Petition - Ordinance of 1944 - Section 3, Section 4, Section 5, Section 10, Section 11
Fact of the Case:
The petitioner, a Police Officer, filed a criminal writ petition to quash the order of attachment of movable and immovable property passed by the Additional Sessions Judge, Aurangabad. The petitioner was accused of possessing property disproportionate to his known source of income, leading to an enquiry and subsequent attachment of his properties.
Finding of the Court:
The court found that the order of attachment passed by the Additional Sessions Judge was ineffective and did not comply with the relevant provisions of the Ordinance of 1944. The court also noted that the movable properties seized by the investigating agency were not properly attached, and the immovable properties were not attached as per the required procedure.
Issues: The issues revolved around the legality of the attachment order, the proper application of the Ordinance of 1944, and the failure of the court to pass a valid attachment order.
Ratio Decidendi: The court held that the order of attachment was ineffective and did not comply with the mandatory conditions for attachment of property. It emphasized the necessity for strict compliance with the legal procedures for attachment of property under the Ordinance of 1944.
Final Decision: The court partly allowed the criminal writ petition, quashed the impugned orders, released the immovable properties from the attachment order, and ordered the return of certain movable properties to the petitioner. The petitioner's request for restoration of other movable properties was rejected.
2. The petitioner has filed this criminal writ petition under Article 227 of the Constitution of India and under section 482 of Criminal Procedure Code for quashment of the order of attachment of movable and immovable property passed by the Additional Sessions Judge, Aurangabad.
3. The petitioner was a Police Officer. He is permanent resident of Kallamnuri, District Parbhani. In 1956, he was selected as P.S.I. He completed his training in the year 1956-57 at Hyderabad and Nasik. He owned 17 acres of land at Shivani and 4 acres of land at Dhanora, Tq. Kallamnuri, District Parbhani. The petitioner has already sold land to the extent of 4 acres situated at Dhanora in the year 1960 for Rs. 1500/-. He has also sold two houses for Rs. 47,000/- in the year 1984 and 1986 respectively. The petitioner was the only earning member in the family. He had no source of income other than salary and income from landed property. The petitioner has constructed two houses in the year 1976 and 1986 at Nanded and Cidco, Aurangabad respectively. The value of the house situated at Bhagyanagar, Nanded is Rs. 55,464-and the value of the bungalow situated at Cidco, Sector No. N-1 Aurangabad is Rs. 3,71,241/-. He has purchased one plot in the name of his son. The value of the Plot No. H-5-19-Cidco is Rs. 33,030/-. Number of complaints were received against the petitioner and, therefore, enquiry was conducted by Additional Superintendent of Police, Anti-Corruption Bureau, Aurangabad and during the course of said enquiry, it was revealed that the petitioner possessed property disproportionate to his known source of income. Accordingly, Shri B.M. Sharma, Additional S.P., A.C.B. Aurangabad was directed to lodge F.I.R. against the petitioner. Shri B.M. Sharma filed F.I.R. against the petitioner on 27-10-1987 and on the basis of which, Crime No. II-79 of 1987 for the offences punishable under sections 5(1)(c) r/w 5(2) of the Prevention of Corruption Act, 1947 and under section 109 of Indian Penal Code is registered at Cidco Police Station, Aurangabad.
4. During the course of investigation, Shri A.D. Shinde, Dy. S.P., A.C.B., Aurangabad took search of the house of petitioner. He seized movable property consisting of gold and silver ornaments, silver utensils, cash, F.D. Receipts, several pass books of the banks, shares etc. The value of the seized property is worth Rs. 3,89,455.34 ps. Dy. S.P. Shri Shetkar and Additional S.P. A.C.B. Aurangabad Shri Oturkar took search of the temporary residence of the petitioner at Yavatmal. Dy. S.P. Shetkar attached one D.B.B.L. Gun 12 Bore worth of Rs. 500/-. The movable property seized is deposited in the Court of C.J.M. Aurangabad on 6-11-1987 and the documents i.e. F.D.R., several pass books of banks, R.D. Accounts worth of Rs. 66,767-05 ps. are, however, kept in the office by Dy. S.P. A.D. Shinde.
5. On 4-11-1988, Shri A.D. Shinde, Deputy Superintendent of Police, Anti-Corruption Bureau, Aurangabad moved the Additional Sessions Judge, Aurangabad for attachment of the movable and immovable property shown in the schedule. The said application was filed under section 3 of the Criminal Law (Amendment) Ordinance of 1944 (hereinafter referred to as Ordinance of 1944). The schedule annexed to the application for attachment of properties comprises movable and immovable properties. The properties described at Sr. Nos. 1 to 3 of the Schedule are immovable properties. The properties at Sr. Nos. 1 and 2 are houses and property at Sr. No. 3 is a plot. The properties described at Sr. Nos. 4 to 66 are movable properties including cash, fixed deposit receipts, silver utensils, gold ornaments and DBBL 12 Bore Gun etc.
6. During pendency of the application for attachment dated 4-11-1988, charge-sheet came to be filed on 15-1-1991. On 18-11-1991, the learned Additional Sessions Judge, Aurangabad passed the or
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