Vitakula Satya Mani vs The State Of Andhra Pradesh
2022 Latest Caselaw 8265 AP

           HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

                        Crl.P.No.1906 of 2022

ORDER:

The petitioner was gifted the land under a deed of gift executed in

favour of the petitioner on 08.01.1979 and registered as document

No.111/1979 by her grand-mother. Thereafter, a house was constructed

on the said property. The husband of the petitioner, who was a

Government servant, was accused of possessing assets disproportionate

to his known source of income and C.C.No.50 of 2008 was filed before the

Special Judge for Trial of SPE & ACB Cases, Rajamahendravaram, East

Godavri District. One of the allegations, against the husband of the

petitioner, was that he had constructed a house in the land belonging to

her by using the funds which had been obtained through corruption. The

husband of the petitioner passed away on 27.12.2010 during the

pendency of the case. Subsequently, the trial Court, by order dated

03.03.2011, had passed an order declaring that the case against the

accused officer had abated.

2. After the order of abatement, the legal heirs of the husband

of the petitioner applied for release of the assets and the documents,

which had been seized by the investigating officer during the investigation

and trial of the case against the deceased husband of the petitioner. The

trial Court, by order dated 19.07.2019 in Crl.M.P.Nos.30 and 31 of 2018,

had ordered release of the seized objects and documents, subject to the 2 RRR,J Crl.P.No.1906 of 2022

production of appropriate documentation demonstrating the identity of the

legal heirs of the deceased husband of the petitioner.

3. The petitioner had, thereafter, approached the trial Court by

way of Crl.M.P.No.46 of 2022 for release of the deed of gift given in her

favour and Registered under document No.111/1979 from the trial Court.

However, this application was rejected by an order dated 23.02.2022. The

trial Court, after considering Gagan Bihari Das and Ors., Vs. The State

of Orissa1, had held that the claim of the petitioner over the property can

only be under Section 457 Cr.P.C., and as, the house built on the

property, has been shown as one of the disproportionate assets acquired

by her husband, the same cannot be released to her as she has not

demonstrated that the property does not fall under the category of

disproportionate assets acquired by her late husband. Aggrieved by

the said order, the petitioner has filed the present criminal petition under

Section 482 Cr.P.C.

4. Sri A.K. Kishore Reddy, learned counsel for the petitioner

would submit that the trial Court had not appreciated the judgment of the

Hon'ble High Court of Orissa in Gagan Bihari Das and Ors., Vs. The

State of Orissa in its proper perspective. He would submit that the said

judgment was an authority for the proposition that the Court would have

to release the property either to the person from whom the property had

2002 SCC OnLine Ori 276 : 2002 Cri LJ 3415 3 RRR,J Crl.P.No.1906 of 2022

been attached or seized, or to the person who would be lawfully entitled

for the possession of the property, after the same is demonstrated to the

Court. This judgment cannot be understood to mean that the assets

seized from the late husband of the petitioner would have to be remain

with the custody of the Court even when the prosecution would not be

able to either make any claim over the property or confiscate the

property. He would submit that any order of confiscation can only follow,

after adjudication as to whether the late husband of the petitioner had

constructed the house by using the funds which are disproportionate to

his income.

5. Smt. Gayatri Reddy, learned Special Public Prosecutor

appearing for the 1st respondent would submit that the attachment over

the property cannot be raised until the petitioners are able to demonstrate

that the said property has not been acquired by using the funds

disproportionate to the income of the late husband of the petitioner. She

would further submit that in the absence of such a demonstration of fact,

neither the property nor the document can be released to the petitioner.

6. In the case before the Hon'ble High Court of Orissa in

Gagan Bihari Das and Ors., Vs. The State of Orissa a public servant,

who had been subjected to criminal prosecution under the Prevention of

Corruption Act, had passed away while the trial of the case was going on.

The question that came up before the Hon'ble High Court of Orissa was,

whether the property could be released to a legal heir of the deceased 4 RRR,J Crl.P.No.1906 of 2022

person under Section 452 Cr.P.C., when the enquiry or trial had not

concluded, and no order regarding disposal of the property could be

made.

7. The Hon'ble High Court of Orissa, following the earlier

judgment of the Hon'ble Madhya Bharat High Court in Tara Chand vs.

The State2, had taken the view that provisions of Section 452 Cr.P.C.,

with regard to disposal of the property would not be applicable, as the

trial had not concluded. Therefore, Section 457 (2) Cr.P.C., would be

applicable.

8. After holding that Section 457 Cr.P.C., would be applicable,

the Hon'ble High Court of Orissa had also taken the view that the only way

to determine the entitlement of the petitioner therein, is to make an

enquiry as envisaged under Section 452 Cr.P.C.

9. In the present case, an enquiry under Section 457(2)

Cr.P.C., as interpreted by the Hon'ble High Court of Orissa in the aforesaid

judgment, would mean that the property would have to be handed over to

the person who would be entitled to the said property.

10. The persons entitled to the said property would be the legal

heirs of the husband of the petitioner, even if it is assumed that the house

has been built by using the funds obtained from the husband of the

petitioner. It would therefore entail an enquiry by the trial Court to

AIR 1951 Madhya Bharat 154 = 1951 (52) Cri LJ 1476 5 RRR,J Crl.P.No.1906 of 2022

ascertain between the legal heirs of the late husband of the petitioner as

to whether the house had been constructed by using the funds obtained

from the husband of the petitioner, or whether the house has been

constructed by the petitioner herself. The Court, thereafter, has to

handover the possession of the document depending upon a decision in

this regard. However, it would also to be open to the legal heirs of the

husband of the petitioner to resolve the dispute between them and

approach the trial Court to handover the document to the person

acceptable to all the legal heirs.

11. Accordingly, this criminal petition is allowed setting aside the

order dated 23.02.2022 passed in Crl.M.P.No.46 of 2022 in C.C.No.50 of

2008 by the trial Court and remanding the matter back to the trial Court

for an appropriate decision and release of the document after a proper

enquiry is conducted in the terms mentioned above.

As a sequel, pending miscellaneous petitions, if any, shall stand

closed.

__________________________ R. RAGHUNANDAN RAO, J.

2nd November, 2022.

Js.

                          6                             RRR,J
                                       Crl.P.No.1906 of 2022


      HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO




               Crl.P.No.1906 of 2022




                2nd November, 2022
Js.