The State Of Maharashtra And Anr. vs Ishwar Piraji Kalpatri
2002 Latest Caselaw 284 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the advocate for the appellant and the respondent in person. Perused the record.

2. This appeal arises from judgment and order dated 27th October, 1999 passed the

learned Chief Judge of the Court of Small Causes at Bombay. The facts in brief relevant for the decision are that pursuant to F.I.R. being lodged of criminal misconduct by the respondent, who was then working as Asstt. Commissioner in Greater Bombay, the Home Department of Maharashtra Government by an order dated 28th August, 1998 authorised the appellant No. 2 herein to move for an attachment of the property of the respondent in terms of Section 3(1} of Criminal Law Amendment Ordinance, 1944 hereinafter called as "the said Ordinance". Pursuant thereto, an application dated 24-4-1989 came to be filed before the learned Chief Judge, Small Causes Court at Bombay and an order of interim attachment came to be passed on the very day i.e. 28th April, 1989 in terms of prayer clause under Section 4(1) of the said Ordinance. The same was registered as A.C. No. 1/1989. The respondent herein filed his reply on 8th September, 1989 and thereafter, presented an application raising various issues objecting the attachment, one of them being that pursuant to the expiry of period of three months from 28th April, 1989 the respondent was entitled for an order of release of attachment. The same was contested by the appellant. However, the learned Chief Judge of the Small Causes Court by the impugned prder while rejecting the said contention of the appellant held that in view of expiry of the period of three months from the date of sanction i.e. pursuant to the order of authorisation granted to the appellant No. 2 to move for the attachment of property of the respondent, the interim order granting attachment of the property of the respondent was liable to be set aside and the property to be released. Hence the present appeal.

3. Upon hearing the learned advocate for the appellant and the respondent in person and on perusal of records, the following questions arise for determination in the matter:

(1) Whether the proceedings relating to the attachment of the property and the disposal thereof under the said Ordinance are of civil nature or not?

(2) Whether the order of attachment passed under Section 18 of the said Ordinance prior to 9th September, 1988, but having not completed the period of three months from the date of passing of such

order, would continue to remain in force for a period of one year on account of amendment brought about by P. C. Act of 1988 whereby the expression "three months" in the said Section 10 of the said Ordinance was substituted by the "one year".

4. As regards first point for consideration referring to the decision of the learned single Judge of Andhra Pradesh High Court in the matter of State of Hyderabad v. K. Venkateshwara Rao, reported in 1973 Cri LJ 1351, it is sought to be contended by the respondent that "The District Judge, empowered to pass the order relating to attachment under the said Ordinance is a Criminal Court and therefore the appeal if any against such order by the District Judge under the said Ordinance is to be dealt with on the criminal side by the High Court and hence the appeal cannot be heard on the civil side. As against this it is the case of the learned Advocate of the appellant that the proceedings before the District Judge relate merely to the attachment of the property and disposal thereof and even for that purpose the provisions of Civil Procedure Code are made applicable and the same are civil proceedings and the appeal is to be dealt with on the civil side by the High Court."

5. There is no doubt that the learned single Judge of the Andhra Pradesh High Court in K. V. Rao's case (1973 Cri LJ 1351) has held that "the special powers are conferred upon the District Judge under the said Ordinance in relation to the attachment of the property. But the fact remains that the said Ordinance deals with the schedule of offences which are criminal in nature and therefore, irrespective of the special powers conferred are those under C.P.C., the District Judge acts as a Criminal Court". It has also been held that the fact that duration of attachment is made depending upon the result of the criminal proceeding in the Court, which has taken cognizance of the alleged scheduled offence, also shows that a different method has been adopted in regard to the attachment than the one provided in the C.P.C. and that though there is no doubt that new Court or new forum is provided under the Ordinance the same has been done as there is no other provision in the Criminal Procedure Code for securing such orders of attachment. Considering the same it has been held by the

Andhra Pradesh High Court that the District Court acting under the said Ordinance is a Criminal Court subordinate to the High Court and that Section 561A of the Criminal Procedure Code (Old Code) was therefore, attracted in the case before the said Court. Undisputedly, the Court was dealing with the order passed under the said Ordinance which was sought to be challenged under Section 561A of Criminal Procedure Code as was then in force. It has also been observed in the said decision that the said Ordinance as its name indicates Amendment of Criminal Law in relation to scheduled offences.

6. There is no doubt that the name of Ordinance does suggest the same to be an amendment to the Criminal Law. However, the perusal of the preamble of the Ordinance discloses that the same has been promulgated for prevention, disposal or concealment of the property procured by means of certain offences. It further discloses that the same was promulgated as it was found necessary to provide for preventing the disposal or concealment of money or other property procured by means of certain offences punishable under the law specified therein. The said Ordinance, however, does not deal with the offences themselves.

7. Under Section 3 of the said Ordinance when the Government has reason to believe that any person has committed any scheduled offence or offences the Government may whether or not any Court has taken cognizance of the offences, authorise making of an application to the District Judge, within the local limits of whose jurisdiction such person ordinarily resides or carries any business, for attachment under the said Ordinance of money or other property which the Government believes such person to have procured by means of the offences. Sub-section (2) thereof provides that the provisions of Order XXVII of the First Schedule to the Code of Civil Procedure shall apply to such proceedings as they apply to the suits by the Government. According to sub-section (3) an application under sub-section (1) of Section 3 has to be accompanied by one or more affidavits disclosing the details specified in the said sub-section.

8. Section 4 provides for an order of ad interim attachment by the District Judge unless for the reasons to be recorded in writ-

ing is of the opinion that there exists no prima facie ground for believing that such person has committed any scheduled offences or that he has procured thereby any money or other property. On passing of any such order a notice is required to be issued to such person as well as to all the persons represented to him is having or being likely to claim erest or title in the properties attached. Under sub-section (4) of Section 4 any person claiming an interest in the attached property or any portion thereof may, notwithstanding that no notice has been served upon him under this section, make an application to the District Judge at any time before an order is passed under subsection (1) or sub-section (3) of Section 5. In terms of Section 5(1) if no cause is shown and no objections are made under Section 4 on or before the specified date, the District Judge shall forthwith pass an order making the ad interim order of attachment absolute. Under sub-section (2) thereof, in case cause is shown or any objections are made as aforesaid, the District Judge shall proceed to investigate the same, by following the procedure and exercise all powers of the Court in hearing a suit under the Code of Civil Procedure. Under sub-section (3) the District Judge after the aforesaid investigation has to pass an order either making ad interim order absolute or varying it by releasing a portion of the property from the attachment or withdrawing the order subject to the conditions specified therein.

9. Section 6 speaks of attachment of the property of mala fide transferees and provides for procedure to be followed in such cases. Section 7 deals with the execution of orders of attachment and provides that an order of attachment of property under said Ordinance shall be carried into effect so far as may be practicable in the manner provided in C.P.C. 1908 for the attachment of the property for execution of the decree. Section 8 makes provision for security to be furnished in lieu of attachment by the person whose property has been or is about to be attached. Section 9 deals with the administration of the attached property and it includes a power of appointment of a receiver to manage the property and on such appointment being made the provisions of Rules 2, 3, 4 and 5 or order XL of First Schedule of the Code of Civil Procedure 1908 are made applicable. Section 9A deals with

the matters pertaining the administration of attached property where Court ordering attachment has ceased to exercise jurisdiction in India.

10. Section 10 provides for duration of attachment. It provides that an order of attachment of property made under said ordinance shall, unless it is withdrawn earlier in accordance with the provisions of the said Ordinance, continue in force, in case where Court has taken cognizance of the alleged scheduled offence at the time when the order is applied for, for one year from the date of order under Sub-section (1) of Section 4 or Sub-section (2) of Section 6, as the case may be, unless cognizance of such offence is in the meantime so taken or unless the District Judge on application by the agent of the Government thinks it proper and just that the period should be extended and passes an order accordingly or in case where a Court has taken a cognizance of the alleged scheduled offences whether before or after the time when the order was applied for until the orders are passed by the District Judge in accordance with the provisions of the said Ordinance after the termination of the criminal proceedings. Section 11 provides for the appeals against the order passed under Sections 4 and 6.

11. Section 12 deals with the provisions relating to Criminal Courts to evaluate property procured by scheduled offences and Section 13 provides for disposal of attached property upon termination of criminal proceedings.

12. Bare perusal of above referred provisions in the said Ordinance disclose that the power relating to the attachment of the property of a person accused of commission of scheduled offences vests with the District Judge and that the function of a District Judge under the said Ordinance shall in a Presidency Town be exercised by the Chief Judge of the Small Cause Court. The expression "District Judge" though has been used in each and every section of said Ordinance which deals with the matter pertaining to the attachment of the property and disposal thereof, neither under the said Ordinance nor under the Criminal Procedure Code nor under the Indian Penal Code has been defined. In terms of Section 2(17) of the General Clauses Act, 1897 the expression "District Judge" is defined to mean the Judge of principal Civil Court of original jurisdiction who shall not include a High Court in exercise of ordinary or extraordinary original civil jurisdiction. Apparently the expression signifies that it relates to the Judge of Principal Civil Court of original jurisdiction.

13. It cannot be also disputed that the procedure to be followed by the District Judge while dealing with the matter pertaining to the attachment of the property as well as for disposal thereof is in accordance with the provisions relating to the same subject under the Code of Civil Procedure. Even for the purpose of initiation of the proceedings for attachment of the property of the person accused of commission of the scheduled offences, the Government has to adopt the procedure provided under Order XXVII of Code of Civil Procedure while approaching the District Judge. Apparently therefore, an application for seeking an order under Section 4 of the said Ordinance though not be in strict sense called "plaint" it has to disclose the relevant facts which a plaintiff is required to disclose in his plaint while seeking any relief from the Civil Court. Like the party seeking attachment of the properties under Order 38 of C.P.C. is required to make out a prima facie case for necessary relief by producing sufficient materials in support of justification for attachment, similarly the Government approaching the District Judge has to disclose minimum required facts and the materials as enumerated in Sections 3 and 4 of the said Ordinance to secure ad interim attachment order and the District Judge unless such materials are placed on record is not obliged to pass the order of ad interim attachment. No doubt Sub-section (1) of Section 4 specifically provides that once the Government places on record the materials disclosing the person being involved in commission of any scheduled offences, the order of ad interim attachment cannot be refused unless District Judge justifies the order of such refusal by reasons to be recorded in writing about the absence of prima facie grounds for believing that such person is involved in commission of scheduled offences. All this has to be done by following the procedure applicable to any proceedings of civil nature and it does not include any step which normally relates to the criminal proceedings.

14. The Apex Court in S.A.L. Narayan Row v. Ishwarlal Bhagwandas, while considering the Issue as to whether the proceedings pertaining to the recovery of the taxes are civil proceedings or not, has observed that (Paras 8 and 16) :

"expression "Civil Proceeding" is not defined in the Constitution nor in the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute, and class relief for breach thereof."

It has been further held that ;

'The character of the proceedings, on our judgment, depends not upon the nature of the tribunal which is invested with authority to grant relief, but upon the nature of the right violated and the appropriate relief which may be claimed. A civil proceeding is therefore, one in which a person seeks to enforce by appropriate relief the alleged infringement of the civil rights against another person or the State, and which if the claim is proved would result in declaration express or implied of the right claimed and relief such as payment of debt, damages, compensation, delivery of specific property, enforcement of personal rights determination of statutes etc."

It has also been further held that :

'There is no ground for restricting the expression "civil proceeding" only to those proceedings which arise out of civil suits or proceedings which are tried as civil suits, nor is there any rational basis for excluding from its purview proceedings instituted and tried in the High Court in exercise of its jurisdiction under Article 226, where the aggrieved party seeks relief against infringement of civil rights by authorities purporting to act in exercise of the powers conferred upon them by revenue statutes."

15. Considering the provisions of the said Ordinance and the applicability of various provisions of Civil Procedure Code relating to the attachment, disposal of the property so attached, the expression "District Judge" used therein, the definition of the said expression in the General Clauses Act and the decision of the Apex Court in Ishwarlal's case , it cannot be said that the proceedings under the said Ordinance in relation to the attachment and disposal of the property are not of civil nature. With 'respect I am unable to persuade myself to

agree with the decision of the learned single Judge of Andhra Pradesh High Court referred to above. Apparently, the definition of the District Judge under General Clauses Act, the decision of the Apex Court of Ishwarlal's case and the fact that the procedure for to the attachment of the property and disposal thereof is required to be in accordance with the various provisions of C.P.C. do not appear to have been brought to the notice of the Court in the said decision. Rather the arguments were on the assumption that the proceedings under the aid Ordinance are relating to the scheduled offences. As already observed above. the preamble of the ordinance itself abundantly makes it clear that though the Ordinance is called as "Criminal Law Amendment Act 1944" in fact it relates to attachment and disposal of the property of a person who has procured such property by means of certain scheduled offences, and the Ordinance does not deal with the offences by themselves. Entire proceeding under the said ordinance relate exclusively to the attachment of the property and consequences of such attachment the same no way relate to or deal with the scheduled offences. The relief that can be granted in such proceeding relate to the property sought to be attached and nothing beyond that. The investigation of objection to attachment has necessarily be in terms of the procedure prescribed under C.P.C. It has to be in exercise of the powers of the Court hearing a suit under C.P.C. Any order passed by the District Judge in such processing can be executed in the same manner as provided under C.P.C. for attachment of property in execution of a decree. Being so the first point for consideration is to be answered as that the proceedings pertaining to attachment and disposal thereof under the said Ordinance are of civil nature and therefore the appeal against the order passed under Section 4 or 6 of the said Ordinance is in to be dealt with on civil side of the appellate jurisdiction of this Court. Hence, no fault can be found with the appeal having been filed and entertained on the civil side of the appellate jurisdiction and the objection sought to be raised by the respondent in that regard is to be rejected being devoid of substance.

16. The second point relates to the duration of the order passed under Section 4

of the said Ordinance. While dealing with the said point it will be appropriate to scan through Section 10 of the said Ordinance. Section 10 reads thus :

"Section 10: Duration of attachment--An order of attachment of the property under this Ordinance shall, unless it is withdrawn earlier in accordance with the provisions of this Ordinance, continue in force:

(a) Where no Court has taken cognizance of the alleged scheduled offence at the time when the order is applied for one year from the date of the order under Sub-section (1) of Section 4 of Sub-section (2) of Section 6, as the case may be, unless cognizance of such offence is in the meantime so taken or unless, the District Judge on application by the agent of the State Government or as case may be the Central Government thinks it proper and just that the period should be extended and passes an order accordingly; or

(b) Where a Court has taken cognizance of the alleged scheduled offence whether before or after the time when the order was applied for until orders are passed by the District Judge in acordance with the provisions of this Ordinance after the termination of the criminal proceedings."

17. There is no dispute that prior to 9th Sept. 1988 duration period provided under Clause (a) was of "three months" and it was by P. C. Act 1988 with effect from 9th Sept. 1988 it was amended by substitution of expression "one year" in place of the expression "three months". In other words, till 8th Sept. 1988 the duration of attachment order under Section 4 read with Section 10(a) was of three months and from 9th Sept. 1988 the duration was made of one year. The facts narrated in the case hereinabove disclose that, the ad interim order under Section 4 was passed on 24th April, 1989. However, the authorisation for seeking an order of attachment was made by the State Government on 26th August, 1988. The learned Judge of Small Causes Court, referring to the fact that the authorisation was obtained prior to the enforcement of the amendment to Section 10(a) and there being no further authorisation after the expiry of three months therefrom, has held that the period of duration of attachment in relation to the order passed was of duration of three months.

18. Bare reading of Section 10 quoted above would disclose that, the period of attachment under Section 10 of the said Ordinance relates to the order of attachment and not to the authorisation for making an application to the District Judge for such an order of attachment. This is apparent from the expression "an order of attachment" in the main part of Section 10 read with the expression" for one year from the date of the order" in Clause (a) thereof. This is also apparent from the expression "for one year from the date of order under Sub-section (1) of Section 4 or Sub-section (2) of Section 6" in Clause (a) of Section 10. Apparently therefore, the duration of attachment relates to the date of order of attachment passed either under Section 4 or Section 6 and not to any "order of authorisation" passed under Section 3 of the said Act. The Clause (a) of Section 10 specifically makes reference to the order being under Section 4 or under Section 6 and not under Section 3. Being so the learned Judge erred in misconstruing the provisions of Section 10 while holding that the duration period is to be linked with the order of authorisation by the Government for an application to the District Judge for the order of attachment.

20. It was sought to be contended on behalf of the respondent that under any circumstances, the order of attachment can be passed, only upon the authorisation under Section 3 and in the absence of such authorisation there cannot be any order of attachment and in case any authorisation was granted prior to 9th Sept. 1988, the law relating to the duration of attachment which was in force on date of grant of the authorisation would be applicable. Bare reading of Section 10 discloses that the provisions relating to the duration of attachment has nothing to do with the rights of the parties relating to the property but the same relates to the procedure before the Court of District Judge while dealing with the matter pertaining to the attachment of the property under the said Ordinance. It is a period of limitation which is prescribed for the subsistence of attachment order passed under the said Ordinance. Neither Section 10 nor the provisions contained in Section 4 or 6 relate to any substantive right as such of the parties. All these provisions are pertaining to the procedure to be followed by the District Judge in the matter when the judge

is approached with an application for attachment of property of a person accused to have been involved in commission of scheduled offences. Being so the provisions contained in Section 10 are to be held to be part of procedural law.

21. Apex Court in Anant Gopal Sheorey v. The State of Bombay, reported in AIR 1956 SC 915, while dealing with certain amendments carried out to Code of Criminal Procedure in relation to right of accused to be a witness in his defence observed that; "according to the provisions of the unamended Code an accused person could not appear as a witness in his defence for the purpose of enabling him to explain circumstances appearing in the evidence against him the Court could put such questions as it considered necessary. Section 118 of the Evidence Act deals with the persons who are competent to testify as witnesses but in view of Section 342 of unamended Code, no accused persons could appear as a witness and therefore Section 118 was inapplicable to such persons." Referring to the amendment brought about by way of introduction of Section 342A, Criminal Procedure Code, it was held that, "the question that arises for decision is whether to a pending prosecution the provisions of the amended Code have become applicable. There is no controversy on the general principles applicable to the case. No person has vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode"

22. In Union of India v. Sukumar Pyne, , the Apex Court while reiterating its view in Shiv Bahadur Singh v. State of Vindhya Pradesh, held that; "a person accused of the commission of an offence has no vested right to be tried by a particular Court or a particular procedure except in so far as there is any constitutional objection by way of discrimination or the violation of any other fundamental right is involved". It is further observed that, "no person has vested right in any course of procedure (vide Maxwell 11th Edition, p. 216) and we see no reason why this ordinary rule should not prevail in the present case." It

was also held therein that: "If it is a matter of procedure, then-it is not necessary that there should be a special provision to indicate that the new procedural law is retrospective."

23. In M/s. Tikaram and Sons Ltd. v. The Commissioner of Sales Tax U.P., while considering the authority of the Commissioner of Sales Tax to make reference in view of Amended Act 1954, it was sought to be contended that the Commissioner did not have right to apply for reference because the right did not exist when the appellants had made the application for revision though the right did exist on the date on which the Commissioner had applied for a reference. Rejecting the contention it was ruled that statute should be interpreted as far as possible, so as to respect vested rights but the said rule had no application to Tikaram's case as by amending the Section 11 of the Act the Commissioner also was empowered to ask for a reference of a question to the High Court. Thereby no vested right or substantive right of the assessee was altered. On the contrary, the amendment was merely a procedural matter and that the general principle that the presumption against a retrospective construction has no application to an enactment which affect only the procedure and practice of Courts was held to be squarely applicable to the said case. It was further ruled that it is perfectly settled that if the legislature forms a new procedure, that instead of proceeding in this form or that, one should proceed in another and a different way, than the enforcement of right has to be in accordance with the new form of procedure and that alternations in the form of procedure are always retrospective, unless there is some good reasons or other why they should not be.

24. Similar view is taken by Apex Court in The State of Madras v. Lateef Hamid & Co. , wherein it was held that "no assessee has any vested right in the procedure prescribed under the 1939 Act. So long as the new procedure laid down in the 1959 Act does not interfere with any of his vested rights, an assessee has no right to claim that his case must be dealt with under the provisions of the repealed Act. It is well that the new procedure prescribed by law governs all pending cases.

25. In Gurubachan Singh v. Satpal Singh , it was observed that "It was sought to be argued on behalf of the accused/respondent therein that Section 113A of the Indian Evidence Act was inserted in the Statute Book by Act 46 of 1983 whereas the offence under Section 306 of I.P.C. was committed of June, 23, 1983 is i.e. prior to the insertion of the said provisions in the Indian Evidence Act. It has, therefore, been submitted by the learned Counsel for the respondents that the provisions of this section cannot be taken recourse to while coming to a finding regarding the presumption as to abetment of suicide committed by a married woman, against the accused persons". Rejecting contention it was held that 'The provisions of the said Section do not create any new offence and as such it does not create any substantial right but it is merely a matter of procedure of evidence and as such it is retrospective and will be applicable to this case." While delivering the said ruling the Apex Court has referred to certain observations of Halsbury's laws of England (Fourth Edition), Volume 44 pages 570 which can be advantageously quoted here under."

"The general rule is that all statutes, other than those which are merely declaratory or which relate only to matters of procedures or of evidence, are prima facie prospective, and retrospective effects is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature ........."

"The presumption against retrospective does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament."

26. Considering the provisions of law contained in Section 10 and the above referred decisions of the Apex Court, there is hardly any scope to contend that the provisions relating to duration of attachment can be otherwise than the matter pertaining to procedural law. Being so it is apparent that the order which was passed, under Section 4 in the case in hand was after coming into force of the amended provisions relating to

duration of attachment and apparently it would apply to the same. Even if the said order was to be passed, prior to 9th Sept. 1988 and provided the period of three months had not expired from the date of passing such order, even in that case, the amended provisions would have been applicable. As already observed above, the period of duration relates to the attachment and there can be attachment only after the order of attachment is passed and not merely because there is authorisation to move for the order of attachment. Being so Section 10 can come into play only after order of attachment is passed and not prior thereto. That apart, in the case in hand the order of attachment was passed after the date of 9th Sept. 1988. There is absolutely no substance in the contention that the unamended law of duration of attachment would be applicable to such order merely on account of the authorisation to move for such order was obtained prior to 9th Sept. 1988.

27. Undoubtedly, the learned Judge has disposed of the proceedings at the Initial stage itself as the learned Judge has not considered the matter on merits at all. As rightly submitted by the respondent, there are various other points raised in the matter on behalf of the respondent. None of those points have been considered by the learned Judge. It is also an undisputed fact that the charge sheet in the matter has also been filed on 8th Feb. 1990. Being so the effect thereof is also be considered before proceeding with the matter by the learned Judge.

28. For the reasons stated above, the impugned order cannot be sustained and is liable to be set aside and the matter remanded to the learned Judge with the direction to deal with the same in accordance with the provisions of law bearing in mind that the order of attachment was in force even on the day of filing of the charge sheet as the order of attachment was passed on 28th April, 1989 and had been enforce till 27th April 1990. The appeal is accordingly disposed of with no order as to costs. Record and proceeding be returned forthwith to the concerned Court.