Dr. Vinod Lahiri (Dead) Through ... vs State Of M.P. Through Special ...
2023 Latest Caselaw 7722 MP

                                            -1-


  IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
                      Criminal Appeal No.2672 of 2023
   Dr. Vinod Lahiri (dead) through Legal Representatives v/s The State of Madhya
                 Pradesh through Special Lokayukt Establishment
Indore, dated 11.05.2023
         Shri Anuj Bhargava, learned counsel for the appellant.
         Shri Vaibhav Jain, learned counsel for the respondent.
---------------------------------------------------------------------------------------

Heard on the question of admission.

02. The appeal is admitted for final hearing.

03. Also heard on I.A. No.6624/2023, which is an application for stay of the execution of confiscation order dated 31.12.2022 passed in Special Case No.3/2017.

04. Facts of the case in short are as under:-

4.1. The Special Police Establishment registered a case at Crime No.27/2012 against Dr. Vinod Lahiri (affected person No.1) and her wife Dr. Vidya Lahiri (affected person No.2) for the offences punishable under Section 13(1)(e) r/w section 13(2) of the Prevention of Corruption Act & Section 120-B of the Indian Penal Code.

4.2. Upon completion of investigation, charge-sheet was filed on 24.09.2014 before the Court of Special Judge, Ujjain alleging total wealth of affected persons No.1 & 2 during the check period to be Rs.4,11,14,372/- for other than known source of income. 4.3. On 14.02.2012, Madhya Pradesh Vishesh Nyayalaya Adhiniyam, 2011 (in short Vishesh Adhiniyam) came into force. The respondent submitted an application under Section 13(1) against the appellants. As per the averment made in the application, the respondent received information in respect of properties of affected persons No.1 & 2 alleged to have been

acquired by misusing their power and earning money illegally. They have purchased several properties and vehicle in their names and on the name of their children. After obtaining warrant, the respondent searched their house situated at 16 Sai Palace, Hospital Road, Lane No.1, Nagda and M.I.G. Indira Nagar, Ujjain, thereafter, prepared inventory of seized articles. As per the said inventory, household articles worth Rs.67,57,749/- and cash amount of Rs.3,49,700/- were found.

4.4. Affected person No.1 was appointed on the post of Assistant Surgeon with Public Health and Family Welfare Department, Guna, whereas his wife was appointed on the post of Assistant Female Surgeon. Both were posted together at various place. The check period was determined to be from 01.12.2000 to 10.02.2012. The raid was conducted on 10.02.2012.

4.5. The affected persons No.3 & 4 were impleaded in the application under Section 13(1) of the Vishesh Adhiniyam. The income of affected persons No.1 & 2 during check period was assessed to be Rs.1,76,62,816/- and the expenditure was shown as Rs.5,87,77,188/-, thereby indicating assets disproportionate to the known source to the extent of Rs.4,11,14,372/-.

4.6. Notices were issued to all the affected persons by the authorized officer bereft of necessary details as contemplated under the provisions of Section 14 of the Adhiniyam of 2011. In compliance to the said notice, the affected persons appeared before the authorized officer. During the course of confiscation proceedings, affected person No.1 expired on 09.05.2022, hence, other affected persons were brought on record as LRs.

05. Shri Anuj Bhargava, learned counsel for the appellants submits that the learned Special Judge haswrongly passed the order of confiscation

of properties of a dead person. Affected person No.1 is no more accused in the criminal case registered under the provisions of the Prevention of Corruption Act, therefore, the Special Judge ought not to have passed the order of confiscation of the properties of late Dr. Vinod Lahiri. On account of death of affected person No.1, the proceeding ought to have dismissed as abated. In support of his contention, he has placed reliance upon judgments delivered in the cases of Parmeshwari Sinha Widow of Late Kalika Prasad Sinha v/s The State of Bihar through Vigilance reported in 2015 SCC OnLine Pat 1360 and Renubala Das & Others v/s State of Odisha (Vigilance) reported in 2016 SCC OnLine 816.

06. It is further submitted that order of confiscation is not a final order and it is always subjected to the order passed by the Criminal Court and if the affected person is acquitted from all criminal charges, then the properties are liable to be released. In the present case, affected person No.1 cannot be convicted, as he is no more, therefore, his properties are not liable to confiscated.

07. Learned counsel for the appellant further submits that the appellants are residing in the properties mentioned at serial Nos.3, 4, 5, 6 and 27, therefore, they may be permitted to reside in the same as these properties were purchased by affected person No.1 during his lifetime. So far as immovable property at serial No.27 is concerned, they are in the name of Binny Lahiri and Abhishek Lahiri who are not public servant.

08. Shri Vaibhav Jain, learned counsel for the respondent contends that affected person No.1 and is wife i.e. affected person No.2 both were posted in the same hospital and acquired the movable and immovable properties worth Rs.4,11,13,554/- against their income of Rs.1,76,62,816/-. The prescribed authority has already granted liberty to the appellants that if

they want to use the properties, they can deposit present market value otherwise properties shall remain confiscated. Shri Jain, learned counsel further submits that proceedings are not liable to be abated on account of death of affected persons as provided under Section 15(3) of the Adhiniyam of 2011. It is further submitted that in proviso to Section 18(1), the appellant is liable deposit the rent of the properties for which they are liable to approach the prescribed authority for obtaining permission. It is further submitted that impugned order is a composite order in respect of disproportionate assets acquired by affected persons No.1 & 2 both.

09. I have heard learned counsel for the parties at length and perused the record.

10. The issue which requires consideration in this appeal is whether the properties of a dead person can be confiscated when he cannot be convicted by a Criminal Court, hence, proceedings under the Vishesh Adhiniyam are liable to be abated or not ? Learned counsel raised an important issue that order of confiscation is always subject to the order of conviction and upon acquittal, the properties are liable to be returned. These all are important issue which are liable to be examined in this appeal, but prima facie under Section 19 of the Adhiniyam of 2011, order of confiscation is liable to be set aside on acquittal in a criminal case. Admittedly, affected person No.1 cannot be convicted now as the proceedings has been abated against him on account of his death, but in these proceedings, he is being represented by legal heirs. Therefore, in respect of the immovable properties registered in the name of affected person No.1 for them the order of confiscation is liable to stayed.

11. Hence, in respect of the properties at serial Nos.3, 4 and 5, the order of confiscation shall remain stayed. So far as the property at serial

No.6 is concerned, which is in the name of affected person No.2, she has an option either to deposit the present market rate before the prescribed authority or pay the rent. Likewise, the properties at serial No.27 shall be at discretion of Binny Lahiri and Abhishek Lahiri either to deposit the amount at present market value of the property or pay the rent.

With the aforesaid observation, I.A. No.6624/2023 stands disposed of.

List the appeal for final hearing in due course.

(VIVEK RUSIA) JUDGE Ravi Digitally signed by RAVI PRAKASH Date: 2023.05.12 19:01:12 +05'30'