Suchismita Behera @ Prusty & Others vs State Of Orissa (Vigilance)
2025 Latest Caselaw 145 Ori

Orissa High Court

Suchismita Behera @ Prusty & Others vs State Of Orissa (Vigilance) on 5 May, 2025

                     THE HIGH COURT OF ORISSA AT CUTTACK

                                   CRLA No.1007 of 2024
         (In the matter of an appeal under Section 17 of the Orissa Special
         Court's Act, 2006)

         Suchismita Behera @ Prusty & others          .......          Appellants

                                              -Versus-

         State of Orissa (Vigilance)            .......                Respondents

& others

For the Appellants : Mr. B.K. Sharma, Advocate For the Respondents : Mr. Srimanta Das, Sr. S.C., Vigilance

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing:08.11.2024 : Date of Judgment: 05.05.2025

S.S. Mishra, J. The present appeal has been filed under Section 17 of the

Orissa Special Courts Act, 2006, challenging the order dated 10.09.2024,

passed by the learned Authorized Officer, Special Court, Bhubaneswar,

in Confiscation Case No. 2 of 2011, whereby the petition filed by the

appellants under Section 19 of the Orissa Special Courts Act, 2006,

seeking release of the confiscated properties of late Suryanarayan

Behera, has been rejected.

2. The present appeal arises from the confiscation proceedings

initiated against late Suryanarayan Behera, who alleged to had

accumulated assets disproportionate to his known sources of income.

The Vigilance Department registered a case against him under Sections

13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988, on

the allegation of amassing wealth to the known source of income during

the period from 21.07.1990 to 07.06.1995. Pursuant to the investigation,

trial was initiated in T.R. Case No. 04/06 of 2008/2002 before the

learned Special Judge, Special Court, Bhubaneswar against the said

accused Suryanarayan Behera.

3. On 16.04.2012, the learned Authorized Officer, Special Court,

Bhubaneswar, passed an order holding that late Suryanarayan Behera

had amassed assets disproportionate to his lawful income. Consequently,

the Officer directed that the movable and immovable properties of the

accused be confiscated to the Government of Odisha, free from all

encumbrances. Aggrieved by this order, late Suryanarayan Behera filed

CRLA No. 298 of 2012 before this Hon'ble Court, challenging the

legality of the confiscation order.

4. During the pendency of the appeal, this Court, vide order dated

18.05.2012 in Misc. Case No. 772 of 2012, directed that the confiscated

assets shall not be auctioned or disposed of, subject to the appellant

furnishing a bank guarantee of Rs.10 lakhs in favor of the Authorized

Officer. In compliance with this direction, late Suryanarayan Behera

furnished the bank guarantee on 30.05.2012, which is being

subsequently renewed from time to time.

5. While the appeal was still pending, late Suryanarayan Behera

passed away on 04.06.2021. Following his demise, the learned Special

Judge, Special Court, Bhubaneswar, vide order dated 15.09.2021,

declared that the trial proceedings in T.R. Case No. 04/06 of 2008/2002

abated. Thereafter, on 06.07.2024, the legal heirs of late Suryanarayan

Behera, being the present appellants, filed a petition under Section 19 of

the Orissa Special Courts Act, 2006 (for short "the Act, 2006"), before

the learned Authorized Officer, Special Court, Bhubaneswar, seeking

release of the confiscated property and money.

6. On 10.09.2024, the learned Authorized Officer rejected the

petition, stating that the legality of the confiscation order dated

16.04.2012 is pending adjudication before this Court in CRLA No. 298

of 2012, and as such, no order for release of property could be passed.

Aggrieved by this rejection, the present appeal under Section 17 of the

Act, 2006, has been preferred before this Court.

7. Heard Mr. B.K. Sharma, learned counsel for the appellants and

Mr. Srimanta Das, learned Senior Standing Counsel for the Vigilance

Department.

8. The learned counsel for the appellants, who are the legal heirs of

late Suryanarayan Behera, contended that the confiscation of property

and money must be contingent upon the final outcome of the criminal

trial. In the present case, late Suryanarayan Behera passed away on

04.06.2021, and the trial proceedings in T.R. Case No. 04/06 of

2008/2002 has been abated by the learned Special Judge, Special Court,

Bhubaneswar, on 15.09.2021. Since the criminal proceedings cannot be

concluded with a conviction, the appellants argued that the confiscated

property and money should be withdrawn and the same shall be returned

to them.

9. It was further submitted that if the Authorized Officer has the

jurisdiction to release confiscated property upon acquittal, there is no

valid reason why the same officer would lack jurisdiction to release the

property upon the accused's death. The appellants contended that the

death of an accused before conviction prevents the prosecution from

proving guilt, and therefore, continuing to hold the confiscated property

in such circumstances would be unjust and contrary to law.

10. Additionally, it was submitted that the learned Authorized

Officer failed to exercise his jurisdiction under Section 19 of the Act,

2006, which empowers the Officer to pass an order for release of

confiscated property even if no order under Sections 15 or 18 of the Act

has been passed. The appellants argued that confiscation is carried out in

anticipation of a conviction, and when conviction is no longer possible

due to the accused's death, the very foundation of the confiscation order

ceases to exist.

11. Mr. Sharma, learned counsel for the appellants further pointed

out that this Court, vide order dated 18.05.2012, had directed that the

confiscated property shall not be auctioned or disposed of till the

disposal of the appeal, subject to the appellant furnishing a bank

guarantee of Rs.10 lakhs. In compliance with this order, late

Suryanarayan Behera furnished the bank guarantee on 30.05.2012, which

has been duly renewed from time to time. The appellants argued that

they have fulfilled all legal obligations and, therefore, are entitled to the

release of the confiscated property.

12. In conclusion, the appellants prayed for the setting aside of the

order dated 10.09.2024 passed by the learned Authorized Officer and

sought refund of all confiscated properties and money.

13. Mr. Das, learned counsel for the State Vigilance Department,

appearing for the respondents, vehemently opposed the appeal,

contending that the appellants were not entitled to the release of the

confiscated property. It was submitted that the petition under Section 19

of the Act, 2006, filed by the appellants is misconceived, as the provision

allows for release of confiscated property only in cases where the order

of confiscation is annulled or modified in appeal, or in the event of an

acquittal in the trial. Since the order of confiscation dated 16.04.2012

remains unaltered, and the appeal against it (CRLA No. 298 of 2012) is

still pending before this Court, the Authorized Officer has rightly refused

to release the property.

14. The respondents further argued that the learned Authorized

Officer had become functus officio after passing the final order of

confiscation, meaning thereby he had no further jurisdiction to modify or

annul the same. Any order modifying or setting aside the confiscation by

the authorized officer would amount to a review, which is not

permissible under the law.

15. It was also submitted that the legal heirs of late Suryanarayan

Behera are beneficiaries of the ill-gotten properties, and therefore, they

cannot claim a right to have the confiscated property released in their

favour. The confiscation of assets was based on the finding that late

Suryanarayan Behera had amassed disproportionate assets known to his

source of legitimate income, and merely because the trial abated due to

his demise does not automatically entitle the appellants to reclaim the

confiscated property.

16. The respondents contended that the appellants had already

filed CRLA No.298 of 2012, challenging the final order of confiscation,

and by filing a separate petition under Section 19 of the Act, they were

misusing the judicial process to gain an advantage to which they are not

entitled at this stage. The respondents maintained that the outcome of

CRLA No.298 of 2012 will determine the fate of the confiscated

property, and therefore, the present appeal is premature and ought to be

dismissed.

17. In conclusion, the respondents prayed for the dismissal of the

present appeal, asserting that the confiscated property should not be

released unless the order of confiscation is overturned by this Hon'ble

Court in CRLA No.298 of 2012.

18. Upon consideration of the contentions advanced and perusal of

the materials on record, this Court finds that the confiscation under the

Orissa Special Courts Act, 2006 is intrinsically connected with the

outcome of the trial proceeding under Section 13(1)(e) of the Prevention

of Corruption Act. The procedure envisaged under Sections 13 to 19 of

the Act contemplates that confiscation is contingent upon the eventual

conviction of the accused in the principal crime for which he faces trial.

In the present case, with the death of the accused, the trial has been

abated. There is, therefore, no prospect of a determination of guilt or

prosecuting securing conviction of the accused. It follows that there

exists no lawful basis to sustain an order of confiscation which was

passed solely on the anticipation of such conclusion of the trial. Thus, in

the considered opinion of this Court, the continuance of confiscation

proceedings and retention of the property despite the abatement of the

trial offends the principle of fairness and violates the constitutional right

of the legal heirs to property in the absence of adjudicated criminal

liability of the deceased.

19. The rejection of the application under Section 19 of the Act,

2006 by the Authorized Officer on the sole ground that the appeal is

pending is also flawed in law. Section 19 of the Act, 2006 is not

confined merely to the cases of acquittal or annulment of conviction of

the accused by appellate courts but encompasses broader circumstances

where the basis of confiscation ceases to exist, including death and legal

abatement. The Authorized Officer in such cases is not rendered

powerless; rather, he is vested with the authority to redress the wrongful

deprivation of property when the presumption of guilt no longer holds

legal currency.

20. While dealing with the scope of Section 19 of the Act, 2006, this

Court in the case of Renubala & others vs. State of Odisha (Vigilance),

reported in CRLMP NO.634 of 2014 held as under:

"7. Chapter-III of the Act, 2006 deals with confiscation of property. Section of the Act, 2006 mandates that upon receipt of an application under the said provision Authorized Officer shall serve a notice on the person in respect of whom the application has been made calling upon him to show cause as to why all or any money or property, or both should not be declared to have been acquired by means of the offence alleged to have been committed by him, confiscated to the State Government in compliance of provision under Section 14 of the Act, 2006 After giving a reasonable opportunity of hearing to the person upon whom notice under Section 14 has been served, he may pass an order confiscating all or any part of the money as well as the property so involved to be confiscated to the State free from all encumbrances. Where any money or property. or both have been confiscated to the State, the Authorized Officer, under the provisions of Section 16 of the Act 2006, shall make an order directing the person affected as well as any other person, who is in possession of such property or money, to deliver possession thereof to concerned Authorized Officer or to any officer duly authorized by him in that behalf within the time specified in the order. Section 19 deals with refund of confiscated money or property, reads as follows:-

"19. Refund of confiscated money or property.- Where an order of confiscation made under Section 15 is modified or annulled by the High Court in appeal or where the person affected is acquitted by the Special Court, the money or property or both shall be returned to the person affected and in

case it is not possible for any reason to return the property, such person shall be paid the price thereof including the money so confiscated with the interest at the rate of five percent per annum thereon calculated from the date of confiscation."

8. On a close reading of Section 19 of the Act, 2006, it is abundantly clear that order of confiscation passed under Section 15 of the Act. if either modified or annulled by the High Court under Section 17 of the Act, or where a person facing trial is acquitted by the Special Court from the charges leveled against him, the money or property, or both so confiscated, shall be refunded to him and where it would not be possible on the part of the Authorized Officer to and/or the money or property, or both to the person affected, he can direct that such person should be paid the of the property including money, so confiscated, with interest per annum. From a compendious reading of the aforesaid provisions, viz., Sections 13, 14, 15, 18 and 19 of the Act 2006, it is crystal clear that the Authorized Officer is only competent authority to refund and/or return the money or property so confiscated.

9. In the instance case, although a proceeding for confiscation in Confiscation Case No. 1 of 2009 was initiated on the file of the Authorized Officer under Section 13 of the Act, 2006, no order of confiscation as required under Section 15 of the Act could be passed before the death of the person affected, namely, late Khetrabasi Das. On the death of the person affected, Confiscation Case No. 1 of 2009 was dropped. Thus, an obvious question that arises as to whether the Authorized Officer would be competent to pass an order to refund/release the money or property so seized in a proceeding under the provisions of the P.C. Act. In the instance case, initiation of confiscation proceeding under the provisions of the Act, 2006 can not be questioned because the Court can entertain a petition under Section 13 of the Act irrespective of the fact that cognizance of offence under the Act has not been taken. On and from the date, the Authorized Officer takes cognizance of the petition and issues notice to the person affected under Section 14 of the Act, 2006, the trial

Judge lacks jurisdiction to deal with the said property involved in the confiscation proceeding. Thus, it is only the Authorized Officer, who can deal with the property in the manner prescribed under the provisions of the Act, 2006. No doubt, the Authorized Officer has jurisdiction to refund/return the money or the property, or both involved in a confiscation proceeding under two contingencies, such as -

(i) when the order of confiscation made under Section 15 is modified or annulled by the Court in appeal under Section 17 of the Act, 2006; and

(ii) whether the person affected is acquitted by the Special Judge?

Thus, Section 19 of the Act, 2006 mandates that when the affected person is acquitted of the offence alleged against him, the Authorized Officer is under obligation to refund the money and return the properties so confiscated. On and from the date when a proceeding for confiscation is initiated pursuant to an application under Section 13 of the Act, 2006, the Authorized Officer takes control of the properties so involved and will act in accordance with the provisions of the Act, 2006. It necessarily implies that the Special Judge before whom the trial is lacks jurisdiction to deal with the property so seized. When the Authorized Officer has the jurisdiction to release the money and property confiscated after acquittal of the person affected, there is no reason as to why he would lack jurisdiction or competence to deal with the property after the death of the person affected, whether or not order under Sections 15, 16 or 18 of the Act, 2006 has been passed. Release or refund of the property or money does not have any bearing as to whether or not the possession of the money or property involved has been confiscated or the possession of the same has been taken over by the Authorized Officer. It has the same power to pass an order under Section 19 even if no order has been passed under Section 15 or 18 of the Act, 2006.

21. It is also relevant to observe that the continuation of

confiscation proceedings or requiring further reinvestigation would

serve no practical purpose and would in fact defeat the constitutional

guarantee of a speedy trial. The death of the accused precludes the

possibility of a trial and even the probability of reopening the matter

posthumously is ruled out.

22. Upon the death of the principal accused before the conclusion of

the trial, the trial abated, therefore, the trial virtually comes to an end,

and no conviction or acquittal is recorded. Legally, the accused died as

an innocent person, as the presumption of innocence unless proven

guilty reinforced. In strict legal parlance although abatement of trial

akin to acquittal, but doctrinally, the situation could be termed as

"deemed acquittal" or in other words "not convicted". Since in this case

Suryanarayan Behera has died while facing trial he is "not convicted"

or "deemed acquitted". The confiscation of property under the Orissa

Special Courts Act being contingent upon the conviction of the

accused, the only corollary is that the property under confiscation is

liable to be released. Section 19 is the provision under the Act that

empowers the Authorized Officer to pass appropriate orders. Hence,

there was no escape under law for the Authorized Officer to pass such

orders in accordance with law on the application of the legal

representatives of the accused once the trial stands abated after the

death of the accused.

23. In light of the above discussion, this Court is of the opinion that

the impugned order rejecting the application of the appellants under

Section 19 of the Act is an act in accordance with law. The Authorized

Officer, Special Court has the power to decide the application under

Section 19 of the Act in the given situation. Hence, the impugned order

dated 10.09.2024 passed by the Authorized Officer, Special Court,

Bhubaneshwar in Confiscation Case No.2 of 2011 is hereby set aside

and the matter is remanded back to the Authorized Officer to decide the

application under Section 19 of the Act afresh in accordance with law.

24. The CRLA is accordingly disposed of.

(S.S. Mishra) Judge

The High Court of Orissa, Cuttack Dated the 5th May, 2025/Subhasish

Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack.

Date: 05-May-2025 19:56:49