Naresh Paswan vs The State Of Bihar Through ...
2023 Latest Caselaw 4959 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (SJ) No.1371 of 2022
           Arising Out of PS. Case No.-81 Year-2010 Thana- VIGILANCE District- Patna
     ======================================================

1. Naresh Paswan Son of Late Dhibu Paswan the then District Transport officer, Nawada, address - Chitkohra Basti, Near Noor Masjid, P.O. Anisabad, P.S.- Gardanibagh, District - Patna Permanent address - resident of Village Tekni, P.S.- Rajoun, District - Banka. (Expunged)

2. Uma Devi Wife of Naresh Paswan address- Chitkohra Basti, Near Noor Masjid, P.S. Gardanibagh, District - Patna.

3. Amresh Kunal Son of Sri Naresh Paswan address- Chitkohra basti Near Noor Masjid, P.S. Gardanibagh, District - Patna.

... ... Appellant/s Versus

The State Of Bihar Through Vigilance

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Mrs. Vaishnavi Singh, Advocate Mr. Ritrik Thakur, Advocate Mr.Udbhav, Advocate For the Respondent/s : Mrs. Archana Palkar Khopde, Advocate Mr. Utkarsh Bhushan, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA CAV JUDGMENT

Date : 27-09-2023 I.A. No. 01 of 2023

The instant interlocutory application has been filed

on behalf of the appellants with a prayer to expunge the name

of appellant no. 1 namely, Naresh Paswan submitting that

during the pendency of the present appeal, appellant no. 1 died

on 24.08.2022.

2. It has been submitted on behalf of the appellants

that appeal has abated against appellant no. 1 due to his death Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

and his name be expunged from the array of the parties.

3. Having considered the death of appellant no. 1

Naresh Paswan, his name is ordered to be expunged from the

array of the parties and the appeal stands abated against him.

4. Accordingly, I.A. No. 01 of 2023 stands disposed

of.

Cr. Appeal (SJ) No. 1371 of 2022

5. The instant appeal has been filed under Section 17

of the Bihar Special Courts Act, 2009 (hereinafter referred to

as the 'Act, 2009') by the appellants namely, Naresh Paswan

(since deceased), Uma Devi (wife of late Naresh Paswan) and

Amresh Kunal (son of late Naresh Paswan) against the order

dated 25th March, 2022 passed by learned Additional Sessions

Judge -cum- Authorized Officer, Vigilance, Patna in Special

(Vigilance) Case No. 03 of 2017, whereby and whereunder the

application filed by the State for confiscation of properties

mentioned in its schedule was partly allowed and all the assets

mentioned in para 'f' at serial nos. 1 to 17 and 19 to 23 were

allowed to be confiscated in favour of State of Bihar under

Section 13 of the Act, 2009.

6. As it appears from record, shorn of unnecessary

details, the facts leading to this appeal are as follows:- Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

A Vigilance Case bearing No. 48 of 2008, dated

20.07.2008 was instituted against appellant no. 1 Naresh

Paswan (since deceased) under Sections 7/13(2) read with

13(1)(d) of the Prevention of Corruption Act, 1988 on the

ground that he was apprehended while accepting bribe of

Rs.45,000/-. Subsequently, Vigilance P.S. Case No. 81 of

2010, dated 08.12.2010 was instituted against the appellant

Naresh Paswan (since deceased) under Sections 7/13(2) read

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

wherein it has been alleged that in course of raid total property

worth Rs. 14,42,182/- was assessed and cash of Rs.4,14,300/-

and several policies in the name of deceased Naresh Paswan

and Amresh Kunal were seized.

7. An application under Section 13 of the Act, 2009

was filed before the Authorized Officer in Vigilance P.S. Case

No. 81 of 2010 which was numbered as Special (Vigilance)

Case No. 03 of 2017 in which a request has been made for

confiscation of properties worth Rs. 14,55,128.35/- only under

the provisions of the Act, 2009 as per declaration under

Section 5 of the Act, 2009 read with Rule 7 of the Bihar

Special Courts Rules, 2010. An affidavited list of documents

along with description of the properties were also provided Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

with the application under Section 13 of the Act, 2009. It

further transpires that without serving any notice to the

original appellant, the final order was passed by the learned

Authorized Officer on 29.11.2018 and the said order was

challenged by the appellant before this Court vide Cr. Appeal

(SJ) No. 4706 of 2018. This Court vide its order dated

22.02.2020 set aside the order dated 29.11.2018 and remitted

back the matter to the learned trial court for fresh hearing. The

appellants appeared before the learned Authorized Officer

-cum- Special Court, Vigilance, Patna and filed their

respective show cause on 09.03.2021.

8. Having considered the matter, the learned trial

court came to the conclusion that the deceased Naresh Paswan

acquired and possessed property by means of criminal

misconduct during the check period. The learned trial court

further held that assets mentioned in para 'f' (except serial no.

18) of application filed under Section 13 of the Act, 2009

which have been identified for confiscation have been

acquired and possessed by the delinquent in his name and in

the name of his family members, the properties were

absolutely disproportionate to his known source of income for

which delinquent has failed to give satisfactory account and Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

source of his disproportionate assets by the plausible

explanation. The learned trial court, accordingly, went on to

order that all assets worth Rs.14,48,839.35 mentioned in para

'f' serial no. 1 to 17 and 19 to 23 in the application filed by the

State under Section 13 of the Act, 2009 stood confiscated to

the State of Bihar free from all encumbrances and directed the

appellants to surrender or deliver possession of the aforesaid

assets in favour of the District Magistrate, Patna, who has been

authorized to take possession within 30 days from the date of

service of this order.

9. Aggrieved by the aforesaid order, the appellants

approached this court assailing the said order on a number of

grounds. However, during the pendency of this appeal, the

public servant, who was originally appellant no. 1 namely,

Naresh Paswan died and his name has been expunged and the

appeal is held to have abated against him.

10. Learned counsels for the parties have been heard

on previous dates.

11. It has been submitted by the learned counsel on

behalf of the rest of the appellants that after death of the

person who was the public servant and allegation was against

him for acquiring the assets disproportionate to his known Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

source of income, nothing remains in the matter. Thus, the

argument has been confined on behalf of the appellants only to

the ground that after death of the public servant, against whom

allegation of acquiring disproportionate assets has been made,

the confiscation proceeding against other appellants would not

remain maintainable. Learned counsel, however, submitted

that the appellant Naswan Paswan was convicted by the

learned Special Judge, Vigilance (Trap Cases), Patna in

Special Case No. 36 of 2008 vide judgment dated 27.03.2019.

12. It has been submitted on behalf of the appellants

that the Act, 2009 does not take into consideration the situation

what would be the fate of the proceeding going on either

before the Authorized Officer or in case of appeal before the

High Court if the delinquent public servant dies. However,

Section 19 of the Act, 2009 could be considered to see that

what could be the possible scenario in case of death of the

delinquent public servant. Section 19 provides that 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 the

property or both shall be returned to the person affected and in

case it is not possible for any reason to return the property, Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

such person shall be paid the price thereof including the

money so confiscated with the interest @ 5% per annum

thereof calculated from the date of confiscation. The learned

counsel further submitted that the death of the delinquent

public servant effectively means acquittal since trial would not

proceed further against him. Moreover, as per the provision, if

it is found that it is a case of acquittal, the money or property

or both shall be returned to the person affected. If the

concerned public servant is not alive to continue with the

trial/appeal, it is the basic premise of the criminal law that

proceeding would not move against a dead person. The learned

counsel further submitted that as the concerned public servant

namely, Naresh Paswan is dead, proceeding of confiscation in

this appeal has automatically abated in absence of any other

statutory safeguard or remedy provided under the Act itself.

The learned counsel further submitted that there is no

provision in the Act or even under Cr.P.C. for substitution of

the heirs in the confiscation proceeding. The learned counsel

further submitted that any order of confiscation passed under

Section 15 of the Act, 2009 is subject to the order passed in

appeal and if the concerned public servant has died during

pendency of the appeal, the matter would not proceed against Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

his heirs who are the appellants in the present case.

13. In this regard, learned counsel relied on two

decisions Co-ordinate Benches of this Court, namely

Parmeshwari Sinha, Widow of late Kalika Prasad Sinha Vs.

The State of Bihar through Vigilance, Criminal Appeal (SJ)

No. 225 of 2014, and Criminal Appeal (SJ) No. 405 of 2016,

Parmeshwari Sinha and others Vs. The State of Bihar

through Vigilance, in support of his contention. In the similar

facts and circumstances, different Co-ordinate Benches of this

Court have held in unequivocal terms that after death of a

public servant, confiscation proceeding in respect of the

property said to be acquired by him by unknown source of

income is not maintainable. Moreover, the appellants have not

been arrayed as accused with deceased Naresh Paswan either

as abettor or as conspirator and even then in the aforesaid case,

Criminal Appeal (SJ) No. 405 of 2016, it has been held by the

Co-ordinate Bench that a confiscation proceeding would not

lie against the conspirator if the properties were acquired by

the public servant from unknown source of income who has

since died.

14. However, learned counsel appearing on behalf of

the Department of Vigilance vehemently contended that the Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

confiscation proceeding would be continued even if the public

servant against whom there has been allegation of acquiring

property from unknown source of income has died since the

nature of confiscation proceedings is predominantly civil.

Learned counsel further submitted that confiscation is not a

punishment and hence, it cannot be considered as a proceeding

which is criminal in nature. On this aspect learned counsel

relied on a decision of the Hon'ble Supreme Court in the case

of Yogendra Kumar Jaiswal Vs. State of Bihar and others

reported in (2016) 3 SCC 183. Learned counsel further

submitted that a proceeding under Section 13 of the Act, 2009

is an independent proceeding different from one initiated

under Section 5 of the Act, 2009. This fact is evident from

reading of Sections 14 and 15 of the Act as after giving notice

for confiscation under Section 14(1), what is only necessary

under Section 15(3) that the Authorized Officer records a

finding to the effect that any property has been acquired by

means of offence and the said Officer declares that such

property stands confiscated to the State Government free from

all encumbrances. Learned counsel further relied on a decision

in the case of Shiva Shankar Varma & Ors. Vs. The State of

Bihar through Vigilance reported in 2011(3) PLJR 813, Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

wherein a Co-ordinate Bench of this Court held that a

proceeding of adjudicating petition under Section 13 of the Act

by an order under Section 15 of the Act is not a trial and

analogy has been drawn with Criminal Law Amendment

Ordinance, 1944 especially Section 5 of the Ordinance which

provides for taking of evidence as per mode of receiving

evidence in a suit under the Civil Procedure Code.

15. Learned counsel has placed reliance on a decision

in the case of U. Subhadramma and others Vs. State of

Andhra Pradesh reported in (2016) 7 SCC 797 regarding

analogy of confiscation proceedings under Act, 2009 with the

provisions of Criminal Law Amendment Ordinance, 1944 to

submit that attachment proceedings would be continued even

if the prosecution did not result in conviction.

16. Learned counsel for the State submits that the

nature of confiscation proceeding under the Act of 2009 is

similar to imposition of fine under Section 394 of the Code of

Criminal Procedure and even if the appellant has died, the

appeal would not abate. Learned counsel relied on the decision

of Ramesan (dead) Through L.R. Vs. State Of Kerala,

Criminal Appeal No. 77 Of 2020 Order Dated 21.01.2020,

wherein the Hon'ble Apex Court laid down that when Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

sentence of fine is imposed along with sentence of

imprisonment, the appeal against sentence of fine was required

to be heard. Learned counsel stressed on the observation of the

Hon'ble Apex Court that where accused was sentenced for

imprisonment as well as for fine the appeal in such case has to

be treated as an appeal against fine and would not abate in case

of death of appellant. Thus, contention has been raised by the

learned counsel for the State with analogy of confiscation

proceeding with fine imposed with sentence and appeal

preferred against the confiscation order not getting abated even

after death of the appellant.

17. Learned counsel also harped on the fact that in

every case the intention of the legislature is to be seen and

under what circumstances the present Act has been enacted.

Learned counsel submitted that vires of the Act was examined

and upheld by the Hon'ble Apex Court in the case of

Yogendra Kumar Jaiswal Vs. State of Bihar and others

(supra). Learned counsel submitted that the Act of 2009 was

brought into existence to curb the tendency of public servant in

acquiring wealth by illegal means and if on technicalities such

cases are closed, it would only embolden such unscrupulous

person to indulge into corruption with impunity. Moreover, if Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

the legal heirs succeed in getting the order reversed in the

present appeal, their right to property survive and maxim actio

personalis moritur cum persona, i.e., a personal right of action

that dies with the person will not be applicable. Lastly the

learned counsel relied on the decision of Ravi Sinha and Ors.

Vs. State of Jharkhand, reported in (2018) 11 SCC 242

wherein the Hon'ble Apex Court held that though after death

of a person no prosecution could have been proceeded against

him, when the properties under attachment had come in the

hands of the accused who was one of the legal representatives

and who has been convicted for such a case, making

attachment order absolute cannot be faulted with. The learned

counsel also pointed out that the deceased-appellant was

convicted under the provisions of the Prevention of Corruption

Act, 1988 by the learned Special Judge, Vigilance, Patna.

Thus, on the aforesaid grounds, learned counsel for the

Department of Vigilance submitted that confiscation

proceedings would continue, the appeal would not abate and

the same is required to be decided on merits.

18. The issue raised by the appellants in this appeal

is very simple. Whether the confiscation proceedings could

continue against the present appellants after the death of public Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

servant against whom there has been allegation of acquiring

disproportionate assets since the confiscation proceeding

against public servant could not continue whereas the other

appellants before this Court were not even accused in the case

lodged under the Prevention of Corruption Act and was not

proceeded under the Act of 2009?

19. For consideration of different aspects of the case

on which submission has been advanced by both the sides, it is

relevant to produce the provisions relating to confiscation of

property under Bihar Special Courts Act, 2009. Section 13, 14,

15 and 19 read as under:-

"13. Confiscation of property. - (1) Where the State Government, on the basis of prima-facie evidence, have reasons to believe that any person, who has held or is holding public office and is or has been a public servant. has committed the offence, the State Government may, whether or not the Special Court has taken cognizance of the offence, authorise the Public Prosecutor for making an application to the authorised officer for confiscation under this Act of the money and other property, which the State Government believe the said person to have procured by means of the offence.

(2) An application under sub-section (1)-

(a) shall be accompanied by one or more affidavits, stating the grounds on which the belief, Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

that the said person has committed the offence, is founded and the amount of money and estimated value of other property believed to have been procured by means of the offence; and

(b) shall also contain any information available as to the location for the time being of any such money and other property, and shall, if necessary, give other particulars considered relevant to the context.

14. Notice for Confiscation. - (1) Upon receipt of an application made under section 13 of this Act, the authorised officer shall serve a notice upon the person in respect of whom the application is made (hereafter referred to as the person affected) calling upon him within such time as may be specified in the notice, which shall not be ordinarily less than thirty days, to indicate the source of his income, earnings or assets, out of which or by means of which he has acquired such money or property, the evidence on which he relies and other relevant information and particulars, and to show cause as to why all or any of such money or property or both, should not be declared to have been acquired by means of the offence and be confiscated to the State Government .

(2) Where a notice under sub-section (1) to any person specifies any money or property or both as being held on behalf of such person by any other person, a copy of the notice shall also be served upon such other person.

(3) Notwithstanding anything contained in sub- section (1), the evidence, information and Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

particulars brought on record before the authorised officer, by the person affected or the State Government shall be open to be rebutted in the trial before the special court provided that such rebuttal shall be confined to the trial for determination and adjudication of guilt of the offender by the special court under this Act.

15. Confiscation of property in certain cases. - (1) The authorised officer may, after considering the explanation, if any, to the show cause notice issued under section 14 and the materials available before it, and after giving to the person affected (and in case here the person affected holds any money or property specified in the notice through any other person, to such other person also) a reasonable opportunity of being heard, by order, record a finding whether all or any other money or properties in question have been acquired illegally. (2) Where the authorised officer specifies that some of the money or property or both referred to in the show cause notice are acquired by means of the offence, but is not able to identify specifically such money or property, then it shall be lawful for the authorised officer to specify the money or property or both which, to the best of his judgment, have been acquired by means of the offence and record a finding, accordingly, under sub-section (1).

(3) Where the authorised officer records a finding under this section to the effect that any money or property or both have been acquired by means of the offence, he shall declare that such money or Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

property or both shall, subject to the provisions of this Act, stand confiscated to the State Government free from all encumbrances:

Provided that if the market price of the property confiscated is deposited with the authorised officer, the property shall not be confiscated.

(4) Where any share in a Company stands confiscated to the State Government under this Act, then, the Company shall, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956) or the Articles of Association of the Company, forthwith register the State Government as the transferee of such share.

(5) Every proceeding for confiscation of money or property or both under his Chapter shall be disposed of within a period of six months from the date of service of the notice under sub-section(1) of section-14.

(6) The order of confiscation passed under this section shall, subject to the order passed in appeal, if any, under section 17, be final and shall not be called in question in any Court of law.

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 Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

thereon calculated from the date of confiscation".

20. From plain reading of the provisions of the Act,

the fact is explicit that no provision has been made for

continuation of confiscation proceedings in such eventuality

when the public servant, against whom the allegation for

acquiring wealth by illegal means and from unknown source

of income, has died. Nothing in the aforesaid provision allows

the State to continue with the proceeding even after the death

of the public servant against whom notice has been issued

under Section 14(1) of the Act. There is further no provision

for substitution of heirs of the public servant or even

continuing the proceeding against other appellants.

Continuation of confiscation proceedings against the present

appellants when the allegation of acquisition of illicit wealth is

against the public servant who has since died and in absence of

any allegation that such appellants were public servant or they

acquired properties of their own, would be travesty of justice

in absence of any statutory provisions. There is no provision

akin to levy of fine in Cr.P.C. wherein the appeal does not

abate even on the death of appellant or as under the provisions

of Criminal Law Amendment Ordinance, 1944 which have

been cited by the learned counsel for the Department of Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

Vigilance.

21. At this stage, I would like to distinguish the

facts of the present case and the provisions of law from the

authorities cited by the learned counsel for the Department of

Vigilance. If the statutory provisions do not provide for

continuance of proceeding even after death of public servant

against whom the proceedings for acquisition of

disproportionate assets has been initiated and who has been

facing trial under the provisions of Prevention of Corruption

Act and undergoing trial in the Act of 2009, no reliance of any

of the authorities cited supra would be of help to the State

since the facts and the law are quite different from the decision

cited above. Similarly, the legal heirs of deceased public

servant could not be substituted in his place for the purpose of

continuation of confiscation proceedings. Moreover, the

contention that the proceedings under Act, 2009 are civil in

nature would not cut much ice since the Act of 2009 is a

complete code and when it does not provide for such situation,

this Court cannot read something which is not there and

prescribe a procedure which has not been provided by the

legislature in its wisdom. So reliance placed on Shiv Shankar

Varma & Ors. Vs. The State of Bihar trhough Vigilance Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

(supra) is misconceived and not applicable to the facts of this

case. Similarly, the reliance placed by the learned counsel for

the State on U.Subhadramma and Ors. (supra) and Ravi

Sinha and Ors. (supra) is of no help to the State since in both

the cases the Hon'ble Apex Court held that attachment of

property against a deceased would not proceed. At this same

time in Ravi Sinha's case (supra), though he was legal heir

yet he was himself accused in the case. Moreover, when

Section 19 of the Act, 2009 itself provides that upon acquittal

by the Special Court or in case of modification or annulment

or the order of confiscation under Section 15 of the Act, the

money or the property is liable to be returned to the person

affected, such order needs to be withdrawn when the

proceedings are dropped or cannot result in conviction due to

death of the accused whose property is attached. Since the

appeal is deemed to be continuance of trial and presumption of

innocence of the accused would continue and could not vanish

upon the death of the accused, so I hardly find any merit in the

submission made on behalf of the learned counsel for the

State. Reliance placed by learned counsel for the State on the

case of Ramesan (supra) is simply not applicable in the facts,

circumstances and the express provisions of law. There is no Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

provision under Act, 2009 to treat the confiscation order as

fine and to continue the same against the legal heirs of the

deceased-appellant. Hence, this contention is misconceived

and therefore, rejected.

22. Coming back to the facts of the present case,

the confiscation proceedings were initiated against the

appellants after issuance of notice under Section 14(1) and (2)

of Bihar Special Courts Act, 2009. After proceedings, the

learned Authorized Officer partially allowed the application

filed by the State through Public Prosecutor for confiscation of

property. Since the appellants were never accused in the case

lodged under the Prevention of Corruption Act and the

deceased-appellant was the sole accused in the case, in

absence of any provision to sustain the proceeding in case of

death of public servant who illegally acquired the wealth

disproportionate to his known source of income, confiscation

proceeding could not be continued. Moreover, there is no

provision under the law for substitution of legal heirs or

continuance of trial against opposite parties when the public

servant has died, such proceeding could not continue against

the present appellants. Therefore, notwithstanding the

conviction of deceased-appellant, the order of learned Patna High Court CR. APP (SJ) No.1371 of 2022 dt.27-09-2023

Authorized Officer against the present appellants for

confiscation of properties could not be upheld since it has not

remain maintainable.

23. In the result, the impugned judgment and order

dated 25th March, 2022 passed by learned Additional Sessions

Judge -cum- Authorized Officer, Vigilance, Patna in Special

(Vigilance) Case No. 03 of 2017 become unsustainable against

the appellants, Uma Devi and Amresh Kunal, and is liable to

be set aside and, hence, the same is set aside.

24. Accordingly, the appeal stands allowed.

25. Let the lower court records be returned to the

learned court below forthwith.

(Arun Kumar Jha, J)

DKS/-

AFR/NAFR                AFR
CAV DATE                01.09.2023
Uploading Date          27.09.2023
Transmission Date       27.09.2023