Sudha Singh And Anr vs The State Of Bihar Through ...
2023 Latest Caselaw 4960 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (SJ) No.662 of 2013
        Arising Out of PS. Case No.-84 Year-2009 Thana- C.B.I CASE District- Muzaffarpur
     ======================================================

1. Sudha Singh Wife of Shri Ravindra Singh At Present Resident Of Mahakali Tower C-Block Flat No. 208 Ranjan Path Abhiyanta Nagar, Baily Road, P.S.

- Danapur, District - Patna.

2. Ravindra Prasad Singh Son of Late Tulsi Singh Resident Of Village -

Jaitipur, P.S. - Bihta, District - Patna At Present Resident Of Mahakali Tower C-Block Flat No. 208 Ranjan Path Abhiyanta Nagar, Baily Road, P.S. - Danapur, District - Patna. (Expunged)

... ... Appellant/s

Versus

The State Of Bihar Through Vigilance

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

For the Appellant/s : Mr.Ranjan Kumar Sinha, Advocate For the Respondent/s : Mrs. Archana Palkar Khopde, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA CAV JUDGMENT

Date : 27-09-2023

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, Sudha Singh,

appellant no. 1/opposite party no. 2 (wife of late Rabindra

Prasad Singh) and Ravindra Prasad Singh, appellant no.

2/opposite party no. 1 (since deceased) against the judgment

and order dated 5th August, 2013 passed by learned Additional Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

District & Sessions Judge -cum- Authorized Officer, Special

Court No. 1, Muzaffarpur in Confiscation Case No. 06 of 2012,

whereby and where under the learned court passed order for

confiscation of the property of the appellants as per description

in Schedule A and B of the petition under Section 13 of the Act.

2. Brief facts of the case are as follows:-

A Vigilance P.S. Case No. 52 of 2009, dated

12.05.2009 was instituted under Sections 7/13(2) read with

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

under Sections 409, 201, 120B of the Indian Penal Code against

appellant no. 2/opposite party no. 1 and another on the basis of

complaint received from one Sri Rajeev Ranjan. The allegation

against opposite party no. 1, the Inspector, Weights and

Measurement, Muzaffarpur was for demanding bribe. A raid

was conducted and opposite party no. 1 and another person

were caught red handed while accepting bribe of Rs.1,700/-

from the complainant. After conducting enquiry, the authorities

came to know that opposite party no. 1 has amassed property

worth Rs.10,50,501/- which was disproportionate to his known

source of income. After submission of charge sheet in Vigilance

P.S. Case No. 52 of 2009, a regular FIR bearing Vigilance P.S.

Case No. 84 of 2009, dated 10.08.2009 under Sections 7/13(2) Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

read with section 13(1)(E) of the Prevention of Corruption Act,

1988 was instituted against opposite party no. 1. During

investigation it was found that opposite party no. 1 has amassed

movable and immovable property in his own name as well as in

the names of his wife (appellant no. 1 herein), sons and other

family members. After further investigation the

disproportionate assets have been found to be worth

Rs.12,96,516/-. Accordingly, charge sheet has been submitted

in Vigilance P.S. Case No. 84 of 2009 before the court of

learned Special Judge, Vigilance-I, Patna. Thereafter,

application has been moved before the learned Authorized

Officer under Section 13 of the Bihar Special Courts Act, 2009

and prayer has been made for confiscation of property as shown

in Schedule A and B of the petition.

3. Notices were issued and served upon three

opposite parties and O.P. Nos. 1 and 2 are the appellants in the

instant appeal. Opposite Party No. 3 died before investigation

of the case and her death certificate was brought on record.

Both the appellants/opposite parties filed rejoinder making

prayer to reject the petition of State for confiscation of

Schedule A and B of the properties of the notice issued. The

learned Authorized Officer having considered the material Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

before him partially allowed the confiscation in favour of the

State holding that except for certain items in Schedule A and B,

rest of the items were acquired by illegal means by O.P.

No.1/Appellant No. 2.

4. Being aggrieved by the order dated 5th August,

2013 of the learned Authorized Officer, the appellants filed the

instant appeal.

5. However, during pendency of the appeal,

appellant no. 2 died on 18th January, 2018 and the fact has been

brought to notice of this Court by the son of the deceased by

filing supplementary affidavit. It has been submitted on behalf

of the appellants that further proceeding against appellant no. 2,

Ravindra Prasad Singh before the court of learned Special

Judge, Vigilance-I, Patna in connection with Special Case No.

60 of 2009, arising out of Vigilance P.S. Case No. 84 of 2009

has been dropped vide order dated 16th March, 2021. Hence, the

name of appellant no. 2, Ravindra Prasad Singh is ordered to be

expugned from the array of parties and appeal stands abated

against him.

6. Learned counsel for the parties have been heard

on previous dates.

7. It has been submitted on behalf of the appellants Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

that after death of the public servant confiscation proceeding

does not remain maintainable since the case of the prosecution

would not fall under Section 13 of the Act, 2009 and the

properties of appellant no. 1 cannot be confiscated by the State

Government as the appellant no. 1 is not a government servant

and she is not accused in aforesaid vigilance case. Learned

counsel further submitted that after death of concerned public

servant, the confiscation proceeding cannot proceed in respect

of alleged disproportionate assets acquired by him in absence of

statutory provisions and on this aspect learned counsel for the

appellants relied on a decision of a Co-ordinate Bench of this

Court dated 4th February, 2015 passed in Criminal Appeal (SJ)

No. 225 of 2014, Parmeshwari Sinha, Widow of late Kalika

Prasad Sinha Vs. The State of Bihar through Vigilance. It has

been further submitted on behalf of the appellants that

procedure and findings under the Bihar Special Courts Act,

2009 is not an independent procedure and as per Section 19 of

the Act, the execution of order of confiscation proceeding is

subject to result of main case under the Prevention of

Corruption Act. In the instant case the proceeding under the

Prevention of Corruption Act has already been dropped and the

presumption of innocence will always be available to the Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

deceased public servant. Learned counsel further submitted that

another Co-ordinate Bench in Criminal Appeal (SJ) No. 405 of

2016, Parmeshwari Sinha and others Vs. The State of Bihar

through Vigilance has also held that after death of public

servant confiscation proceedings in respect of property said to

be acquired by him by unknown source of income is not

maintainable. It is not the case of the respondent that the

present appellant namely, Sudha Singh, is a public servant and

it is not the case of the respondent that said properties were

acquired by the present appellant. Moreover, the present

appellant is also an income tax payee. Since there is provision

for return of the confiscated property after acquittal under

Section 19 of the Act, no useful purpose would be served even

if the order of the learned Authorized Officer is upheld without

final decision of the learned trial court in the vigilance case.

The State is only the custodian of the property and the

confiscation is dependent upon the outcome of the trial before

the Special Court of Vigilance and since the trial has been

dropped, the confiscation proceedings against the present

appellant is not maintainable.

8. However, learned counsel appearing on behalf

of the Department of Vigilance vehemently contended that the Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

confiscation proceeding could 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

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

State of Bihar through Vigilance reported in 2011(3) PLJR Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

813, 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.

9. 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 could be continued even

if the prosecution did not result in conviction.

10. 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 Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

when 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. Then,

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.

11. 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. Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

Moreover, if 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. 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.

12. The issue raised by the appellant in this appeal

is very simple. Whether the confiscation proceedings could

continue against the present appellant after the death of public

servant against whom there has been allegation of acquiring

disproportionate assets since the vigilance case against public

servant was dropped whereas the other appellant before this Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

Court was not even accused in the case lodged under the

Prevention of Corruption Act and was not proceeded under

the Act of 2009?

13. 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, 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 Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

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 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 Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

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

Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

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 thereon calculated from the date of confiscation".

Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

14. 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 appellant/opposite

part. Continuation of confiscation proceedings against the

present appellant 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 appellant/opposite party

was public servant or she acquired properties of her 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 Vigilance. Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

15. 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 (supra) is misconceived and not applicable to the Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

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 provision under Act, Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

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.

16. 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 appellant was 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 party when the public

servant has died, such proceeding could not continue against

the present appellant. Therefore, the order of learned

Authorized Officer against the present appellant for

confiscation of properties could not be upheld since it has not Patna High Court CR. APP (SJ) No.662 of 2013 dt.27-09-2023

remain maintainable.

17. In the result, the impugned judgment and

order dated 5th August, 2013 passed by learned Additional

District & Sessions Judge -cum- Authorized Officer, Special

Court No. 1, Muzaffarpur in Confiscation Case No. 06 of

2012 become unsustainable against the appellant, Sudha

Singh, and is liable to be set aside and, hence, the same is set

aside.

18. Accordingly, the appeal stands allowed.

19. 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