Sarbeswar Jena Vs State of Odisha

Mr. Das, learned Senior Standing Counsel for the Vigilance Department submits that this case is covered by the order of this Court passed in CRLA No.48 of 2020 on 29.04.2024.

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F.I.R. was registered against the present appellants alleging commission of offences under Sections 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988.

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Under the provisions of Section 13(1) of Orissa Special Courts Act, 2006, confiscation proceeding was initiated against the appellants before the learned Authorised Officer so as to confiscate the assets/properties alleged to have been acquired by the proceeds of the crime allegedly committed by the accused.

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The appellants moved an application inter alia seeking dropping of the said confiscation proceeding questioning the maintainability in view of the amended provision of Prevention of Corruption Act (as amended in the year 2018).

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The said application was turned down by the Authorised Officer, Special Court, Bhubaneswar by order dated 13.02.2020 in the Confiscation Case No.02 of 2019.

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The appellants in the present appeal have assailed the aforementioned order attacking the very maintainability of the confiscation proceeding before the Authorised Officer under the provisions of the Special Courts Act, 2006 on the teeth of the amended provisions of Prevention of Corruption Act.

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The same issue falls for consideration before this Court in a batch of appeals. This Court vide judgment dated 23.09.2022 passed in CRLA No.748 of 2018 (Sadananda Mishra v. State of

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Odisha (Vigilance Department) and batch have inter alia held as

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under:

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<19. Reverting to the contentions with regard to repugnancy and validity of the provision of confiscation under the Special Courts Act, it would be apposite to mention here that the question of confiscation in the Special Courts Act at-interim measure which is dependent on the ultimate result that is passed in the trial against the accused facing the trial for commission of offence under Section 13(1)(e) of the P.C. Act. But, the question of forfeiture under the 1944 Ordinance is a post-trial measure depending on the factum of penalty of the conviction, if any recorded and also finding with regard to the ill-gotten money acquired under the P.C. Act, a scheduled offence. The validity of the confiscation proceeding of the Odisha Special Courts Act has already been upheld by the Apex Court in the case of Jogendra Kumar Jaiswal (supra) notwithstanding the existence of the 1944 Ordinance. The amendment brought as aforesaid does not provide the detailed procedure with regard to confiscation and when such a confiscation to be exercised by the Special Judge which only says that so far offence under the P.C. Act is concerned, a scheduled offence under the 1944 Ordinance, in respect of the property with regard to attachment, administration and confiscation has to be exercised by the Special Judge under the P.C. Act in place of District Judge. No detailed procedure for such confiscation has also been provided. So, notwithstanding the fact that the word 8confiscation9 was missing under the 1944 Ordinance, it is fallacious to say that the power of confiscation which has given in the Odisha Special Courts Act to the Authorized

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Officer, has now to be exercised by the Special Court after such amendment in view of proviso to Article 254(2) of the Constitution of India, more so when the aforesaid confiscation in the Special Court Act is an ad-interim measure which is dependent on the final outcome of the case of accused there before the Special Judge, under the said Act. The said amendment does not touch any provisions of the Odisha Special Courts Act. Hence, the proviso to Article 254(2) of the Constitution of India does not make the provisions of confiscation under the Special Courts Act inoperative after such amendment in the P.C. Act. So, in the considered opinion of this Court, notwithstanding mentioning of the word 8confiscation9 which appears to have been used as against the word 8forfeiture9 mentioned in 1944 Ordinance, the same is not occupying the field with regard to adinterim confiscation of the ill-gotten money allegedly acquired by means of the offence committed under Section 13(1)(e) of the P.C. Act by the persons, who held high public or political office and triable by the Special Court under the Odisha Special Courts Act. Therefore, the contention that is advanced that the Authorized Officer in the Special Court, after the aforesaid amendment is denuded of the power of confiscation and, as such, a confiscation proceeding therein is not maintainable, is devoid of merit, even though this Court do not agree with the rejection of the prayer made by the Authorized Officer in some cases with regard to the fact that prospective application of the amendment being a ground for rejection of such prayer. Approving such reasoning of Authorized Officer would amount to giving a seal of approval to the contention made that proviso to Article 254(2) has application to such

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amendment, to which this Court do not agree, as according to my humble opinion, the aforesaid is not an enactment which affects the provisions of ad-interim confiscation, exercised under the Odisha Special Courts Act.

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In view of the same, I am unable to agree with the submission that in such amendment the Special Judge under the P.C Act has been vested with the power of confiscation and the Authorized Officer thereafter is divested of the jurisdiction to deal with confiscation proceeding initiated under the provision of the Special Courts Act. Hence, refusal of the Authorized Officer by the impugned order to drop the proceeding cannot be found fault with on the said ground, though this Court is not in agreement with the ground assigned by the Authorized Officer that the aforesaid enactment having come into force after initiation of the confiscation proceeding, has no application to the proceeding initiated prior to the said amendment, which is retrospective in nature.=

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The issue involved in the present lis is directly covered by the aforementioned judgment of the coordinate Bench.

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In view of the judgment in the case of Sadananda Mishra (supra), the present appeal fails and accordingly the same is dismissed being devoid of merit.

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Signature Not Verified (S.S. Mishra) Digitally Signed Judge Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Swarna Date: 18-Jul-2024 19:07:28

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Sarbeswar Jena v. State of Odisha

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Sarbeswar Jena v. State of Odisha

Case brief

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