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inspector General of Police, Cabinet (Vigilance) Dept. Govt. of Bihar Vs. Central Manbhum Coal Co. (P) Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1984CriLJ1703
Appellantinspector General of Police, Cabinet (Vigilance) Dept. Govt. of Bihar
RespondentCentral Manbhum Coal Co. (P) Ltd. and ors.
Cases ReferredN.S. Thread & Co. v. James Chadwick
Excerpt:
- .....cabinet (vigilance) department. the order impugned is the one dt. aug. 5, 1982, passed by the learned district judge, alipore, dismissing an application for attachment made by the appellant under section 3 of the said ordinance. it was so dismissed not on merits but on the point of maintainability. that application for attachment was undisputedly a second such application, earlier application having lapsed, and the only point which arises for our consideration in this appeal is as to whether a second such application could be entertained in law when the earlier one was rendered frustrated before it could be brought to its legitimate end it would be necessary to refer to the facts in the background which may be set out briefly as follows.2. on july 6, 1979, a first information report.....
Judgment:

Anil K. Sen, J.

1. This is an appeal under Section 11 of the Criminal Law Amendment Ordinance 1944 hereinafter referred to as the said Ordinance) preferred by the State of Bihar through its authorised authority, namely, the Inspector General of Police, Cabinet (Vigilance) Department. The order impugned is the one dt. Aug. 5, 1982, passed by the learned District Judge, Alipore, dismissing an application for attachment made by the appellant under Section 3 of the said Ordinance. It was so dismissed not on merits but on the point of maintainability. That application for attachment was undisputedly a second such application, earlier application having lapsed, and the only point which arises for our consideration in this appeal is as to whether a second such application could be entertained in law when the earlier one was rendered frustrated before it could be brought to its legitimate end It would be necessary to refer to the facts in the background which may be set out briefly as follows.

2. On July 6, 1979, a first information report was lodged with a police station against the respondent No. 2 Kashab Narayan Banerji and others including some officials of the State of Bihar alleging commission of certain offences including some specified in the schedule to the said Ordinance in the matter of obtaining compensation money from the State of Bihar amounting to Rs. 1,48,60,950.00 in bonds and Rs. 65,11,250.14 in cash. An investigation was. initiated over the said first information and the respondent 2 was arrested on April 2, 1980. The said respondent 2 filed a writ petition in this Court and obtained a Rule, being C.R. 2731 (W) of 1980. By an interim order obtained in the said Rule, further investigation was stayed. That petition, however, was dismissed by a learned single Judge of this Court whereupon the respondent 2 preferred an appeal wherein the appeal court on Nov, 10, 1981. passed an ad interim order allowing investigation to proceed but the appellant was restrained from taking any action on the result of that investigation except on further leave from the Court.

3. On a communication received from the income-tax authorities the appellant came to know that the money received by the respondent 2 by way of compensation was lying in different fixed deposits in different names including certain fictitious names. The appellant having reasonably believed that those fixed deposits as also a Calcutta property acquired by the respondent 2 were all acquired with the money obtained by commission of a scheduled offence, wanted to obtain an order of attachment under the provisions of the said Ordinance. Accordingly, the appellant obtained leave from the appeal Court to take out such an attachment. Such leave was obtained on Jan 21, 1982, and on Jan, 22, 1982, an application under Section 3 of the said Ordinance read with Section 4 thereof was filed before the learned District Judge, 24 Paragons. The appellant prayed for attachment of the properties specified in the application belonging to the respondent No. 2. The learned District Judge directed issue of a notice and made an order for ad interim attachment but as the respondent 2 had already lodged a caveat through Mr. Bagchi, a lawyer, the learned District Judge made the following direction substantially on the prayer of the respondent 2:

Mr. Bagchi at this stage submitted that in order to ensure that the matter be speedily disposed of so that the respondents were not affected in the least and that they were prepared to file objection within a fortnight and they may be permitted to take copies of the proceedings with annexures from the Court and the matter may be finally fixed for hearing a month hence. It is accordingly further ordered that the petitioner shall supply copies of the application and the annexures thereto within 3 days to the respondents to be received by Mr. Bagchi on their behalf and the respondents if they accept such copies and enter appearance may file written objection by 13th Feb. 1982 and the matter shall finally come up for hearing on 24th Feb, 1982.

4. What, however, was represented before the learned District Judge on behalf of the respondent 2 was not his real intention. Instead of filing an objection to the application for attachment before the learned District Judge, the respondent 2 on Feb, 12, 1982, filed a writ petition in this Court which was registered as C.R. 1781(W) of 1982. In this writ petition the respondent 2 obtained an interim order staying all furl her proceedings arising out of the application by the appellant under Section 3 read with Section 4 of the said Ordinance, being Order Section 14 of 1982 in the Court of the learned District Judge. 24 Parganas. In passing such an interim order, the learned single Judge was careful enough to direct that notwithstanding such an interim order, the attachment already made would continue. But unfortunately the order that was communicated did not incorporate the said direction that the attachment would continue. The appellant had to make a lot of endeavor to bring it to the notice of the learned District Judge at long last that the interim order did not bar the levy of attachment already made. The order sheet of Order Section 14 of 1982 of the Court of the learned District Judge, 24 Parganas, however, clearly reflects a great struggle on the part of the respondent 2 to prevent levy of the attachment and in terms of the ad interim order passed by the learned District Judge though it must be said that the appellant acting on the representation of the respondent 2 made on Jan. 22, 1982, failed and neglected to take out the writ of attachment between the period Jan. 22, 1982 and Feb. 12, 1982. The fact remains that until the last the respondent 2 successfully fought against issue of the writ of attachment.

5. On April 2, 1982, the respondent 2 on an oral prayer obtained an ex parte leave from the Court to withdraw the writ petition which was registered as C.R. 1781(W) of 1982 which order, however, was recalled by the learned Judge on the intervention of the present appellant on April 7, 1982. But in the meantime on April 5, 1982. another writ petition was moved in this Court challenging the very same attachment proceeding under the said Ordinance on behalf of a Trust known as Debi Kamal Trust. On that application an ad interim order was obtained ex parte permitting disbursement of interest on the fixed deposit accounts under attachment. The present appellant forthwith preferred an appeal, being F.M.A.T. 906 of 1982. The appeal Court in staying the operation of the order of the learned single Judge granted stay of further proceedings before the learned District Judge in making the following direction:

Except service of the writs of attachment all other proceedings on O. Section Case No. 14 of 1982 pending before the learned District Judge, Alipore, 24 Parganas will remain stayed until further orders.

6. The appeal Court fixed the matter for hearing on April 26, 1982, but the period of 3 months, however, expired in the meantime on April 22, 1982. On July 19, 1982. the appeal Court vacated all interim orders by holding that the original order of attachment ceased to be in existence with effect from April 22, 1982, in view of the expiry of 3 months from the date of its issue.

7. Obviously that order, was based on Section 10 which provides as follows:

10. Duration of attachment - An order of attachment of property under this Ordinance shall, unless it is withdrawn earlier in accordance with the provisions of to the Ordinance, continue in force-

(a) where no Court has taken cognizance of the alleged scheduled offence at the time when the order is applied for, for 3 months from the date of the order under Sub-section (1) of Section 4 or Sub-section (2) of Section 6, as the case may be, unless cognizance of such offence is in the meantime so taken or unless the District Judge on application by the agent of the provincial Government thinks it proper and just that the period should be extended and passes an order accordingly, or

(b) where a Court has taken cognizance of (he alleged scheduled offence whether before or after the time when the order was applied for until orders are passed by the District Judge in accordance with the provisions of this Ordinance after the termination of the criminal proceedings.

8. Clause (a) of Section 10 as aforesaid, being applicable to the present case, the order could subsist for 3 months subject, however, to its extension by the learned District Judge on an application by the State Government if the learned District Judge on just grounds had been satisfied that it would be proper and just to extend the order. On the facts set out hereinbefore, all further proceedings before the learned District Judge having been continuously stayed by this Court by one order or the other from Feb. 12, 1982 till July 19, 1982, the present appellant had no opportunity to obtain an extension from the learned District Judge. It is true that in the course for 3 months the appellant could not cause cognizance to be taken by an appropriate Court but there may be justifiable reasons which they could have made out in an application for extension for the purpose of satisfying the learned District Judge that there exist proper and just grounds for extension netwithstanding their failure to cause cognizance to be taken. The appellant, however, was deprived positively of an opportunity to do so by the continuous order of stay of further proceedings obtained by the respondent 2 from this court. In that view, I have no manner of doubt in my mind that the first proceeding which was initiated on an application under Section 3 read with Section 4 of the said Ordinance was rendered frustrated by the respondent 2 and or by others on his behalf and the said proceedings were not allowed to come to their legitimate end. The said respondent who made a representation before the learned District Judge on Jan. 22, 1982, that he would file an objection to the application for attachment and face an adjudication of the claim obviously fought shy to do so and adopted other means to frustrate the said proceedings in the manner indicated hereinbefore which does not appear to me to be wholly bona fide.

9. It is only in this background that the State of Bihar filed a fresh application under Section 3 read with Section 4 of the said Ordinance. The respondent 2 appeared to resist this application at its inception and raised an objection that the earlier order of attachment having lapsed on the expiry of the period prescribed by Section 10, an application for second attachment was not maintainable. This application has been dismissed by the learned District Judge in limine. The learned judge has assigned two reasons for holding that such an application was not maintainable. In the first place it was held by him that successive applications under Section 3 read with Section 4 of the Ordinance were not maintainable because that would render the provision of Section 10 nugatory. Where, according to the Judge the statute prescribes a limit for the duration of an attachment, issuing successive attachments on the expiry of earlier ones would defeat the very object of such a prescription of time limit The second reason assigned by the learned Judge is that although the order of attachment had lapsed the earlier proceeding was still pending and when the law authorises an extension of the attachment only by making an application in accordance with Section 10, not having such an extension but initiating a fresh proceeding for a fresh attachment was not contemplated by law. In dismissing the application, the learned District Judge, however, fairly observed that he was dismissing the application only on the ground of maintainability though upon his finding a 'prima facie case is otherwise made out'. Feeling, aggrieved, the State of Bihar has preferred the present appeal.

10. Mr. Prasad appearing in support of this appeal has assailed both the reasons assigned by the learned District Judge in support of his conclusion that the application as made was not maintainable in law. According to Mr. Prasad when the Ordinance invests the learned District Judge with power to make an order of attachment that power can be exercised on more occasions than one if the circumstances justify. That is not only inherent in every authority exercising powers invested in it but that is also the provision of Section 14 of the General Clauses Act Mr. Prasad has relied on a decision of the Supreme Court in the case of Vasanlal Maganbhai v. State of Bombay : 1978CriLJ1281 . According to Mr. Prasad, entertainment of successive applications under Section 3 read with Section 4 when made in a bona fide manner based on grounds reasonably justifying such successive applications, would not render Section 10 nugatory and the learned District Judge had expressed himself too widely in stating that the very fact of entertainment of successive applications would render Section 10 nugatory. So far as second reason assigned by the learned District Judge is concerned, it has been contended by Mr. Prasad that the proceeding under Section 3 is a proceeding for an interim attachment so that where such an order lapses beyond any scope for its revival nothing remains of the proceeding and the learned District Judge was not right in thinking that though the order lapsed the proceeding still survived.

11. Both the points thus raised by Mr. Prasad have been strongly contested by Dr. Pal appearing on behalf of the respondents 1 to 9 and 21. According to Dr. Pal, Section 10 prescribes a statutory limitation which is unconditional in its nature. According to Dr. Pal, unlike similar provisions in other statutes which prescribe an exception to such a limitation in case of stay obtained from court here in the present case the Ordinance not having prescribed any exception the limitation would take its effect irrespective of the consideration as to how the time lapsed Once it so lapsed, according to Dr. Pal, to allow entertainment of a fresh application for attachment on the same facts, would certainly frustrate the statutory limitation as rightly held by the learned District Judge. Secondly it has been contended by Dr. Pal that in the present case the State of Bihar had not been proceeding with the investigation in a bona fide manner, in as much as, an investigation initiated in the year 1979, on a first information report could not be completed and no charge sheet could be submitted even after the lapse of 3 years. It has been further contended by Dr. Pal that the appellant could have filed an application under Section 10 of the Ordinance for extension of the interim order of attachment since there was no injunction against it for making such an application and if the appellant had not done so, the appellant cannot avoid the consequence which would follow in law on the expiry of the period of limitation prescribed by the Ordinance.

12. I have carefully considered the rival contentions put forward before me. I should dispose of the second reason assigned by the learned District Judge shortly before I proceed to consider the first reason which raised a point of some importance. On the scheme of the Ordinance, the proceeding starts on an application for attachment made under Section 3. Under Section 4, unless the District Judge rejects the application forthwith he grants an ad interim attachment and issues show cause notice why the order of attachment should not be made absolute and forward therewith a copy of order of ad interim order as also a copy of the application, affidavit or any evidence recorded at that stage. Once objections are preferred they are investigated under Section 5 and the consequential order is passed either by making the ad interim order absolute or varying it by releasing a portion of the property from attachment or withdrawing the same. Section 10 which has been set out hereinbefore prescribes the duration of an attachment under the Ordinance. The term 'attachment' in Section 10 does not mean and include only the ad interim attachment but the attachment which is the only relief claimed in the proceedings. Unless extended by the learned District Judge and unless the Court has taken cognizance of a scheduled offence in the meantime, the attachment can subsist only for 3 months calculated from the date when the ad interim attachment is made. The learned Judge failed to appreciate the difference between the scheme of attachment proceeding under the Ordinance and one under Order 38 Rule 5 of the Civil P.C. Here the Ordinance contemplates making of an ad interim attachment and then a notice to show cause why it should not be made absolute while under the Code the notice is issued to show cause why an attachment should not be made and in issuing such a notice the Court may or may not grant an ad interim attachment. Therefore, if an ad interim attachment is refused or if it lapses, the proceeding no longer survives under the Ordinance because there remains no ad interim order which can be made absolute. That being the position in law, if the attachment itself has lapsed it is difficult to contemplate that the proceeding therefor still survives. The teamed District Judge would have been right in his view if under Section 10 what had lapsed was merely the ad interim order still keeping the proceedings alive for making an interim order of attachment as claimed under Section 3. This was the position which was obviously accepted by the appeal Court when it refused to interfere with the order of T.K. Basu, J, on the view that the attachment had come to an end on the expiry of 3 months from Jan, 22, 1982. How far Section 10 of the Ordinance would constitute a bar would be considered in considering the first reason. The second reason assigned by the learned District Judge is, therefore, clearly unsustainable.

13. I will now proceed to consider the first reason assigned by the learned District Judge in the light of the rival contentions put forward before me. Before I proceed to consider the effect of Section 10, I think it would be necessary to consider what is the nature of the power and how it is to be exercised as otherwise envisaged by the Ordinance. Section 3 authorizes the State Government to apply for attachment of any property or money which it reasonably believes to have been produced by a person by commission of any scheduled offence. Such an application can be made whether or not any Court has taken cognizance of such offence. Section 4 provides that when such application is made the District Judge shall unless for reason to be recorded in writing he is of the opinion that there exist no prima facie grounds for believing that the person in respect of whom such an application is made has committed any scheduled offence or that he had procured thereby any money or other property, pass without delay an ad interim order attaching the money or the property and then shall issue a show cause notice why the order of attachment shall not be made absolute. There is nothing in these two sections or in any other provision of the Ordinance barring Section 10 which I shall consider later which limits the occasion when such an application for attachment can be made or the power of attachment is to be exercised. I feel inclined to accept the contention of Mr. Prasad that such an application can be made and such a power can be exercised on any occasion which justifies making of such an application or exercising the power in that regard. I may only refer to the observations of Mahajan, J. in the case of N.S. Thread & Co. v. James Chadwick : [1953]4SCR1028 when he observed it is a well-known rule of construction that when a power is conferred by a statute that power may be exercised from time to time when occasion arises unless a contrary intention appears Section 14 of the General Clauses Act relied on by Mr. Prasad merely grants statutory recognition to the above rule. Same principle was reaffirmed by the Supreme Court in the case of Vasanlal Maganbhai : 1978CriLJ1281 (supra). Looking at the scheme of the Ordinance now under consideration, instead of finding any contrary intention, it appears to me that it contemplates that there may be more occasions than one when such an attachment may be taken out As indicated hereinbefore it authorises obtaining an attachment either before cognizance is taken or after it When attachment is obtained after cognizance, once it is made absolute it continues until the end of the trial. The period of limit prescribed is only in a case where the attachment is obtained prior to cognizance. In my view, it may so happen that in a particular case the State Government which had obtained an ad interim order of attachment before cognizance may not seek its extension if there arises some uncertainty about the involvement of the accused or the, property appearing on the investigation at that particular stage and allow it to lapse. But it may ultimately so happen that on further investigation after several months the State Government may find out and be satisfied one* more about the involvement of the accused and the property. Similarly the attachment may be allowed to lapse due to delay in investigation but once investigation being completed, cognizance is taken, there may arise an occasion for taking out an attachment once more. In such a situation I find no reason why the State Government cannot come with a fresh application for attachment when such a fresh occasion arises only because at an earlier stage such an attachment had lapsed.

14. Let me now consider the effect of Section 10 and whether that provision either expressly or by necessary implication limits the exercise of power of attachment under Section 4. On the terms of Section 10, it appears that it prescribes no limitation either for making an application for attachment or exercising the power in that regard by the learned District Judge. It merely prescribes a time limit during which an order of attachment once made would subsist. As rightly pointed out by the learned District Judge it merely limits the duration of an order once made. Though I feel no hesitation in holding, as I have expressed myself earlier, that successive applications for attachment under Section 3 read with Section 4 should mot be entertained where the object of such an application and the result of allowing the same would be otherwise frustrating the statutory limit of duration of an attachment yet that does not mean that the District Judge cannot entertain such an application as a court cannot entertain a particular appeal or application which is barred by limitation. While the former is an inherent prohibition which the learned District Judge would always take into consideration exercising his powers and making an order, the latter would constitute a bar to his entertaining the application. On the provisions of the Ordinance, there is no bar or limitation to the exercise of powers under Section 4 by the learned District Judge. In this case, the learned District Judge failed to take note of the distinction between these two aspects when he thought that Section 10 constitutes a bar to the entertainment of a second such application. Dr. Pal may be right in drawing our attention to some other statutory provisions prescribing limitation for acts contemplated therein and further prescribing exception in the event the authority is rendered incapable of doing that act under orders of the court. He has referred to Sections 468 read with 470(2) of the Cri.P.C. Section 11 Central Excises and Salt Act Sections 153, 231, 263, 276 and 132 Income-tax Act and Sections 17A and 25 Wealth-tax Act and others. But in my view, such a provision prescribing an exception was not necessary in the present case because Section 10 does not prescribe any limitation for the exercise of the power of attachment or making an application therefor. There being no bar to making of such application on more occasions than one nor any bar to the exercise of such powers in a similar manner, a specific exception need not have been incorportated by the Ordinance.

15. It is true that the law does not prescribe any bar on the District Judge's power to entertain successive applications for attachment but that does not mean that he would be exercising that power in such a manner as to frustrate the prescription of Section 10 or circumvent the effect thereof. The learned District Judge is expected to use his judicial discretion and reject an application whose object is such. In a sense an application for attachment, the object whereof is merely to circumvent the statutory effect of lapse of an earlier order of attachment, cannot be said to be a bona fide one. Such an application has to be rejected not because the Court has no power to entertain it but because it would not be just and proper exercise of such a power. But in my view there may be more reasons than one which may necessitate making of a successive application for attachment Subsequent events may generate good grounds for obtaining such an order of attachment though an earlier one might have lapsed. Similarly, if an earlier order has lapsed for no fault of the State Government even before the proceeding could be finalised, making of a second application for attachment can hardly be said to be one with the object of frustrating the statutory effect of limit of duration of an order of attachment because the order was not allowed to reach its finality. Let me take the case of a proceeding where after an ad interim order of attachment has been made and where an application for its extension is pending, the learned District Judge due to some unavoidable reason is unable to dispose of the application for extension within three months and the ad interim order lapses, is it really intended by the Ordinance that the State Government will not be entitled to make a second application for such attachment? I do not think such a question can be answered in the affirmative. In the case now under consideration the position is the same. On my findings recorded hereinbefore, the earlier proceeding was frustrated by the present respondent 2 and successive orders from this Court restrained finalization of the earlier proceedings and the order never reached its finality not because of any laces or negligence on the part of the appellant. Hence the second application which the State Government presented neither intended nor when entertained would frustrate the statutory effect of Section 10. It is too wide a proposition to contend that entertaining successive applications by itself renders Section 10 nugatory. It would be so only when the object of making such an application is to frustrate or circumvent the statutory limit of duration of an order of attachment. But Section 10 itself provides that such an order once made may be extended beyond the prescribed limit. So where the State Government's right to get such an extension had been frustrated and the order of attachment has been caused to lapse before its finalization making of another application for attachment would never mean making Section 10 nugatory. The second reason assigned by the learned District Judge in dismissing the appellant's application, therefore, cannot be sustained.

16. So far as the second point raised by Dr. Pal is concerned, I have already indicated hereinbefore that the same is a matter which has to be taken into consideration by the learned District Judge but he was not given the necessary opportunity to do so nor had the State of Bihar been able to explain why the investigation could not be concluded earlier. As for the other suggestion of Dr. Pal is concerned, I have some doubt in my mind as to whether the learned District Judge could have at all entertained filing of such an application for extension in view of the order of this Court In any event even if such an application had been filed, that would not have been of any consequence because no order could have been passed by the learned District Judge on such an application and the order along with the proceeding would have lapsed under Section 10 if no extension could be granted by the learned District Judge before the expiry of three months as prescribed.

17. In the result, the appeal succeeds and is allowed. The order impugned being set aside, the application under Section 3 of the Ordinance is remanded to the learned District Judge for disposal in accordance with taw. The attachment made by this Court would continue until the learned District Judge passes the preliminary order under Section 4 of the Ordinance on the application now remanded to him.

18. The certificate under Art 134A of the Constitution is prayed for and is refused.

19. Let the operation of this order remain stayed for a period of one month from date.

20. Let the certified copy of this order be issued within seven days from the date of the application.

21. No formal decree need be drawn up but the order be communicated to the Court below forthwith.

S. N. Sanyal, J.

22. I agree.


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