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The Prevention of Corruption Act, 1988
Article 14 in The Constitution Of India 1949
Section 13 in The Prevention of Corruption Act, 1988
Section 5 in The Prevention of Corruption Act, 1988
Article 20(1) in The Constitution Of India 1949
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Patna High Court
Yogendra Kumar Jaiswal vs The State Of Bihar & Ors on 23 February, 2011
Author: Shiva Kirti Singh
        CIVIL WRIT JURISDICTION CASE No.10455 OF 2010

1-SANJAY KUMAR S/O LATE PHULDEO PRASAD, R/O HOUSE NO. 402,
SHANTI LOK APARTMENT, SHEIKHPURA, P.S.SHASTRI NAGAR, DISTT-
PATNA.........................................................................PETITIONER
                             Versus
1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, BIHAR,
PATNA
2-PRINCIPAL SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR,
PATNA
3-SECRETARY,    CABINET   VIGILANCE        DEPARTMENT   BIHAR,
PATNA......................................................................RESPONDENTS
                              with
                     CWJC No.10456 OF 2010
1-SURESH PRASAD S/O LATE SATYANARAYAN PRASAD R/O VILL
SABALI,      P.O.KHAJUHATTI,        P.S.BAIKHUTNPUR,    DISTT-
GOPALGANJ..................................................................PETITIONER
                             Versus
1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY BIHAR,
PATNA.
2-PRINCIPAL SECRETARY, CABINET VIGILANCE DEPARTMENT BIHAR,
PATNA.
3-SECRETARY,    CABINET   VIGILANCE        DEPARTMENT   BIHAR,
PATNA....................................................................(RESPONDENTS)
                              with
                     CWJC No.10692 OF 2010
1-WAKIL PRASAD YADAV S/O LATE KISHAN PRASAD YADAV R/O
KRISHNA KUTIR, ABHIYANTA NAGAR, P.S.- RUPASPUR, WEST OF
CANAL, BAILEY ROAD, PATNA.....................................(PETITIONER)
                             Versus
1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY
2-PRINCIPAL SECRETARY CABINET VIGILANCE DEPARTMENT, BIHAR,
PATNA
3-SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR, PATNA
..............................................................................(RESPONDENTS)
                              with
                     CWJC No.10735 OF 2010
1-YOGENDRA KUMAR JAISWAL S/O LATE JAGANNATH PRASAD R/O
SHIVPURI, PROFESSOR'S COLONY ROAD, P.S.- SHASTRI NAGAR, DISTT.-
PATNA- 800023.............................................................(PETITIONER)
                             Versus
1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, BIHAR,
PATNA.
                               2




2-PRINCIPAL SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR,
PATNA.
3-SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR, PATNA
..............................................................................(RESPONDENTS)
                              with
                     CWJC No.10983 OF 2010
1-NAGA RAM S/O LATE MAHADEV RAM R/O GRAM+P.O.-
BHITBHERWAN,           P.S.-          GOPALGANJ,      DISTT.-
GOPALGANJ................................................................(PETITIONER)
                             Versus
1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, BIHAR,
PATNA
2-PRINCIPAL SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR,
PATNA
3-SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR, PATNA
..............................................................................(RESPONDENTS)
                              with
                     CWJC No.11540 OF 2010
1-NARAYAN MISHRA S/O LATE KRISHNA CHANDRA MISHRA, R/O 36,
VED NAGAR, MADHUKUNJ, RUKANPURA, P.S.-RUPASPUR, DISTT.-
PATNA-800 014............................................................(PETITIONER)
                             Versus
1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY,
GOVERNMENT OF BIHAR, PATNA
2-THE UNION OF INDIA THROUGH THE HOME SECRETARY,
GOVERNMENT OF INDIA
3-UNION LAW SECRETARY, GOVERNMENT OF INDIA, NEW DELHI
4-PRINCIPAL SECRETARY, HOME DEPARTMENT, GOVERNMENT OF
BIHAR, PATNA
5-PRINCIPAL SECRETARY, VIGILANCE DEPARTMENT, GOVERNMENT
OF BIHAR, PATNA
6-DIRECTOR GENERAL, VIGILANCE INVESTIGATION BUREAU, PATNA
7-INSPECTOR GENERAL, SPECIAL VIGILANCE UNIT, PATNA
..............................................................................(RESPONDENTS)
                              with
                    CR.W.J.C. NO. 951 OF 2010
ANIL KUMAR SON OF LATE ISHWAR SHARAN LAL R/O HOUSE NO.54
WEST BOARING CANAL ROAD. P.S.SRI KRISHNAPURI TOWN &
DISTRICT-PATNA............................................................PETITIONER
                             Versus
THE STATE OF BIHAR TROUGH VIGILANCE...................RESPONDENTS.
                              with
                     CWJC No.14044 OF 2010
                                       3




1-SHIVA SHANKAR VERMA S/O RAM PAL VERMA R/O HOUSE NO. 406,
SAUBHAGYA SHARMA PATH, RUKUNPURA, P.S.- RUPASPUR, DISTT.-
PATNA..............(PETITIONER)
                                        Versus
1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, BIHAR,
PATNA
2-THE PRINCIPAL SECRETARY, CABINET VIGTILANCE DEPARTMENT,
BIHAR, PATNA
3-THE SECRETARY, CABINET VIGILANCE DEPARTMENT, BIHAR, PATNA
..............................................................................(RESPONDENTS)
                                                 -----------

For the petitioners : Mr.Y.V. Giri, Sr. Advoacate Mr.Chittranjan Sinha, Sr.Advocate Mr.Abhinav Shrivastava, Advocate Mr.Ravindra Nath Dubey, Advocate Mr. A.D. Verma, Advocate Mr. Narayan Mishra (in person) Mr. Sanjeet Kumar Tiwari, Advocate Mr. Indu Bhushan, Advocate Mr. Sanjeev Kumar, Advocate For the State : Mr. Ram Balak Mahto, Advocate General Mr. Lalit Kishore, AAG-I Mr. A. Amanullah, G.A.

Mr. Vikash Kumar, Advocate.

Mr. Krishana Chandra, Advocate.

                     Mr. Prabhu Narayan Sharma
For Vigilance :      Mr. Arvind Kumar, Advocate.


                               PRESENT

             THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH
             THE HON'BLE DR. JUSTICE RAVI RANJAN

                                  ----------

          Shiva Kirti Singh, J.       All the eight writ petitions have been

heard together as analogous matters because they contain common prayers questioning the constitutional validity of Bihar Special Courts Act, 2009 (hereinafter referred to as the „Act‟) and in particular the 4 validity of Section 5, 13, 14, 15 and 18 of the said Act. The petitioners have also challenged declarations issued on various dates in respect of individual petitioners in terms of Section 5(1) of the Act, as a result whereof cases lodged by Vigilance Department of the State Government against the petitioners for various offences including offence under Section 13 (1) (e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the „Act of 1988‟) shall be tried by Special Court established under Section 3 of the Act. In the context of effect of Section 6 (2) of the Act on pending cases, the validity of this provision has also been seriously challenged on the ground that the Act cannot be made retrospective because it will expose the petitioners to a greater penalty than what is envisaged under the Act of 1988, which would violate Article 20 (1) of the Constitution of India. The other provisions particularly those under Section 5 and Section 13 have been challenged mainly on the ground of excessive and unbridled delegation and violation of Article 14 of the Constitution of India.

2. There is no need in these cases to go into details of facts because there is no dispute that the petitioners are/were public servants and are facing criminal cases lodged by the Vigilance Department, Government of Bihar for various offences including offence under the Act of 1988, particularly Section 13 (1) (e), on the allegation of having pecuniary resources or property disproportionate to their known source of 5 income. If the Act had not been enacted or if it is declared ultra vires then the petitioners will be tried by Special Judge appointed under the Act of 1988. Petitioners are aggrieved mainly because the cases against them shall be tried by Special Courts under the Act which may expose them to a proceeding for Confiscation under Section 13 and other provisions in Chapter III of the Act.

3. Before adverting to impugned features of the Act, the various grounds of challenge to their constitutionality and the submissions of the parties, it would be appropriate to notice that the Act of 1988 was enacted by the Parliament with the object to consolidate and amend the law relating to the Prevention of Corruption and the matters connected therewith. That Act contains detailed provisions including definitions and is still operational and has not been repealed. Section 4 (4) of that Act contains a mandate that a Special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis. In that Act there is no provision like Section 11 of the Act which provides that a Special Court shall not adjourn any trial for any purpose unless the adjournment is necessary in the interest of justice for which reasons should be recorded in writing. The Special Court is also required to make endeavour to dispose of the trial within a period of one year from the date of its institution or transfer, as the case may be. In the Act of 1988 there is no 6 provision for confiscation of property which is now provided under the Act as per provisions of Section 13 to 19 contained in Chapter-III.

4. The Preamble of the Act which has been published in the extraordinary gazette dated 8th February 2010 with a Notification that it has received prior assent of the President mentions that the Act is to provide for speedy trial of certain class of offences and for confiscation of the properties involved. The Preamble also contains further clauses indicating the need to confiscate ill gotten assets of public servants found disproportionate to their known source of income and the need to bring the trial of such public servants to a speedy termination. The Act, in the definition clause i.e., Section 2 refers to the Prevention of Corruption Act, 1988 as "Act" and also to the Code of Criminal Procedure 1973 as the "Code". "Offence" has been defined as an offence of criminal misconduct which attracts Section 13 (1) (e) of the 1988 Act independentally or in combination with other provision of the 1988 Act or any provision of the Indian Penal Code. "Special Court" means Special Court established under Section 3 of the Act. Other words and expressions used in the Act are to have the meanings assigned to them in the Act of 1988 or the Code of Criminal Procedure. Section 21 of the Act clearly provides that the provisions of the Act shall be in addition to and not in derogation of any other law for the time being in force and Section 26 gives the Act an over-riding effect over the Act of 1988, the Criminal 7 Law Amendment Ordinance, 1944 or any other law for the time being in force.

5. Sections 3 and 4 provide for establishment of Special Courts and cognizance of cases by such Courts. Section 5 vests power in the State Government and requires it to make a declaration to that effect in every case in which there is, prima facie, evidence of the commission of an offence as defined under the Act committed by a public servant. Section 5 (2) provides that such declaration shall not be called in question in any Court. As per Section 6, the effect of such declaration is that prosecution in respect of offence shall be instituted only in Special Court and where the declaration relates to an offence for which prosecution has already been instituted and the proceedings are pending in any Court other than Special Court then such proceeding, notwithstanding anything contained in any other law in force, shall stand transferred to Special Court for trial of offence in accordance with the Act. Section 7 spells out jurisdiction of Special Court for the trial of offence covered by the Act. According to Section 8, a Special Court shall follow the procedure prescribed by the Court for the trial of warrant cases before a Magistrate and unless inconsistent with the Act, the provisions of the Code and the Act of 1988 shall apply to the proceeding before Special Court. A Special Court may pass, upon any person convicted by it, any sentence authorized by law for the punishment of the offence of which such person 8 is convicted. In the Act there is no independent and separate provision relating to punishment of any offence. Section 9 provides for an appeal from any judgment and sentence of Special Court to the High Court of Patna, both on facts and law.

6. Chapter-III of the Act begins with Section 13 which provides for confiscation of property. This provision has been seriously assailed by the petitioners on various grounds and shall be dealt with separately. The power to initiate a confiscation proceeding before an Authorized Officer has been vested in the State Government which may, on the basis of, prima facie evidence authorize the public prosecutor to make an application before the Authorized Officer, if it has reasons to believe that any person who was or is a public servant has committed the offence, for confiscation of money and other property which the State Government believes to have been procured by means of offence. Authorized Officer has been defined in Section 2 (b) and means any serving officer belonging to Bihar Superior Judicial Services and who is or has been Sessions Judge/Additional Sessions Judge, nominated by the State Government with the concurrence of the High Court for the purpose of Section 13. An application for confiscation is required to be supported by one or more affidavits disclosing the grounds for the belief that the said person has committed the offence and the amount of money and estimated value of other property believed to have been procured by 9 means of offence and also necessary information and details of such money and property. Section 14 provides for notice for confiscation. Section 14(3) permits rebuttal of evidence, information and particulars brought before the Authorized Officer under Section 14(1) in course of the trial of guilt of offender by the Special Court. Section 15 provides the procedure for arriving at findings necessary for confiscation in general or in certain cases where the money or property specified is held through any other person and/ or to a certain extent only. However, if the market price of the property confiscated is deposited then as per proviso to Section 15(3), the property shall not be confiscated. Section 15(6) stipulates that the order of confiscation passed under this Section, subject to any order passed in appeal under Section 17, shall be final and shall not be called in question in any court of law. According to Section 16, transfer of any money or property referred to in notice under Section 14 shall be null and void after the issue of notice. Section 17 provides for an appeal against order of Authorized Officer to the High Court. Such appeal is required to be disposed of preferably within a period of six months and stay order, if any, passed in an appeal shall not remain in force beyond the prescribed period of disposal of appeal as per sub- section (3) of Section 17. Section 18 provides the power and procedure to take possession of confiscated money or property. Section 19 which is the last Section of Chapter-III provides for refund of confiscated money 10 or property as per order of the High Court in appeal or upon acquittal by Special Court. In case, it is found not possible for any reason to return the property, the affected person shall be paid the price thereof including the money so confiscated with the interest @ 5% per annum calculated from the date of confiscation.

7. As noticed earlier the grievance of the petitioners is mainly against such provisions of the Act and declaration made under Section-5 which brings the petitioners‟ cases under the purview of the Act to be tried by the Special Judge and exposes them to the risk of confiscation proceeding. A faint submission was made at the initial stage of the arguments that the State Legislature does not have legislative competence because the Parliament has already enacted the Act of 1988 which contains in a consolidated form law relating to the Prevention of Corruption and the matters connected therewith. However, this argument was based upon an erroneous impression that the prior assent of the President has not been obtained for enactment of the Act. Once it was shown from the relevant gazette Notification dated 8th February 2010 that such assent is available, this ground to challenge the vires of the Act was not pressed. However, an attempt was made to demonstrate that the purpose of the Act was already taken care of by the provision in Section 4 (4) of the Act of 1988 that the Special Judge shall, as far as practicable, hold the trial of offence on day-to-day basis. According to learned 11 counsel for the petitioners this provision was sufficient to take care of expeditious disposal of trials for offence defined under the Act. So far as the confiscation of property is concerned, it was submitted that under the Code of Criminal Procedure, there are sufficient provisions such as provision for compensation under Section 357 and provision for disposal of property at conclusion of trial under Section 452 and hence there was no real need to enact the Act for either of the aforesaid two purposes. However, the petitioners could not show that the provisions meant to expedite disposal or for confiscation were exactly of similar nature. The provisions for expeditious disposal and confiscation in the Act are visibly and clearly different than those existing from before. To question their utility or good effect would amount to questioning the wisdom of the Legislature which is clearly impermissible. Hence, such submissions are found to be of no significance and do not affect the validity and constitutionality of the Act or the impugned provisions.

8. Coming to the specific provisions impugned by the petitioners, the first and foremost attack is upon Sections 5 (1) and 5(2) of the Act. Assail upon Section 5(1) is on the ground that there are no guidelines provided by the Legislature and it has been left to the whims and unguided discretion of the State Government to select or not to select any particular case involving the offence for purpose of issuing a declaration 12 that it should be tried under the Act. For easy reference Section-5 is extracted hereinbelow:

5. Declaration of cases to Be dealt with under This Act.- (1) If the State Government is of the opinion that there is prima-facie evidence of the commission of an offence alleged to have been committed by a person, who has held or is holding public and is or has been public servant within the meaning of section 2(c) of the Prevention of Corruption Act, 1988 in the State of Bihar, the State Government shall make a declaration to that effect in every case in which it is of the aforesaid opinion.

(2) Such declaration shall not be called in question in any Court.

9. On behalf of the petitioners it has been pleaded and argued that Section-5 (1) of the Act suffers from vice of unreasonable classification between offences covered by the Act of 1988 triable by special Judge under that Act and offence defined under the Act which shall now be tried by a Special Court. According to petitioners such classification is unreasonable and the purpose shown for such classification namely confiscation of property acquired by the offence and speedier trial has no nexus with the classification. Secondly, it has been argued that the power vested in the State Government for declaration of cases to be dealt with under the Act is without any guidelines. It amounts to abdication of legislative power by the legislature in favour of the State Government, the executive, and hence violates the Constitution. Lastly, it was submitted that the power vested in the State Government being unbridled is capable of discrimination between the cases of particular public servants facing charge of the 13 offence under the Act. The State Government may issue a declaration in one case and may not issue in another case although the facts for the purpose of prima facie evidence may be identical.

10. Learned counsels appearing for the petitioners have placed strong reliance upon judgment of the Supreme Court in the case of State of West Bengal v. Anwar Ali AIR 1952 SC 75 in support of their plea of impermissible classification without intelligible differentia. In that case the constitutional validity of West Bengal Special Court‟s Act 1950 arose for determination before Supreme Court. The preamble of that Act declared the purpose of the Act to be- to provide for the speedier trial of certain offence. Section-5 which was the main provision under challenge provided for trial by a Special Court, of such offence or classes of offence or cases or class of cases, as the State Government may by general or special order in writing, direct. Sub-Section-2 of Section-5 excluded any offence for which the trial had already commenced before the coming into force of the special Act. Considering the aforesaid provision the Supreme Court found that the provision enabled discrimination because the necessity of a speedy trial by itself is too vague, uncertain and illusive criterion to form the basis of a valid and reasonable classification. The Court further held that a rule of procedure laid down by law would come as much within the purview of Article-14 as any rule of substantive law and it is necessary that all litigants, who 14 are similarly situated, are afforded same procedural rights for relief and for defence without any discrimination. In effect, in that case it was found that the provision though enabled the State to select some of the offences or cases to be tried by Special Court, there was no classification at all in the real sense of the term because the differentiation was not based on any characteristic which are peculiar to persons or cases which are subjected to the special procedure prescribed by the Act. The classification enabled by the Act was found to be based upon no reasonable or on some differences bearing just and proper relation to the attempted classification. Thus, in absence of any discernable differentia, the classification was held to be hostile, discriminatory and contra Article-14 of the Constitution. For highlighting the aforesaid findings and related discussions various paragraphs of that judgment were highlighted before us in order to persuade us to hold that intelligible differentia is a sine qua non for a valid qualification. We have no difficulty in accepting the aforesaid legal principle in the context of Article-14 of the Constitution.

11. The difficulty, however, arises on account of apparent differences between Section 5 of the Act in question and Section-5 of the West Bengal Special Court‟s Act 1950. On a careful perusal of Section-5 of the Act under question it is found that offence for the purpose of Act has been well defined under Section-2(e) of the Act and as a result the 15 declaration by the State Government can relate only to an offence of criminal misconduct involving or attracting Section-13 (1)(e) of the 1988 Act committed by a person who has held or is holding public office and is or has been a public servant as defined under the Act of 1988. This provides an intelligible differentia between the offence covered by Section-5 of the Act and those left out, although they may involve misconduct or offence under other provisions of 1988 Act.

12. The next issue, as per settled law is duty to find out whether such intelligible differentia has any nexus with the declared object of the Act, i.e., confiscation of the ill-gotten property from the offence and speedier trial of the offence. Offence under Section-13(1)(e)of the 1988 Act is a criminal misconduct by a public servant which as per the definition is attracted-"if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income". As per explanation to Section-13(1)(e), "for the purpose of this Section known sources of income" means, income derived from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. The punishment provided for criminal misconduct by a public servant under Section-13(2) of 1988 Act is imprisonment for a 16 term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.

13. The purpose of the Act is to expedite the trial and facilitate confiscation of ill-gotten gains from the offence. For this object the classification has been done by the legislature so as to bring cases involving disproportionate money or property within the ambit of the Act. In view of the purpose of the Act as already noticed, the intelligible differentia for classification and thereby selection of offence defined, for the applicability of the Act clearly has nexus with the object sought to be achieved by the Act.

14. On behalf of petitioners reliance was placed upon judgment of Supreme Court in the case of In re ART. 143, Constitution Of India, Etc, Air 1951 SC 332 and in the case of In Re The Special Courts Bill, 1978, 1979 1 SCC 380 in support of well established proposition of law that the legislature must discharge its primary legislative function itself and not through others and it cannot abdicate its essential legislative functions by resorting to excessive and unguided delegation to the executive. Excessive and unguided delegation to the executive definitely runs counter to the constitutional scheme of separation of powers between different wings of the State whereunder it is the obligation of the legislature to legislate. This principle has been followed in the case of M/s Devi Das v. State of Punjab, AIR 1967 SC 1895 and in case of 17 Maneka Gandhi v. Union Of India (1978) 1 SCC 248. It was rightly pointed out on the basis of aforesaid judgments of the Supreme Court and also in the case of A.N Parasuraman v. State of T.N., (1989) 4 SCC 683 that legislature cannot delegate its essential functions of laying down legislative policy.

15. On behalf of the State, counter arguments were advanced by learned Advocate General. It was submitted that the propositions of law advanced on behalf of petitioners in respect of requirement of intelligible differentia for a valid classification and necessity of a reasonable nexus between the object and the differentia are fully met by the provisions in Section-5 read with the preamble and objects of the Act. To support this submission, he highlighted the five clauses mentioned in the preamble to the Act which guided the legislature leading to impugned enactment. The relevant parts of the preamble disclose that the Government has sufficient reasons to believe that large number of holders of public offices who are public servants have accumulated vast property disproportionate to their income; it is obligation of the State to prosecute such persons and confiscate their ill-gotten assets; the existing courts of Special Judges cannot be expected to conclude the trials of such persons speedily whereas it is imperative for a parliamentary democracy that such offenders be tried with utmost dispatch and that for the aforesaid purpose it is necessary to establish Special Courts to be presided over by persons 18 who are or have been Sessions Judges/ Additional Sessions Judges and to make some procedural changes to avoid delay in final verdict in the trials, without interfering with the right to a fair trial. Learned Advocate General placed reliance upon judgment of the Apex Court in the case of State (Delhi Admin.) v. V.C.Shukla, AIR 1980 SC 1382 in support of his stand that the impugned provision in Section-5(1) does not suffer from vice of discrimination, abdication of legislative function or excessive and unguided delegation. He also placed reliance upon judgment in the case of R.S.Nayak v. A.R.Antulay, AIR 1984 SC 684 and in the case of State of Madhya Pradesh v. Shri Ram Singh, AIR 2000 SC 870.

16. The case of State (Delhi Admin.) Vs. V.C. Shukla, inter alia dealt with validity of Special Courts Act,1979. The main object of that Act was to provide for speedy trial of a certain class of offences. Nine Clauses in the preamble of that Act gave out the circumstances and the maladies which prompted the Legislature to enact that Act. The Act had been challenged on the basis of Article 14 by raising a grievance that the procedure was harsher or disadvantageous and the classification for subjecting certain offences to the Special Court‟s Act was discriminatory. On a consideration of the object of the Act and various clauses in the preamble as well as relevant provisions of the Act including Section-5 which empower the Central Government to make a declaration for 19 applicability of that Act on the basis of prima facie case, the Supreme Court repelled the challenge based upon Article-14.

17. In the aforesaid case the Special Act was challenged also on the ground of vice of excessive delegation of powers. After extracting Sub-Section- (1) and (2) of Section-2 of that Act in paragraph-80, the Apex Court discussed the law on the subject including judgment in the case of Kathi Ranning Rawat v. State of Saurashtra, AIR 1952 SC 123 and rejected the challenge after elaborate discussion of all the relevant aspects. The Apex Court extracted and relied upon the following passage from the judgment in the case of V.C. Shukla Vs. State of Delhi through CBI, AIR 1980 SC 1962:-

" In fact, this Court has held in a number of cases that where a power is vested in a very high authority, the abuse of the power is reduced to the minimum"

18. The Court held that the power vested under Section-5 was guided by the provisions and stipulations in that Section as well as the guidelines emanating from the preamble of that Act. The judgment in the case of R.S. Nayak v. A.R. Antulay (Supra) was cited for law of interpretation stated in paragraph-18 of the judgment that question of construction arises only in the event of an ambiguity and the Court is entitled to ascertain the intention of the Legislature to remove the ambiguity by construing the provision of the statute as a whole to undo the mischief for which the Legislature enacted the statute. There is no 20 controversy that when two views are possible in respect of a statutory provision, it is the duty of the Court to adopt one which would advance the object of the statute. The judgment in the case of State of Madhya Pradesh v. Shri Ram Singh (Supra) supports the aforesaid view and in paragraph-7 corruption has been compared to all the dreaded diseases such as cancer and HIV leading to AIDS which are seemingly incurable and can ruin a polity.

19. On behalf of State, it was submitted that so far as challenge to Section-5 is concerned, it must fail in view of discussions contained and law laid down in the aforesaid judgments. It was submitted that power of finding out, prima facie case for the purpose of required declaration under Section 5 has been vested in the highest authority, the State Government and hence its misuse should not be assumed. It was pointed out that objects and clauses of the preamble of the Act also contain guidelines and the legislative policy has been clearly laid down, hence, there is no merit in the submissions that power delegated to the state is excessive or unguided. It was further pointed out that by very definition of the term "offence" the class of cases which can be covered under the Act is clear and based upon intelligible differentia with cases left out and the characteristics of the offence are such as would clearly have a nexus with the object of the Act which requires expeditious disposal of cases relating to the offence covered by the Act and whenever materials 21 warrant, to initiate confiscation proceeding as per Section-13, so that property ill-gotten by means of the offence are taken over by the State. There appears merit in the aforesaid submissions insofar as challenge to validity of Section-5 is concerned. Similar provisions were held valid in the case of State (Delhi Admin.) v. V.C. Shukla as well as in a judgment by Division Bench of Orissa High Court in the case of Dibyadarshi Biswal and Ors v. State of Orissa and other analogous cases, dated September 16, 2010. State has placed special reliance upon this judgment because similar provisions in the Orissa Special Court‟s Act, 2006 had been challenged as unconstitutional and the challenge was repelled. No doubt, learned counsels for the petitioners tried to distinguish that judgment by referring to some differences in the preamble of Orissa Act vis-à-vis the Bihar Act under consideration but those differences are merely cosmetic, superfluous and not of any substance.

20. It is useful to record here that in the Orissa case (Dibyadarshi Biswal and Ors v. State of Orissa and others) the provisions in Section 5 were similar and in order to meet the argument that the State Government could still pick and choose specific cases of persons while ignoring those of others, the Orissa Government had filed an affidavit making it clear that the State Government shall mandatorily make a declaration in all cases relating to the offence and its role was limited to satisfy itself that the ingredients of Section-5(1) of the Special Court‟s Act are satisfied. 22 Once such ingredients are found satisfied, the State Government shall make a declaration in all cases. In order to repel any doubt on this issue, an affidavit was filed on behalf of the State of Bihar in CWJC No. 10455 of 2010 to fully clarify its stand. According to that affidavit, all pending cases in which Section 13(1) (e) of the 1988 Act are involved can be categorized under three categories: (i) cases in which the court concerned has already taken cognizance after sanction by the administrative department, (ii) cases in which concerned department has already granted sanction for prosecution but no cognizance has been taken and (iii) cases in which investigation is under progress after institution of a case.

According to the affidavit, the State Government will be issuing declaration in all cases under the categories (i) and (ii). So far as cases under the category (iii) are concerned, the State Government will issue the declaration as soon as it comes to a conclusion that the public servant concerned has committed offence under Section 13(1) (e) of the 1988 Act. It has further been categorically stated that no cases having ingredients of Section 13(1) (e) of the 1988 Act will be allowed to be tried in other courts, except in the Special Court constituted under the Act. Such a stand takes care of any apprehension of discrimination in the matter of issue of declaration between different cases involving offence under Section 13(1)(e) of the 1988 Act.

23

21. To assail Sub-Section-(2) of Section-5 which provides that declaration made by the State Government under Section-5(1) shall not be called in question in any Court, the only argument advanced was that constitutional power of judicial review vested in the High Court cannot be curtailed by Legislation. The State has clarified that such provisions are common to many similar statutes and the expression "Court" will not include High Court of the Supreme Court when they exercise extraordinary constitutional power of judicial review. In view of such clear stand of the State the challenge to the constitutionality of this provision must fail. It hardly requires any clarification that such provision cannot affect the extraordinary constitutional jurisdiction of judicial review vested in the High Court or Supreme Court.

22. The constitutional validity of Section-6 (2) of the Act has been questioned on the ground that making the provisions of the Act retrospective so as to cover the cases already pending in the Courts or cases in which the occurrence was prior to coming in force of the Act will violate Article-20(1) of the Constitution of India because the affected persons like petitioners will be exposed to harsher provisions relating to confiscation which would amount to a greater penalty than what was prescribed for the offence under the Act of 1988. Sub-Section-(2) of Section-6 reads thus:-

"Where any declaration made under section-5 relates to an offence in respect of which a prosecution has already been instituted 24 and the proceedings in relation thereto are pending in a Court other than Special Court under this Act, such proceedings shall, notwithstanding anything contained in any other law for the time being in force, stand transferred to Special Court for trial of the offence in accordance with this Act."

23. Article-20 provides for certain protection in respect of conviction for offence. It prohibits conviction for any offence which was not violation of any law at the time of commission of the act charged as offence and also prohibits infliction of a penalty greater than what could have been inflicted under the law in force at the time of the commission of the offence. The Act does not alter the punishment for the offence as provided under the 1988 Act and hence the issue is narrowed down to find out whether the provisions in Chapter-III of the Act, particularly in Section-13 providing for confiscation of property amount to harsher penalty for the accused who allegedly committed the offence before coming into force of the Act on 8th February 2010. According to learned counsel for the petitioners, confiscation of property by virtue of Section- 13 amounts to penalty by causing very serious consequences so as to affect even property standing in the name of others, allegedly procured by means of the offence, than what was permissible or possible under the law as it stood prior to enforcement of the Act. Such provisions are, therefore, violative of Article 20(1) of the Constitution of India. Elaborating the aforesaid submission, it was contented that the effect of confiscation is too harsh, expropriatory and confiscatory and hence, in 25 context of a person facing charges for offence, it cannot be permitted to be retrospective. It was pointed out that affected property or money may at times be an amalgam of property acquired by lawful means as well as by alleged unlawful means, i.e., by means of the offence. In such circumstances, it was submitted that the principle of disposing of stolen property under the provisions of Cr.P.C cannot be held applicable to such property which requires further adjudication as to how much of the property or which specific property would be covered by the expression "property procured by means of the offence".

24. According to learned counsel for the petitioners the provisions of Chapter-III cannot be described simply as procedural provisions which may generally be permitted to be applied retrospectively because no person has vested right in matters of procedure simplicitor. To support this submission it was pointed out that effect of Section-16 is to take away rights to transfer any money or property mentioned in a notice under Section-14 because such transfer has been rendered void if the property is subsequently confiscated under Section-15. Similarly, it was pointed out that under Section-18 the authorized officer has been empowered to take forceful possession of the confiscated property which is likely to result in being thrown out on the street from dwelling units unless the market price of the property is deposited with the authorized officer as per proviso to Section-15(3). It was pointed out that although 26 appeal has been provided against order of confiscation to the High Court but as per Section 17(3) the appeal is to be disposed of preferably within a period of six months and the stay order, if any, in the appeal shall not remain in force beyond the period prescribed for disposal of appeal. According to learned counsel for the petitioners such provisions as indicated above are substantive provisions affecting the accused persons adversely and seriously only because of retrospective application of provisions for confiscation which were not in existence earlier.

25. On behalf of State it was submitted that although the provisions for confiscation are new provisions but they do not amount to any penalty for the offence and are, hence, not affected by the protection in Article-20(1) of the Constitution which bars infliction of a penalty greater than what might have been inflicted as per law at the time of the commission of the offence. According to State the confiscation proceeding is an independent judicial proceeding to be conducted by the Authorized Officer and it cannot be treated to be a part of the criminal proceeding against the accused which is required to be tried by Special Court under the Act.

26. The issue as to whether confiscation of property provided under the Act would amount to a penalty for the offence or not appears to be a complex issue because the Act of 1988 or the Indian Penal Code prescribing punishments have not been amended by the Act. Those Acts 27 use the expression "punishment" for prescribed offence and not the word "penalty" but in the context in which the word penalty has been used in Article-20 (1) of the Constitution, it must be treated as analogous to the word "punishment" prescribed for an offence which shall cover punishment of imprisonment as well as fine prescribed for any offence. The question as to whether confiscation under the Act would amount to punishment for the offence or not, now becomes simple to be answered.

27. The word penalty or punishment in context of a criminal offence is a well understood concept. Once an accused is found to be guilty, he is punished either by depriving him of his personal liberty by way of imprisonment which puts restriction upon his freedom to move around freely or else he is put to monetary loss by imposition of fine. Monetary loss by way of punishment would happen only in a case where money legally belonging to the accused or his estate is to be paid to the State. The concept of confiscation proceeds on an entirely different footing. In confiscation as contemplated under the Act the deprivation of money or property is on the hypothesis that it does not legally belong to the accused because it is ill-gotten property procured by means of the offence which in the case of a public servant amounts to breach of trust by him qua his employer, the State. Once this hypothesis is carried to its logical corollary by proving the necessary ingredients so as to show that the property or money in question was procured by means of offence then 28 confiscation of such property or money cannot amount to depriving the accused or the concerned public servant either of his personal liberty or of any property lawfully belonging to him. Hence, confiscation of money or property as provided under the Act cannot be held to be a punishment to the delinquent.

28. The aforesaid view stands supported by a judgment of Privy Council in the case of Attorney General for Hong Kong V. Reid and others reported in All E.L.R (1994) 1, page 1. The relevant principle of equity as enunciated in the said judgment is as follows:-

"When a bribe is accepted by a fiduciary in breach of his duty then he holds that bribe in trust for the person to whom the duty was owed. If the property representing the bribe decreases in value the fiduciary must pay the difference between that value and the initial amount of the bribe because he should not have accepted the bribe or incurred the risk of loss. If the property increases in value, the fiduciary is not entitled to any surplus in excess of the initial value of the bribe because he is not allowed by any means to make profit out of breach of duty."

29. This proposition was derived on the ground that equity acts in personnem and insists that it is unconsonable for a fiduciary to obtain and retain a benefit in breach of duty. A fiduciary who received the bribe in breach of duty must pay an account for the bribe to the person to whom that duty was owed. The aforesaid judgment in the case of Attorney General for Hong Kong V. Reid and others was rightly relied upon by Mr. Amanullah, learned counsel for the State appearing in one of the cases in support of the contention that confiscation of property procured 29 by means of the offence by a public servant cannot amount to any legal loss to the accused and hence confiscation under the provisions of the Act does not amount to any penalty or punishment. In that view of the matter the impugned provision in Section-6(2) of the Act is found to be not in violation of Article 20(1) of the Constitution of India. It is well established in law that a competent Legislature has the power to make laws with retrospective effect also unless such Act violates constitutional mandate and takes away vested right contrary to law or requirements of fairness. In that view of the matter challenge to constitutionality of Section-6(2) of the Act must fail.

30. So far as constitutional validity of Section-13 and other provisions relating to confiscation in Chapter-III of the Act are concerned, a major part of the grievances and submissions advances on behalf of the petitioners have already been noted in context of challenge to Section-6 (2) of the Act. In that context, it has been found that confiscation under the Act of property procured by means of the offence cannot be treated as penalty or punishment because even if such property is in the name of accused or some other person, on account of equitable principles recognized by the Courts, over such property the State would have lawful claim. Specific grounds for challenging the vires of Sections- 13 to 19 in Chapter-III of the Act are on the ground of alleged violation of Article-14 of the Constitution. On behalf of the petitioners it has been 30 submitted that procedure prescribed for adjudicating the issues relating to confiscation of property suffers from clear arbitrariness because--(1) The confiscation, including taking over of possession of confiscated property can precede even investigation as well as determination of guilt in the trial; (2) Authorized Officer for adjudicating confiscation proceeding is often the same Sessions Judge/Additional Sessions Judge who preside over the Special Court for conducting the trial and in such eventuality there is every likelihood of prejudice and bias being created for the trial on account of prior knowledge and adjudication in respect of defence of the accused which has to be disclosed for contesting State‟s claim for confiscation; (3) Even if the High Court finds good case and grants stay of order for confiscation in the appeal provided under Section-17 of the Act, such stay will cease to be in force if the hearing of the appeal is not concluded within the time period fixed by Section-17(3) of the Act and the person aggrieved by order of the Authorized Officer will have to suffer evil consequences for no fault of his; (4) The provision for refund of confiscated money or property is unreasonable and harsh because State Government in spite of losing in the confiscation matter on account of appellate order or acquittal by the Special Court, may not return the property of the aggrieved person and the interest @ 5% per annum on the value of the property cannot be a sufficient compensation for the wrong caused to the aggrieved persons specially if he with his family are 31 inflicted with humiliation and suffering on account of being thrown out of a dwelling house in which they ordinarily reside. This would also violate right to life befitting a human person guaranteed by Article-21 of the Constitution; (5) The requirement and compulsion of disclosing defense by the accused for contesting the confiscation proceeding is violative of guarantee against self incrimination flowing out from Article-20 (3) which prohibits compelling an accused to be a witness against himself.

31. On behalf of the petitioners it was shown that Section-13 empowers the public prosecutor to make application to the Authorized Officer for confiscation even if the Special Court has not taken cognizance of the offence and the matter may still be at the stage of investigation. On behalf of the State it was submitted that taking of cognizance or investigation of the offence may remain pending on account of various peculiar reasons of a case but the State Government which is a responsible and high authority can resort to confiscation proceeding only on the basis of prima facie evidence when such evidence furnishes reasons to believe that the public servant or holder of a public office has committed the offence. It has been further highlighted that application for confiscation is required to be accompanied by one or more affidavits disclosing the grounds for belief that the concerned person has committed the offence as well as the amount of money and 32 estimated value of other property believed to have been procured by means of the offence. The location of the money and other property procured by means of the offence as well as necessary particulars also have to be furnished through the application. According to learned Advocate General, these provisions contain sufficient safeguards against initiation of a baseless and vexatious confiscation proceeding, arbitrarily without any material. He has further submitted that the grievance of the petitioners that confiscation proceeding should be after the conclusion of trial is based upon a misconception that confiscation proceeding and trial have to be part of the same proceeding. He again emphasized that the property sought to be confiscated through the process prescribed in Chapter-III of the Act is property believed to have been procured by means of the offence and hence property lawfully belonging to the State. Hence, in this context, the ordinary principles of criminal jurisprudence shall have no application because in ordinary proceedings confiscation is generally of property belonging to the accused or an abettor which is taken over by the State by way of punishment.

32. In the light of the nature of property sought to be confiscated under the Act, the submissions advanced on behalf of the State are found to have merit. The provision in Section-13 of the Act and related provisions in Chaprter-III cannot be faulted on account of ordinary principles of criminal jurisprudence that penalty or punishment must 33 follow determination of guilt of the accused. The Act guarantees fairness to the accused by making order of confiscation subject to appeal to be determined by the High Court as well as subject to the final determination of guilt of the accused in trial. Hence, the general criticism that the procedure for confiscation should be struck down as patently arbitrary and violative of Article-14 of the Constitution is not found acceptable. As noticed earlier there is provision for notice for confiscation and the proceeding for confiscation is to be adjudicated by the Authorized Officer who has to be a Sessions Judge or Additional Sessions Judge. There is fair opportunity provided for considering the case of the delinquent before passing an order of confiscation.

33. So far as likelihood of bias is concerned, it is true that generally a trained judicial mind of a person holding post of Sessions Judge/Additional Sessions Judge is not expected to suffer from prejudice on account of hearing of confiscation matter as well as conducting the trial of an accused under the Act. But requirement of fairness which flows from Article-14 of the Constitution has clearly guided the Legislature in entrusting the confiscation proceeding to an Authorized Officer whereas the trial has been entrusted to the Special Court. Both the terms i.e., "Authorized Officer" and "Special Court" have been separately defined and this appears to have a distinct purpose to ensure that confiscation proceeding is not entrusted to the Special Court which is 34 only to conduct the trial. Hence, the State Government and the High Court are expected to keep this distinction in mind and make sure that confiscation proceeding and criminal trial against accused of an offence are not conducted by the same judicial officer. This alone can take care of likelihood of bias in the mind of the Special Court. Otherwise, a presiding Judge who has already formed an opinion on the merits of the allegations regarding disproportionate assets in course of a confiscation proceeding may not remain unbiased against the same delinquent in course of criminal trial.

34. So far as evil and arbitrary consequences flowing out of provision in Section-17(3) are concerned, the apprehension on face of it, appears to be justified. Prima facie, it appears that the life of the stay order granted by the High Court is confined to only six months. If that would have been the meaning of the relevant provision, it would have been open to challenge because even if the appeal has merits and is not disposed of by the High Court within six months for no fault of the appellant, he would suffer serious evil consequences for no fault of his. However, on a careful reading of Sub-Section-(3) it becomes clear that the Legislature has not given a definite and fixed period of six months as the time for disposal of appeal. The actual words are as such-- "An appeal preferred under Sub-Section-(1) shall be disposed of preferably within a period of six months from the date it is preferred, and stay order, 35 if any, passed in an appeal shall not remain in force beyond the prescribed period of disposal of appeal". The use of the word "preferably" is a definite pointer that the Legislature has only indicated its preference that the appeal should be disposed of within a period of six months but it also permits disposal of the appeal beyond the period of six months. Therefore, it will not be proper to construe that the prescribed period of disposal of appeal is only six months. Hence, in our considered view six months is not the prescribed period of disposal of appeal. It is only desirable and preferable that the appeal should be disposed of within six months. No doubt, stay order is not to remain in force beyond the prescribed period of disposal of appeal but in view of the aforesaid discussion and the conclusion that there is no prescribed period of disposal of appeal, the stay order passed by the High Court will not lose its force automatically on expiry of any particular period. This interpretation is to be preferred in order to save the provision from the vice of unreasonableness by causing undue hardship upon the appellant for no fault of his. In appropriate case where the accused-appellant delays hearing of the appeal, High Court may be moved for vacating the order of stay.

35. So far as attack on reasonableness and validity of Section-19 is concerned, there appears some merit in the contention advanced on behalf of the petitioners that non return of property for any reason and 36 compensation @ 5% interest per annum may not be reasonable at least in cases where there are no good reasons for not returning the property even after it has been found that the property lawfully belongs to the delinquent/accused. In such an eventuality the compensation by way of interest @ 5% per annum will also not be adequate because with such rate of interest, it is not possible at a later date to buy similar property in ordinary circumstances. There can be no justification to cause any hardship or loss to the delinquent or the accused once the confiscation proceeding fails. The requirement of Article-14 varies in different situations and it is the constitutional obligation upon the State that it shall not be unreasonable and harsh to anyone for no good reasons. Therefore, Section-19 requires clarification by way of interpretation that ordinarily, when the confiscation 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. For not returning the property the State shall have to seek permission of the High Court or the Special Court as the case may be to return only the price of the property and such permission shall be granted only when the State is able to show good reasons as to why it is not possible to return the property. So far as the rate of interest of 5% per annum is concerned, it is clearly insufficient and amounts to punishing an innocent person for no good reasons. Hence, in case the confiscated property is not returned 37 by showing good reasons that it is not possible to do so, the interest payable must be at the usual bank rate prevailing during the relevant period for a loan to purchase or acquire similar property. This direction is necessary in order to save the vires of Section-19 of the Act. Otherwise, the relevant provisions would fall foul of Article-14 of the Constitution of India.

36. As indicated earlier the petitioners have raised a grievance against forceful eviction from dwelling house ordinarily occupied by the delinquent/accused prior to final determination of guilt in course of trial for the offence. As noticed, Section-18 of the Act authorizes taking forceful possession of the property if the delinquent refuses or fails to comply with the order for handing over possession of the confiscated property. This provision makes no distinction between properties found fit for confiscation. All the properties subjected to confiscation proceeding whether they are dwelling house or other kinds of property have been treated alike. According to the petitioners an exception should have been made in respect of a dwelling house or unit where the delinquent/accused ordinarily resides himself with or without his family because confiscation has been made subject to final determination of innocence or guilt of the accused in trial. Such a differential treatment to a dwelling house or unit has been claimed on the ground that dwelling house meets one of the basic needs of humans and it would be arbitrary 38 to deprive a delinquent of such basic requirement when the trial is still pending.

37. On the other hand, on behalf of the State it was submitted that entire confiscated property has to be treated similar and not making of an exception for a dwelling house or unit from the provisions of Section-18 does not violate any constitutional provision.

38. The argument, advanced on behalf of the petitioners, prima facie, appears attractive because it cannot be denied that housing is a basic need of human beings. Unjustified deprivation of a dwelling house/unit can have serious ill effects. However, this argument suffers from a fallacy. A classification between different properties ultimately found fit for confiscation in a confiscation proceeding under the Act will be a constitutional requirement only if the classification is essential otherwise two dis-similar classes would be treated as similar. The classification will not be justified or permissible even if it meets the first requirement indicated above, unless it can be held that the classification has reasonable nexus with the object sought to be achieved by the Act. The object of the Act has already been noticed earlier. One of the relevant purposes is to confiscate all the ill gotten money or property. If such property includes a dwelling house or unit also, can there be any requirement of classification so as to exclude the house property only on the ground of hardship. In our considered view, under the scheme of the 39 Act, such exclusion bears no reasonable nexus with the object of the Act, rather it would, to a large extent, frustrate the object of the Act. We have already considered in detail the provisions relating to confiscation including provision for appeal and stay and have held those provisions to be reasonable and valid. If after undergoing the reasonable procedure of confiscation proceeding, including appeal, a dwelling house or unit of the delinquent is found to be ill-gotten property which cannot be accounted on the basis of lawful income of the delinquent, there can be hardly any justification to allow the delinquent to continue in enjoyment of such ill- gotten property only because the trial is still pending. The Legislature has taken precautions to expedite the trial and if it is made to linger in spite of such provisions, the accused would always be at liberty to take remedial action and get the trial expedited. If the grievance raised on behalf of the petitioners is accepted as genuine and an exception is made in respect of a dwelling house, it is likely to have a delaying effect upon the trial and may also lead to unnecessary complicated issues as to how many houses can be said to be occupied by the accused himself so as to be exempted on the plea that he ordinarily resides there himself with or without his family. In our considered view, the plea raised on behalf of the petitioners as noted above, under the scheme of the Act does not have any merit and it is not possible to hold that non exclusion of residential house property from the purview of provisions for taking forceful 40 possession of confiscated property would violate Articles 14 and 21 of the Constitution of India.

39. The last and the only important contention which remains to be considered is that the confiscation proceeding as provided under the Act should not be permitted because it will leave no option to the affected person but to disclose his defence prior to holding of the trial and such compulsion upon him to disclose true state of affairs in the confiscation proceeding will violate the right guaranteed by the Article- 20(3) of the Constitution.

40. Prima facie, the aforesaid submission appears to be attractive but it has no substance. Article-20 is in respect of trial and punishment for offences. Clause (3) of the Article-20 protects the accused in course of trial for an offence wherein he cannot be compelled to be a witness against himself. So far as the confiscation proceeding under Chapter-III of the Act is concerned, as discussed earlier it is a separate proceeding by an Authorized Officer and not by the Special Court dealing with the trial. In confiscation proceeding, giving an opportunity of defence to the delinquent cannot be construed as compelling him to be a witness against himself. Considering the nature of the two proceedings, both can be maintained together or one after another and no provision in the Act compels the accused to be a witness against himself so far as offences are concerned. Learned counsel for the State has rightly placed reliance upon 41 the judgment of the Supreme Court in the case of State of Bombay v. Kathi Kalu, AIR 1961 SC 1801 wherein a constitution Bench held that Section-27 of the Evidence Act was valid because self incriminatory statement given by accused is without compulsion. In any event, the order of confiscation has been made subject to a final judgment in the trial by the Special Court and therefore if in a peculiar case the accused is advised, in his interest, not to disclose the true state of affairs in the confiscation proceeding but to reserve it only for the criminal trial, he would ultimately suffer no loss. He is not compelled but only given an opportunity to take a defence to overcome an order of confiscation. Further, if the accused has sufficient interest to expedite the criminal trial, there is no presumption that in all cases confiscation proceeding will be held and concluded prior to the taking of defence in the criminal cases. Even if the aforesaid considerations are brushed aside, as indicated earlier the right guaranteed by Clause-(3) of Article-20 of the Constitution is only in respect of trial of an offence and not for civil or other proceeding such as a proceeding for confiscation under the Act.

41. No other issue relating to vires or constitutionality of the Act remains to be decided. In order to be fair to the counsels for the petitioners and the State it is indicated that some other judgments which follow the judgments noticed earlier were also cited but they have not 42 been considered separately because the proposition of law was found to be well established or covered by the judgments already noticed.

42. In CWJC No. 10735/2010 an Interlocutory Application bearing no. 10468/2010 was filed on 15th December 2010 after the hearing on the vires of the Act had already commenced on 9th December 2010. The Court indicated its displeasure and unwillingness to decide the vires of the Bihar Special Court‟s Rules 2010 which was sought to be challenged through the said I.A. No. 10468/2010. Hence that I.A. was not pressed in view of our observation that we shall grant liberty to the petitioners that if the need arises they may challenge the legality of the Rules at a later stage. We, accordingly, grant such liberty to the petitioners. It may be recorded here that in CWJC No.11540 of 2010 the petitioner Narayan Mishra has challenged the Rules also on the same grounds on which the Act has been challenged but as indicated above we have not gone into the vires or legality of the Rules and hence the liberty granted above will also be available to the aforesaid petitioner, Narayan Mishra. Although we have given the liberty aforesaid but sometimes it is useful to observe certain facts in order to avoid unnecessary litigation. In respect of Bihar Special Court‟s Rules 2010 a grievance was raised that Rule 12(f) envisages a procedure which is contrary to procedure prescribed for trial of warrant cases before a Magistrate which has been prescribed by Section-18(1) of the Act. It goes without saying that in case 43 of conflict between Act of Legislature and Rules framed under the Act, the provisions of the Act will prevail. The State of Bihar is expected to take note of the aforesaid submissions in its own interest and amend the relevant Rule if there is any need felt for the same.

43. In the final result, we uphold the validity of the Bihar Special Court‟s Act, 2009 and on that account all the writ petitions are dismissed. However, while repelling the challenge to the vires of the Act, we have clarified or interpreted the relevant provisions of the Act including Section-17 and 19 which shall be binding on the State in order to protect the constitutional validity of the concerned provisions and the Act.

44. There shall be no order as to costs.

     I agree                                       (Shiva Kirti Singh, J.)

Dr. Ravi Ranjan, J.



                                                  (Dr. Ravi Ranjan, J.)

Patna High Court
The 23rd of February 2011
Md. Perwez Alam/AFR