SC upholds the Vires of Bihar and Orissa Spl. Courts Act including provisions for Confiscation of Assets amassed by public servants [Read Judgment]

In a significant judgment rendered today, the Apex Court has upheld the constitutionality of two legislations passed by the states of Bihar and Odisha to tackle corruption in their respective states.Called upon to decide the correctness of the judgments rendered by the High Court of Judicature of Orissa at Cuttack and the High Court of Judicature at Patna upholding the constitutional validity of the Orissa Special Courts Act, 2006 (for short, “the Orissa Act”) and the Bihar Special Courts Act, 2009 (for short, “the Bihar Act”), respectively, a Bench of the Apex Court comprising of Justice Anil R Dave and Justice Dipak Misra has held that the provisions in both the enactments providing for confiscation of property or money or both neither violates Article 14 nor Article 20(1) nor Article 21 of the Constitution, and that the establishment of Special Courts under the Orissa Act as well as the Bihar Act is not violative of Article 247 of the Constitution.The Supreme Court however declared that Rule 12 of the Bihar Special Court Rules, 2010 which lays down that the learned Special Judge shall follow summary procedure, is ultra vires the Bihar Act as the statute provides for warrant procedure.The appellants are/were public servants and facing criminal cases for various offences including the offences under the Prevention of Corruption Act, 1988 (for short, ‘the 1988 Act’), particularly Section 13(1)(e) of the 1988 Act on the allegation that they were having property disproportionate to their known sources of income. The grievance of appellants in these appeals related to the impact and effect of the legislations brought during the pendency of the proceedings.The State legislature keeping in view the accumulation of extensive properties disproportionate to the known sources of income by persons who had held or are holding high political and public offices, thought it appropriate to provide special courts for speedy trial for certain class of offences and for confiscation of properties involved; and accordingly, enacted the Orissa Act which was passed by the Orissa Legislative Assembly that got the assent of the President of India. The State Government in exercise of its power conferred under Section 27 of the Orissa Act framed a set of Rules, namely, the Orissa Special Courts Rules, 2007 (for short “2007 Rules”).The constitutional validity of the Act as well as the Rules (prior to the amendment of the Rule) was assailed before the High Court in a batch of writ petitions.The High Court of Orissa referred to the decision in Kishore Chandra Patel v. State of Orissa, and observed that in the aforesaid judgment, the constitutional validity of Part III regarding confiscation of monies and properties of the accused persons, who were facing the criminal trial in the Special Court constituted under the Orissa Special Courts Act, 1990 by the State Government for speedy disposal, was held to be legal and valid and did not violate any of the fundamental rights and were not inconsistent with the statutory rights conferred either under the Code or the Criminal Law Amendment Act or Civil Procedure Code. The High Court also took note of the fact that the earlier Division Bench had issued certain directions and an ordinance was brought in to cure the flaws and the Court had ultimately found that the amended Act was constitutional. Keeping the same in view, the Division Bench by the impugned order opined that section 5 of the Act is constitutional.After making reference to the authority in Delhi Administration v. V.C. Shukla , the Court opined that the attack based on discrimination was unfounded and accordingly answered the issues against the writ petitioners. While dealing with the question no. 3 which pertained to the repugnancy of the Orissa Act to the provisions of the Prevention of Money Laundering Act, 2002 as amended by Amendment Act 2009, it has been opined that there was no repugnancy between the two statutes, for the procedure under both the statutes relating to confiscation of monies and properties of the accused are different and further the Prevention of Money Laundering Act, 2002 does not efface the prosecution against the persons facing prosecutions under the 1988 Act.With respect to the Bihar Act, it was contended before the Patna High Court that the declaration made under Section 5 which brings the case of the accused under the purview of the Bihar Act to be tried by the Special Judge, exposes him to the risk of confiscation of property which the accused does not face under the 1988 Act; that when there are sufficient provisions in the CrPC pertaining to disposal of property at conclusion of the trial under Section 452, there was no justification or warrant to introduce a provision for confiscation; that no guidelines have been provided by the legislature for working of Section 5(1) and 5(2) of the 2009 Act and it is completely unguided giving total discretion to the State Government to pick and choose any...

SC upholds the Vires of Bihar and Orissa Spl. Courts Act including provisions for Confiscation of Assets amassed by public servants [Read Judgment]

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