# YOGENDRA KUMAR JAISWAL ETC v. STATE OF BIHAR & ORS

- **Citation:** [2015] 14 S.C.R. 1037
- **Court:** Supreme Court of India
- **Decided:** 2015-12-10
- **Case number:** Civil Appeal Nos. 6448-6452 of 2011
- **Bench:** Anil R. Dave, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/yogendra-kumar-jaiswal-etc-v-state-of-bihar-ors-30755
- **Pages:** 153

## Headnote

A
B
Orissa Special Courts Act, 2006 - Constitutionality ofAccumulation of extensive properties disproportionate to the
known sources of income by persons who had held or are C
holding high political and public offices - Special Courts
under the Act for speedy trial for certain class of offences
and for confiscation of properties - Held: The Orissa Special
Courts Act is not hit by Art. 199 of the Constitution -
Constitution of/ndia-Art.199.
D
Orissa Special Courts Act, 2006 - Special Courts
under - Establishment of - Held: The establishment of
Special Courts under the Orissa Special Courts Act is not
violative of Art. 247 of the Constitution- Constitution of IndiaE
Art. 247.
Bihar Special Courts Act, 2009 - Special Courts
under - Establishment of - Held: The establishment of
Special Courts under the Bihar Special Courts Act is not
violative of Art. 247 of the Constitution- Constitution of India -
F
Art. 247.
Orissa Special Courts Act, 2006 - ss. 5 and 6 -
Provisions pertaining to declaration and effect thereof- Held:
The provisions pertaining to declaration and effect of
declaration as contained in ss.5 and 6 of the Orissa Special G
Courts Act, and the Bihar Special Courts Act, are
constitutionally valid as they do not suffer from any
unreasonableness or vagueness- Bihar Special Courts Act,
2009.
H
1037
.1038
SUPREME COURT REPORTS
[2015] 14 S.C.R.
A
Orissa Special Courts Act, 2006 -
Chapter Ill -
Confiscation ofproperty or money or both- Held: Chapter 111 ·
of the both the Acts, namely, Orissa Special Courts Act and
Bihar Special Courts Act, 2009, providing for confiscation of
property or money or both neither violates Article 14 nor
B Article 20(1) nor Article 21 of the Constitution - Constitution
of India -Arts. 14, 20(1) and 21.
Bihar Special Courts Act, 2009 -
Chapter Ill -
Confiscation of property or money or both - Held: Chapter Ill
of the both the Acts, namely, Orissa Special Courts Act, 2006
C and Bihar Special Courts Act, providing for confiscation of
property or money or both neither violates Article 14 nor
Article 20( 1) nor Article 21 of the Constitution - Constitution
of India-Arts. 14, 20(1) and 21.
0
Orissa Special Courts Act, 2006 -
Procedure for
confiscation and proceedings before the Authorised Officer
- Held: The procedure provided for confiscation and the
proceedings before the Authorised Officer do not cause any
discomfort either to Article 14 or to Article 20(3) of the
E Constitution - Bihar Special Courts Act, 2009 - Constitution
oflndia-Arts. 14 and 20(3).
Orissa Special Courts Act, 2006 - Provision relating to
appeal - Held: The provision relating to appeal in the Act is
treated as constitutional on the basis of reasoning that the
F power subsists with the High Court to extend the order of stay
on being satisfied.
Bihar Special Courts Act, 2009 - Provision relating to
appeal - Held: The provision relating to appeal in the Act is
treated as constitutional on the basis of reasoning that the
G power subsists with the High Court to extend the order of stay
on being satisfied.
H
Orissa Special Courts Act, 2006 - s.18(1), proviso -
Held: The proviso to s.18(1) of the Orissa Special Courts Act
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1039
does not fall foul of Art.21 of the Constitution - Constitution
A
oflndia -Art. 21.
Orissa Special Courts Act, 2006 - s.19 - Held: The
provisions contained in s. 19 pertaining to refund of
confiscated money or property does not suffer from any kind
of unconstitutionality.
B
Bihar Special Courts Rules, 2010 - r.12(a) and (f) -
Held: Sub-rules (a) and (f) of r.12 of the BiharSpecial Court
Rules being violative of the language employed in the Bihar
Special Courts Act are ultra vires-Anything contained therein c
pertaining to the summary procedure is also declared as ultra
vires the Bihar Special Courts·Act - Bihar Special Courts
Act, 2009.
Disposing of the appeals, the Court
HELD:1. Corruption, a 'noun' when assumes all the D
characteristics of a 'verb', becomes self-infec

## Text

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[2015] 14 S.C.R. 1037
YOGENDRA KUMAR JAISWAL ETC.
v.
STATE OF BIHAR & ORS.
(Civil Appeal Nos. 6448-6452 of 2011)
DECEMBER 10, 2015
[ANIL R. DAVE AND DIPAK MISRA, JJ.]
A
B
Orissa Special Courts Act, 2006 - Constitutionality ofAccumulation of extensive properties disproportionate to the
known sources of income by persons who had held or are C
holding high political and public offices - Special Courts
under the Act for speedy trial for certain class of offences
and for confiscation of properties - Held: The Orissa Special
Courts Act is not hit by Art. 199 of the Constitution -
Constitution of/ndia-Art.199.
D
Orissa Special Courts Act, 2006 - Special Courts
under - Establishment of - Held: The establishment of
Special Courts under the Orissa Special Courts Act is not
violative of Art. 247 of the Constitution- Constitution of IndiaE
Art. 247.
Bihar Special Courts Act, 2009 - Special Courts
under - Establishment of - Held: The establishment of
Special Courts under the Bihar Special Courts Act is not
violative of Art. 247 of the Constitution- Constitution of India -
F
Art. 247.
Orissa Special Courts Act, 2006 - ss. 5 and 6 -
Provisions pertaining to declaration and effect thereof- Held:
The provisions pertaining to declaration and effect of
declaration as contained in ss.5 and 6 of the Orissa Special G
Courts Act, and the Bihar Special Courts Act, are
constitutionally valid as they do not suffer from any
unreasonableness or vagueness- Bihar Special Courts Act,
2009.
H
1037
.1038
SUPREME COURT REPORTS
[2015] 14 S.C.R.
A
Orissa Special Courts Act, 2006 -
Chapter Ill -
Confiscation ofproperty or money or both- Held: Chapter 111 ·
of the both the Acts, namely, Orissa Special Courts Act and
Bihar Special Courts Act, 2009, providing for confiscation of
property or money or both neither violates Article 14 nor
B Article 20(1) nor Article 21 of the Constitution - Constitution
of India -Arts. 14, 20(1) and 21.
Bihar Special Courts Act, 2009 -
Chapter Ill -
Confiscation of property or money or both - Held: Chapter Ill
of the both the Acts, namely, Orissa Special Courts Act, 2006
C and Bihar Special Courts Act, providing for confiscation of
property or money or both neither violates Article 14 nor
Article 20( 1) nor Article 21 of the Constitution - Constitution
of India-Arts. 14, 20(1) and 21.
0
Orissa Special Courts Act, 2006 -
Procedure for
confiscation and proceedings before the Authorised Officer
- Held: The procedure provided for confiscation and the
proceedings before the Authorised Officer do not cause any
discomfort either to Article 14 or to Article 20(3) of the
E Constitution - Bihar Special Courts Act, 2009 - Constitution
oflndia-Arts. 14 and 20(3).
Orissa Special Courts Act, 2006 - Provision relating to
appeal - Held: The provision relating to appeal in the Act is
treated as constitutional on the basis of reasoning that the
F power subsists with the High Court to extend the order of stay
on being satisfied.
Bihar Special Courts Act, 2009 - Provision relating to
appeal - Held: The provision relating to appeal in the Act is
treated as constitutional on the basis of reasoning that the
G power subsists with the High Court to extend the order of stay
on being satisfied.
H
Orissa Special Courts Act, 2006 - s.18(1), proviso -
Held: The proviso to s.18(1) of the Orissa Special Courts Act
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1039
does not fall foul of Art.21 of the Constitution - Constitution
A
oflndia -Art. 21.
Orissa Special Courts Act, 2006 - s.19 - Held: The
provisions contained in s. 19 pertaining to refund of
confiscated money or property does not suffer from any kind
of unconstitutionality.
B
Bihar Special Courts Rules, 2010 - r.12(a) and (f) -
Held: Sub-rules (a) and (f) of r.12 of the BiharSpecial Court
Rules being violative of the language employed in the Bihar
Special Courts Act are ultra vires-Anything contained therein c
pertaining to the summary procedure is also declared as ultra
vires the Bihar Special Courts·Act - Bihar Special Courts
Act, 2009.
Disposing of the appeals, the Court
HELD:1. Corruption, a 'noun' when assumes all the D
characteristics of a 'verb', becomes self-infective and
also develops resistance to antibiotics. In such a
situation the disguised protagonist never puts a
Hamletian question - "to be or not to be" - but marches E
ahead with perverted proclivity - sans concern, sans
care for collective interest, and irrefragably without
conscience. In a way, corruption becomes a national
economic terror. This social calamity warrants a different
control and hence, the legislature comes up with special
legislation with stringent provisions. [Para 1][1056-B-D] F
2. The provisions in both the Acts, namely, Orissa
Special Courts Act, 2006 and Bihar Special Courts Act,
2009, are almost similar. The State legislature in the State
of Orissa keeping in view the accumulation of extensive G
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
H
1040
SUPREME COURT REPORTS
[2015] 14 S.C.R.
A 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. [Para 5] [1057-D-G]
3.1. The Orissa Special Courts Act, 2006 which
8
specifically deals with offences under Section 13(1)(e)
of the Prevention of Corruption Act, 1988 and provides
for Special Courts for the trial of the said offences has
got the assent of the President. It is to be understood
that under the Prevention of Corruption Act, 1988, the
C State had the authority to appoint special Judges in
respect of all the offences. Presently, one part of the
offence has been carved out and after obtaining assent
Special Courts have been established. In view of the fact
situation, it does not violate Article 247 of the
D Constitution. That apart, the language employed in Article
247 does not take away the jurisdiction of the State
legislature for constitution of courts. [Para 43] [1090-GH; 1091-A-B]
E
3.2. The purpose of Article 247, which commences
with a non-obstante clause, is to confer power on the
Parliament to create additional courts for the better
administration of a particular Union law, but it cannot be
said that the State cannot make laws for adjudication
F and administration ofjustice in respect of a parliamentary
legislation more so, when initially power was conferred
under Section 3 of the 1988 Act and assent has been
accorded for establishment of Special Courts for
adjudication of the offence. Section 3 of the 1988 Act
G empowers the State Government to constitute special
courts and when a category of offence has been
segregated and for the said purpose the Orissa Act has
been enacted and assent has been taken, the power to
constitute special courts cannot be found to be
H fallacious. [Paras 45 and 48] [1094-B-C; 1093-A-B]
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1041
4. The issue in the instant case is that the State. A
Government had no"t complied with the requisite
procedure for obtaining the as!;ent of the President. The
criticism advanced by the appellants is that in the letter
written by the State Government to the competent
authority for obtaining assent only certain provisions of B
the Orissa Act were mentioned but there is no reference
to other provisions and certain other legislations, which
also·cover the same field. However, on a perusal of the
aforesaid letter, it is demonstrable that the State
Government had sought assent of the President in · C
respect of certain provisions of the 1988 Act, the Code
of Criminal Procedure, 1973 and the Criminal Law
Amendment Ordinance, 1944. On a perusal of the
communication and the .finding recorded by the High
Court and keeping in view the purpose of D
communication and taking note of the fact that the entire
Bill was sent to the President for obtaining assent, it can
safely be concluded that the President was apprised of
the reason when the assent was sought. The assent has
been given in general terms so as to be effective for alt E
purposes. It cannot be said that the general assent by
the President was not obtained. Thus, the provisions of
the Orissa Act are definitely not repugnant to the 1988
Act, the Code of Criminal Procedure, 1973 and the
Criminal Law Amendment Ordinance, 1944. [Paras 59 and F
66] [1100-E-F; 1108-G; 1109-B·D]
5.1. It was argued that that the persons holding
"high public or political office" are being put in a different
class to face a trial in a different court under a different
procedure facing different consequences, which is G
arbitrary and further the provision suffers from serious
vagueness. However, the submission of the appellants
that the words "high public or political office" not being
defined, creates a dent in the provision, cannot be
A
1042
SUPREME COURT REPORTS
[2015] 14 S.C.R.
A .accepted. The said words convey a category of public
servants which is well understood and there is no room
for arbitrariness. [Paras 99, 110] [1129-0; 1137-G]
5.2. The holders of high post or high public office
do definitely enjoy a distinguished position in contrast
8 to other categories of officers or post holders. They form
a separate class. The legislature, regard being had to
the position the public servant holds, has put them in a
different class. There is a manifest reason that sustains
the said classification. The court cannot adopt an attitude
C to scrutinize a provision with mathematical exactitude.
A pedantic approach in this regard cannot be visualized.
[Para 114) [1141-E, G]
6.1. With regard to the classification made by the
D legislature in respect of the accused persons facing trial
under .Section 13(a) to (d) and the a.ccused persons
under Section 13(1 )(e), it is urged by the appellants that
there is no intelligible differentia for making such·a
classification qua the offence and moreover by adopting
E a rigorous procedure. However, the legislative policy
behind establishment of Special Courts for trial of
accused involved in the offence under Section 13(1)(e)
of the 1988 Act in respect of certain categories of accused
is absolutely impeccable and it is saved from the vice of
F Article 14 of the Constitution. The offences under Section
13(1) (a) to (d) in a broad way can be called incident
specific or situation specific whereas the offence under
Section 13(1)(e) is period specific and it is not incident
specific. There can be different check periods. [Paras
G 111, 114 and 123) [1137-H; 1149-E; 1141-C]
6.2. There is a difference, a demonstrable one,
between the offence under Section 13(1)(e) of the
Prevention of Corruption Act, 1988 and the rest of the
offences enumerated in Section 13. Section 13(1)(e)
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1043
targets the persons who have disproportionate assets A
to their known sources of income. This conceptually is
a period offence, for it is not incident specific as such. It
does not require proof of corruption in specific acts, but
has reference to assets accumulated and known sources
of income in a particular period. The test applicable and B
proof required is different. That apart, in the context of
the present Orissa Act it is associated with high public
office or with political office which are occupied by
people who control the essential dynamics of power
which can be a useful weapon to amass wealth adopting C
illegal means. In such a situation, the argument that they .
being put in a different class and tried in a separate
special court solely because the alleged offence, if
nothing else, is self-defeating one. The submission that
there is a sub-classification does not remotely touch the D
boundaries of Article 14; and certainly does not encroach 1
thereon to invite its wrath of the equality clause. [Para
120] [1147-D-G]
6.3. The controversy can be looked from another
angle. The special courts have been established on the E
basis of the law enacted by the State Legislature after
obtaining the presidential assent. The legislature has
spelt out a policy for the purpose of establishing the
Special Courts. It relates to an.offence of special kind.
The legislative policy behind establishment of Special F
Courts for trial of accused involved in the offence under
Section 13(1){e) of the 1988 Act in respect of certain
categories of accused is absolutely impeccable and it is
saved from the vice of Article 14 of the Constitution.
[Paras 121, 123] [1147-H; 1149-E]
G
7. The next submission advanced by the appellants
pertains to the issue that the corruption is an all India
phenomenon and persons in other States are
prosecuted under the 1988 Act, whereas in the State of H
1044
SUPREME COURT REPORTS
[2015] 14 S.C.R.
A Odisha, they are tried in a more rigorous manner. It is
submitted that the same brings in inequality which
causes discomfort to Article 14 of the Constitution.
However, Article 14 comes into play where equals are
treated as unequals. The persons holding high public
B or political office in the State of Odis ha are· governed by
the Orissa Act. The State legislature has passed the
Orissa Act having regard to the obtaining situation in the
State as the objects and reasons of the said Act do reflect.
The legislature in its wisdom has enacted the law. The
C persons who are functioning in certain other States may
be required to face trial under the 1988 Act, but on that
score there can be no violation of Article 14 of the
Constitution. The scale suggested, cannot be the scale
to judge. A legislation passed by one State legislature
D cannot be equated with the legislation passed by another
State legislature. Nor can its validity be tested on that
foundation. [Para 124] [1149-F-H; 1150-A·D]
8.1. Further, challenge was made relating to the
grievance which is fundamentally twin in nature. First,
E the appellants who were facing the trial before the Special
Judge under the 1988 Act, their cases being transferred,
are being compelled to be tried under the Orissa Act as
a consequence of which they are constrained to face
rigourism of confiscati.on as an interim punishment
F which was not in existence and second, the provisions
pertaining to confiscation cause double jeopardy. It is
urged that the provisions violate Article 14, 20(2) and 21
of the Constitution. Sections 13, 14, 15 and 16 of the
OrissaAct occur in Chapter Ill oftheOrissaActthatdeals
G with confiscation of property. In the case at hand, the
entire proceeding is meant to arrive at the conclusion
whether on the basis of the application preferred by the
Public Prosecutor and the material brought on record,
the whole or any other money or some of the property in
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1045
question have been acquired illegally and further any A
money or property or both have been acquired by the
means of the offence. After arriving at the said
conclusion, the· order of confiscation is passed. The
order of confiscation is subject to appeal under Section
17 of the Orissa Act. That apart, it is provided under B
Section 19 where an order of confiscation made under
·. Section 15 is modified or annulled by the High Court in
appeal or the where the person affected is acquitted by
the special court, the money or property or both shall be
returned to the person affected. Thus, it is basically a C
confiscation which is interim in nature. Therefore, itis
not a punishment as envisaged in law and -hence, it is
difficult to accept the submission that it is a pre-trial
punishment. Confiscation is not a punishment and,
therefore, Article 20(1) is not attracted. What is prohibited D
under Article 20(1) is imposition of greater punishment
that might have been imposed and prohibition of a
conviction of any person for violation of law at the time
of commission of the act. Confiscation being not a
· punishment does not come in either of the categories. E
Thus viewed, the property of an accused facing trial
under the 1988 Act could be attached and there can be
administration by third party of the said property and
eventual forfeiture after conviction. [Paras 126, 137, 138
and 142] [1151-C-E; 1168-G-H; 1169-A-B, E; 1173-F-G]
F
8.2. The legislature has thought it proper to change
the nature and character of the interim measure. The
property obtained by ill-gotten gains, if prima faciefound
to be such by the authorised officer, is to be confiscated.
An accused has no vested right as regards the interim G
measure. He is not protected by any constitutional right
to advance the plea that he cannot be made liable to face
confiscation proceedings of the property which has
been accumulated by illegal means. That being the litmus
H
1046
SUPREME COURT REPORTS
[2015] 14S.C.R.
A test, the filament of reasoning has to rest in favour of
confiscation and not against it. Therefore, the provision
does not violate any constitutional assurance. In view
of the scheme of the Orissa Act, there can be no shadow
of doubt that there is ample guidance in the procedure
B for confiscation. It is not a proceeding where on the basis
of launching of prosecution, the properties are
confiscated. Therefore, the proceedings relating to
confiscation cannot be regarded as violative of article
14 because conferment of unchecked power or lack of
C guidance. [Paras 143, 144) [1174-C-E; 1175-D]
8.3.As the scheme of the Orissa Special Courts Act,
2006 would show, the confiscation is interim in nature. It
does not assume the character of finality. Same is the
position in Bihar Special Courts Act, 2009. The accused
D is entitled to get return ofthe property or money in case
he succeeds in appeal before the High Court against the
order passed by the authorized officer or in the ultimate
eventuality when the order of acquittal is recorded. [Para
145] [1175-G-H; 1176-A]
E
9. The Authorised Officer is a judicial officer and he
is required to deal with material for the limited purpose
of confiscation. That apart, there is a statutory protection
that the material produced before the Authorised Officer
F shall not be used during trial. It is graphically clear that
the materials produced before the authorised officer are
not to be looked into during trial, and the trial is to proceed
in accordance with the Code of Criminal Procedure and
subject to the provisions of the 1988 act as long as there
G is no inconsistency. The trial Judge is a senior judicial
officer and has a trained judicial mind. If something is
not to be looked into, it shall by no means be looked
into. The constitutional protection under Article 20(3) is
in no way affected. [Para 151] [1175-E·G]
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 104 7
10. Under the scheme of the Orissa Act, the A
confiscation does not take place immediately on lodging
. of an FIR. The property is confiscated by way of an interim
measure by taking recourse to law which has been held
.to be constitutionally valid. A person cannot be allowed
to indulge in corruption and conceive of protection to B
his dwelling house after a finding is recorded in the
proceeding for confiscation that it is constructed or
purchased by way of corrupt means. The person
concerned can satisfy the authorised officer or in appeal
thatth.e dwelling house where he is residing is acquired C
from his known sources of income. [Para 155] [1183-FH; 1184-A, C]
11. It is to be remembered that the proceeding is.
initiated for confiscation in respect of the property
acquired by the offence as described under the Act. It is D
done on the basis of certain material brought on record.
Ultimately the proceedings may not be successful but if
it is not possible to return the property the State cannot
be asked to compensate more than what the legislature
has thought to be appropriate. It cannot be equated with E
acquisition. The entire proceeding is initiated regard
being had to the rampant corruption at high places in
the present day society. Therefore, the submissio~ that . ·
there has to be adequate compensation would be
against the larger public interest. Thus understood, the F
challenge to the provision on the backdrop of Article
300Ahas to be treated as unacceptable. [Para 158] [1187B-E]
12. Both the Orissa Special Courts Act, 2006 and G
the Bihar Special Courts Act, 2009 are almost similar and,
the analysis made by this Court as regards the Orissa
·Special Courts Act, 2006 will apply to the Bihar Special
Courts Act, 2009. [Para 159] [1187-F]
H
1048
SUPREME COURT REPORTS
[2015] 14 S.C.R.
A
13. However, Rule 12 of the Bihar Special Court
Rules, 2010 provides for Special Courts to follow
summary procedure. When the Bihar Act provides to
follow the warrant procedure prescribed by the Code for
trial of cases before a Magistrate, the 2010 Rules could
B not have prescribed for summary procedure. The rules
have to be in accord with the Act. The rules can
supplement the provisions of the Act but decidedly they
cannot supplant the same. Therefore, part of Rule 12
which lays down that the Special Judge shall follow
C summary procedure, is ultra vires the Bihar Special
Courts Act, 2009. [Paras 160, 161] [1187-H; 1188-D-E]
Special Reference No. 1of 1964 AIR 1965 SC
745: 1965 SCR 413-distinguished.
D
Mohd. Saeed Siddiqui v. State of Uttar Pradesh
and another (2014) 11 sec 415 - held,
applicable.
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E
(1980) Supp. sec 249 : 1980 SCR 500;
S. Satyapal Reddyv. Govt. of A.P & Ors. (1994)4
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Commissioner, Jabalpur & Ors. (1999) 1 SCC
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F
Union of India (2008) 5 SCC 1 : 2008 (8)
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G
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H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1049
Maharashtra (2013) 4 SCC 642 : 2013 (4)
A
SCR 767; Subramanian Swamy v. CBI (2014) 8
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B
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C
SCR 476; Hoechst Pharmaceuticals Ltd. &
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of Uttar Pradesh & Ors. (1959) Supp. 2 SCR 822;
Ch. Tika Ramji & Ors. v. The State of Uttar Pradesh
D
& Ors. (1956) SCR 393; Engineering Kamgar
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AIT Permit Owners Association and Another v.
State of M.P. (2004) 1 SCC 320: 2003 (6) Suppl.
E
SCR 331; Govt. of A.P. and Another v. J. B.
Educational Society and Another (2005) 3 SCC
212 : 2005 (2) SCR 302; Dharappa v. Bijapur
Coop. Milk Producers Societies Union Ltd. (2007)
9 SCC 109: 2007 (5) SCR 729; Sitaram & Bros.
F
v. State of Rajasthan 1995 (1) SCC 257: 1994
(4) Suppl. SCR 278; EID Parry(/) Ltd. v. G Omkar
Murthy and Others (2001) 4 SCC 68 : 2001 (2)
SCR 807; Saurashtra Oil Mills Assn. v. State of
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G
/magic Creative (P) Ltd. v. CCT (2008) 2 SCC
614: 2008 (1) SCR 457; Hindustan Times v. State
of U.P. (2003) 1 sec 591 : 2002 (4) Suppl. SCR
27; Kaiser-I-Hind (P) Ltd. v. National Textile
H
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[2015] 14 S.C.R.
A
Corpn. (Maharashtra North) Ltd. (2002) 8 SCC
182: 2002 (2) Suppl. SCR 555; P.N. Krishna Lal
v. Govt. of Kera/a 1995 Supp. (2) SCC 187: 1994
(5) Suppl. SCR 526; Gram Panchayat, Jamalpur
v.Malwinder Singh (1985) 3 SCC 661; Rajiv Sarin
B
and Another v. State of Uttarakhand and Others
(2011) 8 SCC 708; Supreme CourtAdvocates-onRecord Association arid Another v. Union
of India 2015 (11) SCALE 1; Sanjeev Coke
Manufacturing Company v. Mis Bharat Coking
C
Coal Limited andAnother19831SCC147: 1983
(1) SCR 1000; Reserve Bank oflndia v. Peerless
General Finance and Investment Co. Ltd. AIR
1987 SC 1023: 1987 (2) SCR 1; Union of India
v. Filip Tiago De Gama of Vedem Vasco De
D
Gama 1990 AIR 981 : 1989 (2) Suppl. SCR 336;
R.L. Arora v. State of Uttar Pradesh and Others
AIR 1964 SC 1230 : 1964 SCR 784; TATA
Engineering & Locomotive Co. Ltd. v. State of
Bihar and Another (2000) 5 SCC 346 : 2000 (3)
E
SCR 219; Union of India v. Sankalchand Himatlal
Sheth (1977) 4 sec 193 : 1978 (1) scR 423;
Maharaj Singh v. State of.UP. (1977) 1 SCC 155 :
1977 (1) SCR 1072; Shreya Singhal v. Union of
India (2015) 5 sec 1 : 2015 (5) SCR 963; OTC v.
F
Mazdoor Congress 1991 Supp (1) SCC 600 :
1990 (1) Suppl. SCR 142; Suresh Kumar
Koushalv. Naz Foundation (2014) 1SCC1 : 2013
(17) SCR 116; Calcutta Gujarati Education
Society v. Calcutta Municipal Corporation (2003)
G
10 SCC 533 : 2003 (i) Suppl. SCR 915; Hotel
Balaji and Others v. State of A.P. and Others 1993
Supp (4) sec 536: 1992 (2) Suppl. SCR 182;
J. K. Steel Ltd. v. Unionof/ndiaAIR 1970SC1173:
1969 SCR 481; P. Na/lama/ v. Inspector of Police
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR · 1051
(1999) 6 sec 559 : 1999 (1) Suppl. SCR 135;
A
Ram Krishna Dalmia v. Shri Justice S.R.
Tendolkar and others AIR 1958 SC 538 : 1959
SCR 279; Satyawati Sharma (Dead) by LRs. v.
Union of India and Another (2008) 5 SCC 287 :
2008 (6) SCR 566; Rehman Shagoo v. State of
B
Jammuand Kashmir AIR 1960SC1: 1960 SCR
680; C. I. Emden v. State of Uttar Pradesh AIR 1960
SC 548: 1960 SCR 592; Kedar Nath Bajoria v.
The State of West Bengal (1954) SCR 30; State
of West Bengal v. Anwar Ali Sarkar (1952) SCR
C
284; Kathi Raning Rawat v. The State of
Saurashtra (1952) SCR 435; J. Jaya Lalitha v.
Union of India (1999) 5SCC138: 1999 (3) SCR
653; Jyoti Pershad v. Administrator for the Union
Territory of Delhi AIR 1961 SC 1602 : 1962 SCR
D
125; The State of Madhya Pradesh v. G.C.
Mandawar AIR 1954 SC 493 : 1955 SCR 158;
Prabhakaran Nairv. State of Tamil Nadu & Others
AIR 1987 SC 2117 : 1988 (1) SCR 1; Maqbool
Hussain v. State of Bombay AIR 1953 SC 325:
E
1953 SCR 730; State of West Bengal v. S.K.
Ghosh 1963 (2) SCR 111; Divisional Forest
Officer and another v. G. II. Sudhakar Rao and
. others (1985) 4 SCC 573: 1985 (3) Suppl. SCR
680; Director of Enforcement v. M.C. T.M.
F
Corporation Pvt. Ltd and Others (1996) 2 SCC
471 : 1996 (1) SCR 215; Biswanath Bhattacharya
v. Union oflndia & others(2014) 4 SCC 392: 2014
(1) SCR 885; State of Andhra Pradesh and Others
v. CH Gandhi (2013) 5 sec 111 : 2013 (2)
G
SCR 20; Pyare Lal Sharma v. Managing Director
and others. (1989) 3 SCC 448 : 1989 (3) SCR
428; K. Satwant Singhv. State of Punjab AIR 1960
SC 266 : 1960 SCR 89; Maya Rani Punj v. CIT
H
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[2015] 14 S.C.R.
A
(1969) 1 SCC 445; Tiwari Kanhaiyalal v. CIT
(1975) 4 SCC 101 : 1975 (3) SCR 927; Kera/a
State Financial Enterprises Ltd. v. Official
Liquidator, High Court of Kera/a (2006) 10 SCC
709 : 2006 (6) Suppl. SCR 855; State of Himacha/
B
Pradesh v. Tarsem Singhand others AIR 2001 SC
3431 : 2001 (2) Suppl. seR 545; Sulochana
Chandrakant Galande v. Pune Municipal
Transport and others (2010) 8 sec 467 : 2010
(9) SCR 476; Dayal Singh v. State of Uttarancha/
c
(2012) 8 SCC 263 : 2012 (1 O) SCR 157; Rattiram
v. State of M.P. (2012) 4 SCC 516 : 2012 (3)
SCR 496; M.P. Sharma v. Satish Chandra AIR
1954 SC 300: 1954 SCR 1077 - referred to.
Case Law Reference
D
1993 (76) CLT 720
referred to
Para 14
1980 SCR 500
referred to
Para 14
(1994) 4 sec 391
referred to
Para 14
E 1998 (3) Suppl. SCR 198 referred to
Para 14
2008 (8) SCR 1
referred to
Para 14
1979 (3) SCR 254
referred to
Para 14
1983 (3) SeR 130
referred to
Para 14
F
1969 SCR 478
referred to
Para 14
1962 SCR 44
referred to
Para 14
2014 (9) SCR 965
referred to
Para 27
G 2013 (4) SCR 767
referred to
Para 28
2014 (6) SCR 873
referred to
Para 29
1965 seR 413
distinguished
Para 35
2007 (1) SCR 317
referred to
Para 36
H
YOGENDRAKUMARJAISWALETC. v. STATE OF BIHAR 1053
(2014) 11sec415
held applicable
Para 37
A
(2014) 10 sec 1
referred to
Para 41
1968 .SCR 709
referred to
Para 43
2005 (1) SCR 223
referred to
Para 43
1979 (2) SCR 476
referred to
Para 44
B
1983 (3) SCR 130
referred to
Para 50
(1959) Supp. 2 SCR 822 referred to
Para 50
(1956) SCR 393
referred to
Para 50
c
2004 (1) Suppl. SCR 301 referred to
Para 52
2003 (6) Suppl. SCR 331 referred to
Para 53
2005 (2) SCR 302
referred to
Para 54
2007 (5) SCR 729
referred to
Para 55
D
1994 (4) Suppl. SCR 278 referred to
Para 56
2001 (2) SCR 807
referred to
Para 57
2002 (1) SCR 1099
referred to
Para 57
..
E
2008 (1) SCR 457
referred to
Para 57
2002 (4) Suppl. SCR 27
referred to
Para 58
2002 (2) Suppl. SCR 555 referred to
Para 59
1994 (5) Suppl. SCR 526 referred to
Para 61
F
(1985) 3 sec 661
referred to
Para 62
(2011) 8 sec 108
referred to
Para 63
2015 (11) SCALE 1
referred to
Para 83
1983 (1) SCR 1000
referred to
Para 84
G
1987 (2) SCR 1
referred to
Para 86
1989 (2) Suppl. SCR 336 referred to
Para 87
1964 SCR 784
referred to
Para 88
H
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[2015] 14 S.C.R.
A
2000 (3) SCR 219
referred to
Para 89
1978 (1) SCR 423
referred to
Para 91
1977 (1) SCR 1072
referred to
Para.92
2015 (5) SCR 963
referred to
Para 93
B
1990 (1) Suppl. SCR 142 referred to
Para 94
2013 (17) SCR 116
referred to
Para 95
2003 (2) Suppl. SCR 915 referred to
Para 96
c 1992 (2) Suppl. SCR 182 referred to
Para 100
1969 SCR 481
referred to
Para 100
1999 (1) Suppl. SCR 135 referred to
Para 114
1959 SCR279
referred to
Para 115
D 2008 (6) SCR 566
referred to
Para 116
1960 SCR 680
referred to
Para 117
1960 SCR 592
referred to
Para 118
E (1954) SCR 30
referred to
Para 121
(1952) SCR 284
referred to
Para 121
(1952) SCR 435
referred to
Para 121
1999 (3) SCR 653
referred to
Para 122
F 1962 SCR 125
referred to
Para 122
1955 SCR 158
referred to
Para 124
1988 (1) SCR 1
referred to
Para 125
1953 SCR 730
referred to
Para 131
G 1963 (2) SCR 111
referred to
Para 132
1985 (3) Suppl. SCR 680 ·referred to
Para 134
1996 (1) SCR 215
referred to
Para 135
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1055
2014 (1) SCR 885
referred to
Para 136
2013 (2) SCR 20
referred to
Para 140
1989 (3) SCR 428
referred to
Para 140
1960 SCR 89
referred to
Para 140
(1969) 1 sec 445
referred to
Para 141
1975 (3) SCR 927
referred to
Para 141
2006 (6) Suppl. SCR 855 referred to
Para 142
2001 (2) Suppl. SCR 545 referred to
Para 146
2010 (9) SCR 476
referred to
Para 147
2012 (10) SCR 157
referred to
Para 148
2012 (3) SCR 496
referred to
Para 149
1954 SCR 1077
referred to
Para 151
CIVIL I CRIMINAL APPELLATE JURISDICTION: Civil
Appeal Nos. 6448-6452 of 2011.
A
B
c
D
From the Judgment and Order dated 23.02.2011 of the
High Court of Judicature at Patna in CWJC Nos. 10735, 10455,
E
10456, 10692 & 10983 of 2010
WITH
C. A. No. 6460 of 2011
Crl.A. Nos. 360-378, 385-386, 387, 388, 379-384, 389,
F
390, 1371 and 1372 of 2012
Crl.A. Nos.1678, 1679and 1680of2015 ..
Gaurav Agrawal, M. P. Jha, Harshvardhan Jha,
Ms. Yugandhra Jha, Rak Ekbal Roy, Vinoo Bhagat, Sibo G
Sankar Mishra, Anirudh, Mukul Kumar, Ajay Sharma, Anupam
Lal Das, Suchit Mohanty, Ashok Mathur, Prashant Shukla,
Pashupathi Nath Razdan,Advs. fortheAppelle),nt.
H
1056
A
B
SUPREME COURT REPORTS
[2015] 14 S.C.R.
Manish Kumar, Rashmi Srivastava, (For Gopal Singh),
Santosh Mishra, Param Mishra, Nishant Ramakantrao
Katneshwarkar, Shibashish Misra, Ms. Sakshi Kakkar, C. D.
Singh,Advs. for the Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Corruption, a 'noun' when assumes
all the characteristics of a 'verb', becomes self-infective and
also develops resistance to antibiotics. In such a situation
the disguised protagonist never puts a Hamletian question -
c "to be or not to be" - but marches ahead with perverted
proclivity- sans concern, sans care for collective interest,
and irrefragably without conscience. In a way, corruption
becomes a national economic terror. This social calamity
warrants a different control and hence, the legislature comes
0
up with special legislation with stringent provisions. The law
having been enacted, there is a challenge to the constitutionality
of the provisions. That is the subject matter of these appeals,
for the judgments rendered by the High Courts of Orissa
and Patna are under assail herein.
E
2. Leave granted in Special Leave Petition (Criminal)
No. 4558 of 2012, Special Leave Petition (Criminal) No. 3084
of 2013 and Special Leave Petition (Criminal) No. 3085 of
2013.
3. In this batch of appeals, by special leave, we are called
F
upon to deal with the legal substantiality 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
G (for brevity, "the Orissa Act") which has been assented to by
the President of India on 19.9.2007 and published in
Extraordinary Orissa Gazette on 15.10.2007; and the Bihar
Special Courts Act, 2009 (for short, "the Bihar Act"),
respectively. We are also required to consider the validity of
an aspect of Bihar Special Court Rules, 201 O (for short, "the
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1057
[DIPAK MISRA, J.]
201 O Rules"). May it be stated though the High Court has noted
A
the same and made certain observations yet has not
proceeded to deal with the validity of the Rule in question.
4. As the factual matrix in all the cases has a common
backdrop, we shall refer to the facts in brief. In all the cases,
8
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 1988Act on the allegation
that they were having property disproportionate to their known
C
sources of income. The grievance of appellants in these
·· appeals relate to the impact and effect of the legislations
brought during the pend ency of the proceedings. That apart,
the constitutional validity of the number of provisions of the
two enactments has been assailed on many a ground which 0
are not restricted to the pending trials alone.
5. At the outset, we may state that the provisions in both
the Acts are almost similar and, therefore, we shall dwell upon
the constitutionality of the Orissa Act first and in course of our
delineation, we shall refer to the Bihar Act wherever it is
E
necessary. Hence, we proceed to deal with the Orissa Act.
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
F
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 G
Section 27 of the Orissa Act framed a set of Rules, namely,
the Orissa Special Courts Rules, 2007 (for short "2007 Rules").
6. Before we dwell upon the submissions that were raised
before the High Court and how the High Court has dealt with
H
1058
SUPREME COURT REPORTS
[2015] 14 S.C.R.
A
them, we think it appropriate to understand the scheme of the
Orissa Act. Section 2(a) of the Orissa Act defines "authorised
officer" which means any serving officer belonging to Orissa
Superior Judicial Service (Senior Branch) and who is or has
been an Additional Sessions Judge, nominated by the State
B Government with the concurrence of the High Court for the
purpose of Section 13. Section 2(c) defines "declaration" in
relation to an offence and it means a declaration made under
Section 5 in respect of such offences. The term "offence" has
been defined under Section 2(d) which means an offence of
C criminal misconduct within the meaning of clause (e) of subsection (1) of section 13 of the 1988 Act.As per dictionary
clause, Section 2(e) specifies "Special Court" which means a ·
Special Court would be one as provided under Section 3 of
the Orissa Act. Section 2(f) provides that words and
D expressions used herein and not defined but defined in the
Code shall have the same meanings respectively assigned to
them in the Code.
7. Section 3 of the Orissa Act deals with establishment
of Special Courts. Section 4 enables the Special Court to
E take cognizance and try such cases as are instituted before it
or transferred to it under Section 10. Section 7 deals with the
jurisdiction of Special Courts as to trial of offences. It lays down
that Special Court shall have jurisdiction to try any person
alleged to have committed the offence in respect of which a
F declaration has been made under Section 5, either as the
principal, or as a conspirator or abettor and for all the other
offences, and the accused persons can jointly be tried therewith
at one trial in accordance With the Code of Criminal Procedure,
1973 ("the Code" for short). Section 8 deals with the procedure
G and powers of the Special Courts. Sub-section (2) of Section
8 lays the postulate that save as expressly provided in the Act,
the provisions of the Code and of the 1988Actshall, in so far
as they are not inconsistent with the provisions of the Orissa
Act, apply to the proceedings before a Special Court and for
H
YOGENDRA KUMAR JAISWAL ETC. v. STATE OF BIHAR 1059
[DIPAK MISRA, J.]
the purpose of the said provisions, the person conducting a A
prosecution before a special court shall be deemed to be a
Public Prosecutor. Section 9 provides for an appeal to the High
Court of Orissa from any judgment and sentence. Section 10
confers the power on the High Court of Orissa to transfer cases
from one Special Court to another. Section 11 ( 1) expressing
B
the legislative command lays down that the special courts shall
not adjourn any trial for any purpose unless such adjournment
is, in its opinion, necessary in the interest of justice and for
reasons to be recorded in writing and sub-Section (2) of said
Section provides that the Special Court shall endeavour to
C
dispose of the trial of the case within a period of one year from
the date of its institution or transfer, as the case may be. Section
12 enables the Special Judge presiding over a Special Court
on the evidence recorded by his predecessor or predecessors
or partly recorded by his predecessor or predecessors and
D
partly recorded by himself. Section 13 provides for filing of
application for confiscation before the Authorised Officer. If
empowers the State Government to authorise the Public
Prosecutor to make an application and also stipulates what
the application shall accompany.
E
8. Section 14 provides for issuance of show cause notice
by the Authorised Officer to the person concerned to explain
his source of income and other assets and why such money or
property or both should not be declared to have been acquired
by means of the offence and be confiscated to the State
F
Government. Sub-section (2) provides that where a notice
under sub-section (1) to any person specifies any money or
property or both has been held on behalf of such person by
any other person, a copy of the notice shall also be served
upon such other person. Sub-section (3) lays down that the G
evidence, information or particulars brought on record before
the authorised officer shall not be used against the accused in
the trial before the special court. Section 15 deals with the
confiscation of property in certain cases.