L H HANUMANTHAPPA Vs. STATE

JUDGEMENT

(1.) THE present appeal is preferred under Section 11 of the Criminal Law Amendment Ordinance, 1944 (for short, 'Ordinance, 1944'), seeking remedy of setting aside the order dated 12.04.2012 passed by the learned Principal Sessions Judge, Raichur, in Special FIR No.5/2009.

(2.) THE short question that has been raised before me is that, - Whether the court can pass an order under Section 3 or 4 of the Ordinance, 1944, attaching the property of the kith and kin of the accused without providing any opportunity to them?.

(3.) IN order to answer the above said question, it is just and necessary to note here the brief factual matrix or this case, which is as under: It is an undisputed fact that the case has been registered against the appellant herein by the Lokayuktha Police under Section 13(1)(e) r/w, Section 13(2) of the Prevention of Corruption Act, 1988 ( for short, 'the P.C. Act'). During the course of investigation, the Lokayuktha Police have found that some of the properties are in the name of the wife and children of the appellant. They have given the description of such properties in the list annexed to the application filed by them seeking attachment of those properties during the pendency of the investigation. The said list of properties is also produced before this court vide Annexure -D. There are as many as 17 properties, which were sought to be attached. The learned Sessions Judge has heard the arguments advanced by the learned counsel appearing for the accused as well as the prosecution agency and passed an order attaching all the properties, pending disposal of the investigation. As could be seen from the provisions under the Ordinance, 1944, there is no dispute with regard to the powers of the Court to attach the properties even during the pendency of investigation. Section 3 of the Ordinance, 1944 empowers the prosecuting agency to file an application for attachment of the property. Section -4 of the Ordinance, 1944 empowers the court to pass an adinterim order of attachment, pending disposal of the investigation or pending disposal of the case. However, if Section -4 of the said Ordinance is read in a proper perspective, it discloses that the District Judge may, if he thinks fit, before passing such an order of attachment, attaching the property either in the name of the accused or in the name of any other person or refusing to pass orders, examine such person or persons making affidavit accompanying the application. Sub -section (2) of Section 4 again puts a rider on the judge that, if he passes any ad -interim order of attachment, at the same time, he has to issue notice to the person whose money or other property is being attached, a notice, accompanied by copies of the order, the application and affidavits and of the evidence, if any, recorded, calling upon to show as to why such interim order should not be made absolute.