STATE OF MAHARASHTRA Vs. LAXMAN RAMJI BADE

JUDGEMENT

(1.) In 1973 the respondent was a Sub-Inspector of Police attached to the Yellowgate Police-Station, Bombay. On July 26, 1973 the respondent's residence at fiat No. 11, 3rd floor, Amar Bhuvan, French Bridge, Bombay, was searched and several papers and documents taken charge of therefrom. Thereafter other premises with which the respondent was connected were also searched and further papers and documents taken charge of.

(2.) On July 27, 1973 an offence was registered against the respondent, being Crime Register No. 17 of 1973, under sub-section (2) of section 5 of the Prevention of Corruption Act, 1947, for having committed criminal misconduct as described in clause (e) of subsection (1) of section 5 of the said Act, that is, either by himself or by any person on his behalf being in possession, or having at any time during the period of his office been in possession, of pecuniary resources or property disproportionate to his known sources of income for which the public servant cannot satisfactorily account. On Nov. 2, 1974 an application was made to the Chief Judge of the Court of Small Causes, Bombay, under section 3 of the Criminal Law Amendment Ordinance, 1944 (Ordinance No. XXXVIII of 1944), for attachment of 14 items of properties listed in the said application. These properties consisted of a fixed deposit in the Bank of Maharashtra, Girgaon Branch, Bombay, in the name of New Salooni Haircutting Saloon, Goregaon (West) Greater Bombay, in the sum of Rs. 70,000, a saving bank account in the respondent's name in the said bank in which the balance was Rs. 315.25 P., chit funds contributions aggregating to Rs 1,44,000 and two haircutting saloons, namely, the said New Salooni Haircutting Saloon and General Hair cutting Saloon situate at Mint Road, Fort, Bombay. In the said application it was alleged that all the said assets and properties were procured by the respondent b) corrupt and illegal means, namely, by commission of an offence punishable under section 5 (2) of the said Act. On this application being made to him, the learned Chief Judge on the same day passed an order granting an ad interim attachment and directed notice of the said application to be given to the respondent. The said application for attachment was supported by an affidavit affirmed on the same day by Vijaysingh R. Sawant, an Assistant Inspector of Police attached to the Anti-Corruption and Prohibition Intelligence Bureau, Greater Bombay. On service of the said notice the respondent filed an affidavit in reply affirmed on Feb. 17, 1975. In this affidavit the respondent stated that his father was a man of substance and wealth who owned large plots of agricultural land and immovable properties and that he was the only son of his father and that his father was also carrying on money-lending business and that as the only son on his father's death he inherited all his father's properties and assets. He further stated that several persons used to deposit moneys with him for investing in chit funds. He annexed to his said affidavit a list of these persons and the deposits made by them. The respondent contended in the said affidavit that all these properties and assets were honestly acquired by him either by inheritance or by further investments of moneys inherited by him. The respondent also filed three other affidavits in support of his case, namely, the affidavits of Ramnath Dhanaji Nakade, Eknath Tabaji Dhakane and Bhagwan Raghoji Dhakane. In rejoinder to these affidavits and affidavit affirmed on Feb. 6, 1976 was filed by one Madhukar Shrirang Parulekar, an Assistant Inspector of Police, in which very much the same contentions as were taken in the said application for attachment were repeated. On March 25, 1977 the respondent made an application to the learned Chief Judge stating that both the parties in their respective affidavits had relied upon several documents and papers, but neither side had annexed copies of' these documents to their respective affidavits nor had produced them in Court. He then reproduced in his said application sub-section (2) of section 5 of the said -Ordinance and prayed that he should be allowed to lead oral and documentary evidence in the attachment proceedings. One would have thought that the State, which was the prosecutor, in a case where it had not even been able to file a charge-sheet for four years would have welcomed the accused stepping into the witness-box and calling his witnesses and exposing himself and his witnesses to cross-examination, but for reasons, the logic of which I am unable to understand, it thought it fit to oppose the said application. This it did by filing an affidavit of the said Parulekar affirmed on July 15, 1977. It is pertinent to note that even at this stage no charge-sheet had been filed before the Criminal Court. In the said affidavit in reply filed by the said Parulekar the main emphasis was placed upon the fact that sanction had been given for the prosecution of the respondent, and time and again in one paragraph after another it was repeated that the Government of Maharashtra after due consideration and examination believed to their entire satisfaction that the respondent had committed the said offence and had sanctioned his prosecution and attachment of' the properties in question. It was further contended in the said affidavit that the respondent's said application should not be granted but the notice should be made absolute only on the affidavits on the record. The learned Chief Judge by his order dated July 29, 1977, which is impugned before me, permitted the respondent to produce oral and documentary evidence in support of his case. I may mention at this stage that the charge-sheet was filed before the Criminal Court about a year and three months after the passing of the said order, namely on Oct. 13, 1978, and the case was registered as Criminal Case No. 45 of 1978.

(3.) At the hearing of this Civil Revision Application it was submitted on behalf of the State that in view of the provisions of the said Ordinance an accused in attachment proceedings under the said Ordinance has no right to lead any evidence or to contend that he has not committed the offence with which he is charged. It was further submitted that to permit him to do so would be to allow two trials to go on at the same time and would greatly prejudice the prosecution in establishing its case before the Criminal Court. Realizing that an argument so extreme was fallacious, the earlier submission was later diluted, and it was contended that the accused in showing cause against an application for attachment can only lead evidence to the extent that the property alleged to be the subject-matter of the offence belonged to him and that he has interest in the property and that it was not procured by means of the offence charged. This argument is as difficult to understand as was the earlier argument, as will be seen when we examine the provisions of the said Ordinance. The Schedule to the said Ordinance lists six offences. By reason of sub-section (1) of section 2 each of these offences is called a "scheduled offence". Entry No. 4A in the said Schedule refers to an offence punishable under section 5 of the said Act. This entry was inserted by Act Na. XL of 1964. Sec. 3 of the said Ordinance deals with applications for attachment of property. Sub sections (1) anti' (3) of section 3 are as follows: