STATE OF MAHARASHTRA Vs. TRAMBAK ANANDA MAHAJAN

JUDGEMENT

(1.) This Appeal raises a question in regard to the interpretation of Clause 10 of the Criminal Law (Amendment) Ordinance, 1944 and the same arises on the following facts of the present case. The respondent No. 1 who was serving as a Deputy Engineer, E.G.S. Sub-Division, Dhadgaon, Dist. Dhule, is alleged to have acquired properties and estates disproportionate to his known sources of income. As a prosecution under section 5(1)(c) read with section 5(2) of the Prevention of Corruption Act was in contemplation, the Appellant the State of Maharashtra on the 10th of September, 1984 obtained an order of authorisation under Clause 3 of the said Ordinance and filed on the 5th November, 1984 Criminal Miscellaneous Application No. 615 of 1984 for an order of attachment of the properties of the respondent No. 1 and obtained on the 7th of November, 1984 an order of ad interim attachment under Clause 4 of that Ordinance. As no cognizance of the offence in question came to be taken and no application for continuing the said order of attachments came to be filed, the trial Court, after hearing the parties, by its order dated the 6th of May, 1985 dismissed the Appellants Criminal Misc. Application No. 615 of 1984 and vacated the order of interim attachment. On the 5th June, 1985 the Appellant filed its second Application being Criminal Miscellaneous Application No. 220 of 1985 for a fresh order of attachment. This it did without obtaining a fresh authorisation under Clause 3. In this Application the Respondents Nos. 2 to 12 were impleaded on the allegation that the Respondent No. 1 had transferred his estate to them. By the impugned order dated the 29th October, 1985 that Application came to be rejected on the ground that the same was not maintainable on account of want of a fresh authorisation and also on the ground that the chargesheet had not been filed although a period of 23 months had elapsed since the offence had been registered. Aggrieved by the said order the Appellant-the State has preferred the present Appeal.

(2.) Shri Vyas, the learned Assistant Public Prosecutor, submitted that the trial Court has misconstrued the provisions of Clause 10 and has thereby erred in dismissing the second application for attachment. According to him there was no need to obtain a fresh authorisation for filing the second Application for attachment as the earlier authorisation obtained on the 10th September, 1984 enured to the benefit of the Appellant even for the purpose of filling the second Application. He further contended that the provisions contained in Clause 10 were not mandatory but merely directory and hence the second Application though not filed within the period of three months from the date of the order of ad interim attachment, the same was still maintainable and hence the trial Court ought to have granted the second Application and ordered the attachment of the properties of the respondent No. 1 as prayed for. In order to appreciate the contentions of Shri Vyas it, may be convenient to reproduce Clause 10 :---

(3.) Shri Vyas, however, relied upon a decision of the Patna High Court in the case of (N.K. Banerji v. State of Bihar) reported in 1969 Cri.L.J. page 1178 and contended that the period of three months provided in the said Clause 10 was not a mandatory requirement and an order of attachment could well be passed even on an application filed beyond the period of three months. It has been held in the said case per B.D. Singh, J. :---