LAWS(ORI)-1991-6-14

KHETRABASI DAS Vs. STATE

Decided On June 17, 1991
KHETRABASI DAS Appellant
V/S
STATE Respondents

JUDGEMENT

(1.) The short question that arises for consideration in this revision is whether when an application is made u/Ss. 3 and 4 of the Criminal Law Amendment Ordinance of 1944 (for brief 'the Ordinance') for attachment of the property of a person, the person making the application must be specifically authorised by the competent authority to sign and verify the application. The brief facts are that an application was made before the Sessions Judge, Cuttack for attachment of the properties of the petitioner under the provisions of the Ordinance. An objection having been taken by the wife of the petitioner of inter alia the provisions of O.27 R. 1, CPC having not been complied with and that Shri B. B.Mohapatra who had filed the application had not been authorised in terms of S. 3 of the Ordinance by the State Government to file the same, a petition was filed by the public prosecutor to allow Shri B. B. Mohapatra who had been authorised by the State Government to file the application to sign each page of the petition and verify the same. Another petition was also filed by the public prosecutor for amendment by adding a para to the original application that Shri B. B. Mohapatra had been authorised by Government to file the application and that he was acquainted with the facts of the case. Along with the application a copy of the authorisation letter in favour of Shri B. B. Mohapatra issued by the Commissioner-cum-Secretary, Revenue and Excise Department, in exercise of powers u/S.3 of the Ordinance was also annexed. The learned Sessions Judge held the signing and verification of the application to be a procedural matter and allowed the amendment as well as the other petition and directed Shri B. B. Mohapatra to sign the application and verify the same. It is such order which is in challenge here. The petitioner also prays for quashing of the criminal proceeding against him.

(2.) Mr. Mohapatra, learned counsel appearing for the petitioner, has urged that the authorization that was produced from the Commissioner-cum-Secretary to Govt. was not one which authorised the signing and verification of the application as was required under Order 27 Rule 1, CPC and hence Shri B. B. Mohapatra had no authority to either sign or verify the application. In such premises it is contended by him that the learned Sessions Judge fell into error in not appreciating total lack of competence Shri B. B. Mohapatra to sign and verify the application and that the question was not of a mere amendment but was of a defect which went to the very root of the authority to present the application.

(3.) For an appreciation of the contentions raised, the provisions of S. 3(1) and (2) of the Ordinance are necessary to be extracted : "3. Application for Attachment of Property.