YOGENDRA KUMAR JAISWAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) ALL the eight writ petitions have been heard together as analogous matters because they contain common prayers questioning the constitutional validity of Bihar Special Courts Act, 2009 (hereinafter referred to as the Act) and in particular the 4 validity of Section 5, 13, 14, 15 and 18 of the said Act. The petitioners have also challenged declarations issued on various dates in respect of individual petitioners in terms of Section 5(1) of the Act, as a result whereof cases lodged by Vigilance Department of the State Government against the petitioners for various offences including offence under Section 13 (1) (e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act of 1988) shall be tried by Special Court established under Section 3 of the Act. In the context of effect of Section 6 (2) of the Act on pending cases, the validity of this provision has also been seriously challenged on the ground that the Act cannot be made retrospective because it will expose the petitioners to a greater penalty than what is envisaged under the Act of 1988, which would violate Article 20 (1) of the Constitution of India. The other provisions particularly those under Section 5 and Section 13 have been challenged mainly on the ground of excessive and unbridled delegation and violation of Article 14 of the Constitution of India.

(2.) THERE is no need in these cases to go into details of facts because there is no dispute that the petitioners are/were public servants and are facing criminal cases lodged by the Vigilance Department, Government of Bihar for various offences including offence under the Act of 1988, particularly Section 13 (1) (e), on the allegation of having pecuniary resources or property disproportionate to their known source of 5 income. If the Act had not been enacted or if it is declared ultra vires then the petitioners will be tried by Special Judge appointed under the Act of 1988. Petitioners are aggrieved mainly because the cases against them shall be tried by Special Courts under the Act which may expose them to a proceeding for Confiscation under Section 13 and other provisions in Chapter III of the Act.

(3.) AS noticed earlier the grievance of the petitioners is mainly against such provisions of the Act and declaration made under Section-5 which brings the petitioners cases under the purview of the Act to be tried by the Special Judge and exposes them to the risk of confiscation proceeding. A faint submission was made at the initial stage of the arguments that the State Legislature does not have legislative competence because the Parliament has already enacted the Act of 1988 which contains in a consolidated form law relating to the Prevention of Corruption and the matters connected therewith. However, this argument was based upon an erroneous impression that the prior assent of the President has not been obtained for enactment of the Act. Once it was shown from the relevant gazette Notification dated 8th February 2010 that such assent is available, this ground to challenge the vires of the Act was not pressed. However, an attempt was made to demonstrate that the purpose of the Act was already taken care of by the provision in Section 4 (4) of the Act of 1988 that the Special Judge shall, as far as practicable, hold the trial of offence on day-to-day basis. According to learned 11 counsel for the petitioners this provision was sufficient to take care of expeditious disposal of trials for offence defined under the Act. So far as the confiscation of property is concerned, it was submitted that under the Code of Criminal Procedure, there are sufficient provisions such as provision for compensation under Section 357 and provision for disposal of property at conclusion of trial under Section 452 and hence there was no real need to enact the Act for either of the aforesaid two purposes. However, the petitioners could not show that the provisions meant to expedite disposal or for confiscation were exactly of similar nature. The provisions for expeditious disposal and confiscation in the Act are visibly and clearly different than those existing from before. To question their utility or good effect would amount to questioning the wisdom of the Legislature which is clearly impermissible. Hence, such submissions are found to be of no significance and do not affect the validity and constitutionality of the Act or the impugned provisions.