SANJAY KUMAR 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 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 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.) Before adverting to impugned features of the Act, the various grounds of challenge to their constitutionality and the submissions of the parties, it would be appropriate to notice that the Act of 1988 was enacted by the Parliament with the object to consolidate and amend the law relating to the Prevention of Corruption and the matters connected therewith. That Act contains detailed provisions including definitions and is still operational and has not been repealed. Section 4 (4) of that Act contains a mandate that a Special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis. In that Act there is no provision like Section 11 of the Act which provides that a Special Court shall not adjourn any trial for any purpose unless the adjournment is necessary in the interest of justice for which reasons should be recorded in writing. The Special Court is also required to make endeavour to dispose of the trial within a period of one year from the date of its institution or transfer, as the case may be. In the Act of 1988 there is no provision for confiscation of property which is now provided under the Act as per provisions of Section 13 to 19 contained in Chapter-III.