N K BANERJI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal has been filed by N.K. Banerji, one of the accused in the Mahua Danr defalcation case, against the order of Shri S.N. Banerji, District Judge of Palamaui dated 27 -5 -64, passed in M. J. C. 21 of 1969, which arose on an application filed by the State of Bihar under Section 3 of the Criminal Law Amendment Ordinance No. 38 of 1944 (hereinafter referred to as the 'Ordinance') for the attachment of certain moveable and immoveable properties belonging to the said accused. The Court below on that application of the State of Bihar passed an ad -interim attachment. "When notice was served upon the appellant he filed two objection petitions dated 8 -4 -59 and 7.11.1962 contending inter -alia that nose of the properties which were subjected to the ad interim attachment had been acquired by him at any time during or after the dates when the offences were alleged to have been committed and some of the properties belonged to his wife and not to him. On the 2nd May, 1964, he filed a third objection petition raising further objections regarding the validity of attachment. Learned Court below after considering the objections and hearing both the parties rejected all the objections of the appellant and confirmed the attachment by the said order dated 27 -5 -64. Hence this appeal.

(2.) LEARNED Counsel appearing on behalf of the appellant argued that the properties attached had act been acquired by the appellant at any time during or after the dates when the offences were alleged to have been committed by him and, therefore, those properties could not have been acquired out of the defalcated sum. According to him, Section 3 of the Ordinance applies only in those cases where the properties are acquired out of the defalcated sum. In my opinion, this contention of learned counsel cannot be accepted. Section 3 of the Ordinance reads as follows :

(3.) THEREFORE , the main question which arises in this case is whether the provisions contained in clause (a) of the aforesaid section is mandatory or directory. The learned Advocate -General appearing on behalf of the State of Bihar, the respondent, has urged that all the accused including the appellant, have already been convicted and sentenced to -imprisonment and heavy fines have also been imposed upon them and further their convictions and sentences have already been upheld by this Court in Criminal Appeals Nos. 386, 406, 392, 376 and 398 of 1964 and G. A. No. 83 of 1964 D/ -24.3.1967 (Pat). Therefore, apart from the provisions contained in the Ordinance, their properties are open to attachment by the provisions contained in the Procedure Code to enable the State Government to realise fines imposed upon them. That being so even if it is held that the attachment was invalid no relief will be available to the appellant. Therefore, according to him, in the circumstances of this case no finding is required by this Court as to whether the attachment was valid or not. In my opinion, since in this case this point was argued at great length by the appellant's counsel and since there is no other decision on this point, I think it is necessary to decide whether the provisions contained in clause (a) of the aforesaid section is mandatory or directory. In Article 656 of Halebury's Laws of England, Third Edition, Volume 36, at pages 434 and 435 it is stated :