MANOJ MANKAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioners and learned counsel for the Vigilance. This application has been filed for quashing the order dated 5.8.2013 passed -in Special Case No. 7 of 2012 by the Additional Sessions Judge-X, Patna the Authorized Officer under Bihar Special Courts Act, 2009 (hereinafter referred to as "the Act") by which the point raised by the petitioners that the application has not been filed in a proper way and in proper manner but de hors to the Act or Rule framed under the Act.

(2.) It appears from the record that Special Case No. 7 of 2012 has been instituted on the basis of an application made under the signatures of Special Public Prosecutor and Inspector of Police, Vigilance. It has been stated that First Information Report vide Vigilance P.S. Case No. 77 of 2009 was instituted under Sections 7, 8, 13(2) read with 13(1)(d)(C) and (e) of the Prevention of Corruption Act, 1988 against petitioner No. 1. Allegation has been made that petitioner No. 1 has acquired properties beyond the known source of income and simultaneously an application vide Special Case No. 7 of 2012 has been filed under Act where Manoj Mankar and others have been made opposite parties showing, the properties standing in the name of the family members are properties earned and acquired by Manoj Mankar through illegal manner and means, for giving a cover different properties have been shown in the name of different members of family claiming to be earned by respective family members.

(3.) This Court is not required to deal with the matter on merit. In pursuance of institution of case, notices were issued to the petitioners, they appeared before the court and raised the objection that the application which has been filed by a person not authorised under the Act or Rule framed thereunder and as such the application is completely not sustainable and maintainable in law. As per terms of Section 13(1) of the Act Special Public Prosecutor has been appointed on the advice of the Advocate General is only authorized to institute and conduct the case. Here the case has not been instituted by the Special Public Prosecutor as has been appointed by the State Government rather an application has been filed by the Inspector of Police of Vigilance Department which is not permissible in law. Further point has been raised, notices as per Sections 14(1) and 14(2) of the Act have not been issued to the delinquent and other persons rather notices have been issued in Form-II. It has been submitted that Confiscating Act is penal act and is onerous one required strict construction of provision and any deviation made in filing the application, should be treated to non-filing of the case on the principle when an act is to be done in particular manner that act should be done in that manner alone. It has further been submitted that Section 13(1) and (2) of the Act provides a particular mode of filing of the application and that application should be filed in manner prescribed under those provisions. It has further been submitted that the application has not been filed in the manner as provided under Section 13(1) and (2) of the Act as affidavit attached to petition has not been sworn by authorised person and as such filing of the case and subsequent initiation of proceeding is non est and it requires declaration as void. He further submits Inspector of Police, Vigilance signed the application, though every page of the petition bears initial of Special Public Prosecutor will not be treated the application has been filed as manner prescribed, whereas it is required to be signed by the Special Public Prosecutor alone. He has further submitted that mere putting the signature and giving initial will not give an inference, that petition has been filed by the Special Public Prosecutor. In support of his contention he has relied on the following judgments:--