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P.K. Sethuraman, J.—Crl. M.P No. 2381 of 1988 is a petition filed under S. 482 Code of Criminal Procedure praying for a direction for the delivery of the title deeds mentioned in the petition relating to the attachment order made in O.P. No. 56 of 1976 on the file of the District Judge, Chengalpattu, and Crl. M.P. No. 2382 of 1988 is another petition filed under S. 482 Code of Criminal Procedure to raise the attachment order passed in O.P. No. 56 of 1976, dated 11.7.1978 on the file of the District Judge, Chengalpattu.
The petitioner is A-46 in C.C. No. 20 of 1974 and the case is what is known as Madras Corporation Muster Rolls case. The petitioner was employed in the Corporation of Madras from June 1945 till November, 1973 and he was the manager, ''J'' Section. Central Accounts Department (CAD), when he was suspended from service on 13.1.1973 on the allegation that there was some fraud committed in the preparation and passing of Muster Rolls relating to the Electrical Department. The case was reported by the Commissioner of Madras Corporation and several persons were prosecuted after the chargesheet was laid in the case.
According to the petitioner, he was arrested by the police on 7.12.1973 and during the investigation his house was searched and the following items of properties were seized;--
(1) Documents relating to house No. 10, Bakthavatchalam Street, Tambaram West (sale deed Document No. 718/1948 and 1415/64, dated 30.5.1964).
(2) Documents relating to plot No. 6, Parameswari Nagar, Adyar (Document No. 52/72, dated 13.1.1972);
(3) Document relating to purchase of wet lands-2.88 acres in Pazhaya Thandalam Village (Document No. 824/73, dated 24. 3.73);
(4) Share of his wife as a partner in the cinema theatre Vigneswara at Poonamalle.
(5) Jewellery:
(a) 4 pair of gold bangles weighing 80.400 gms.
(b) Two-rows gold chain, one weighing 31.750 gms.
(c) One gold chain weighing 30.800 gms.
(d) One gold chain with dollar, weighing 17.100 grams
(6) Cash Rs. 26,561.26 which includes the fore closure of deposits and a cash of Rs. 2,700/- paid by his sister-in-law at Adayar, as per his instructions, according to the directions of the police.
Further the police officials also went to the petitioner''s brother''s house at Adayar, on 8.4. N78 and also received a cash of Rs. 2,700/- and according to the petitioner among the fixed deposits recovered by the police, three deposits amounting to Rs. l5,000/- were in the name of his younger brother P.M. Sundaram, his wife Mrs. P.M. Vanaja Sundaram and his son P.M. Vijayaraghavan. Those deposits were also foreclosed and a sum of Rs. 26,561.86 were seized and sent to Court.
The petitioner was one of the accused convicted and sentenced to under: o four years and the petitioner has filed the criminal appeal No. 850 of 1973 which is pending in the High Court. Other accused have also filed appeals and all the appeals are pending. During the stage of investigation in April 1976 the prosecution filed the application for attachment of the properties and final orders were passed on 11th July, 1978 to the effect that attachment to continue for three months pending orders in C.C. No. 20 of 1974 on the file of the Third Additional Spl. judge, Madras. Durins the year 1978 the petitioner filed Crl. M.P. No. 2513 of 197X praying for the release of the jewels mentioned in petition vir., (1) 4 pairs of gold bangles: (2) a gold chain (2 vadams): (3)and another gold chain and (4) minor, petuiouci should deposit Rs 5,000 in cash in the Court of v. Additional Special Judge, Madras, to the credit of C.C. No. 20 of 1974 and also to execute a bond for Rs. 2,000 undertaking to produce the jewels whenever required.
But according to the petitioner he could not deposit Rs. 5.000 in cash as ordered and he did not take back the jewels.
According to the petitioner after the judgment was delivered in C.C. No. 20 of 1974 in November, 1978, the Respondent filed another chargesheet against the petitioner and others for an offence punishable under S.5(1)(d) read with S. 15(2) of the Prevention of Corruption Act and it is pending before the IV Additional Special Judge, Madras. In C.C. No. 20 of 1974 the trial Judge ultimately held that the total amount covered by bogus Muster Rolls was Rs. 9.54 lakhs and the petitioner was held to have dishonestly induced the Corporation of Madras to part with a sum of Rs. 80,395. 80. For the purpose of S.12 of the Criminal Law Amendment Act, the trial Court has given the finding that the illegal sum paid by Kannappan, Approver No. l, to all the accused is Rs. 38,56,577. 75 which included the sum of Rs. 2.20 lakhs alleged to have been paid to the petitioner from July 1972 to June 1973. The said finding also is being questioned by the petitioner. Even if the said finding is to be accepted the prosecution cannot recover from the petitioner more than Rs. 2.20 lakhs or keep under attachment more properties than those required for the realisation of the amount of Rs. 2.20 lakhs.
According to the petitioner the following items of properties fell to his share as per the partition of joint family properties in the year 1956:
(1) Site and house No. 10, Bakthavatsalam Street. West Tambaram; (the relevant period from 1916 to 1948 and long prior to 1st april 1918);
(2) Deposit was made by the petition upto April, 1st April 1972 of a sum of Rs. 3,00 in the United Commercial Bank, T. Nagar, on 14th December, 1971;
(3) The jewels recovered belong to his wife which were presented to her by her father at the time of marriage in 1948.
The properties acquired prior to July 1972 cannot be attached.
The petitioner purchased a plot in Adayar on 13th January, 1972 for Rs. 17,870 including registration charges and put up a building therein subsequently a; a cost of not exceeding Rs. 35,000 by raising a loan of Rs. 20,000 from one C. Nagabhushanam of the petitioner''s village and from out of his earnings and from his ancestral lands. That item of property also is more that sufficient for realisation of Rs. 2.20 lakhs even if the judgment of the trial Court is confirmed by the High Court.
The petitioner purchased a land of 2.88 acres from one Vedavalli in the name of his wife on 24th March 1973 for Rs. 9,000 out of the income from the lands that fell to his share in the partition of family properties. Hence it is not necessary to retain the attachment of the said property. The cash of Rs. 26,561. 26 is in Court deposit. It is not necessary to retain the said amount also.
The petitioner has to celebrate the marriage of his two daughters by taking loans and selling the properties. The petitioner has exhausted all his resources. The jewels are also required and apart from the jewels the petitioner is in need of not less than Rs. 1,00,000 to meet the expenses of the marriage. Hence he has filed the petition Crl. M.P. No. 2381 of 1988 for delivery of gold jewels which were seized without any condition and for raising the attachment and delivery of the title deeds of all the properties mentioned in the petition leaving out the document relating to Adyar house which is more than sufficient to realise the sum of Rs. 2.20 lakhs. Hence the petitioner has prayed to modify the order dated 25th August, 1975, in Crl. M.P. No. 2513 of 1975 for the delivery of the jewels and order that the jewels to be re-returned to him without any condition and further to raise the attachment of the following items of the properties and to direct the delivery of title deeds to the petitioner:
Document relating to No. 10. Bakthavatchalam Street, Document No. 1718 of 1948 and 1415/64, dated 30th May, 1964:
Document No. 824/78, dated 24th March, 1973 relating to purchase of wet lands 2.86 acres in Pazhaya Thandalam village;
Partnership deed relating to the wife of the petitioner in the Vigneswura Theatre, Poonamallee.
In Crl. M P. No. 2382 of 1988 the petitioner has prayed for raising the attachment,
14.The Respondent has filed the counter opposing the applications and contending that after investigation charge-sheet was filed against the petitioner and others under S.120B, 467, 423 and under S.5(2) read with S. 5(1)(d) of the Prevention of Corruption Act. Before the commencement of the trial in March, 1976, a petition was filed in the Court of the District Judge, Chengalpattu, In O.P. No. 56 of 1976 under Ss. 3 and 4 of the Criminal Law Amendment Ordinance 1944 for attachment of the schedule mentioned properties belonging to the petitioner as the State Government has reason to believe that he had committed the scheduled offence and an order of attachment of the properties was passed. After trial and conviction the trial Judge has rendered the finding that all the accused together procured the sum of Rs. 38.56, 5-7.75 by means of commission of the offences. As regards this accused, finding has been given under charge No. 190 Which was a charge under S.5(2) read with S. 5(1)(d) of the Prevention of Corruption Act that he had obtained pecuniary advantage for himself or others to the tune of Rs. 80,895.50.
Application under S. 482, Crl. P.C. will not lie where there are express provisions of law providing for a particular mode of action or has vested an authority with power to act in a particular manner. As per S.10 of the Ordinance, an order of attachment of property under the Ordinance shall unless it is withdrawn earlier in accordance with the provisions of the Ordinance continue to be in force until orders are passed by the District Judge in accordance with the provisions of the Ordinance after the termination of the criminal proceedings. Under S. 2(2) of the Ordinance the date of termination of criminal proceedings shall be deemed to be--
Where such proceedings are taken to Supreme Court in appeal whether on the certificate of a High Court or otherwise, the date on which the Supreme Court passes its final orders in such appeal; or
Where such proceedings are taken to High Court and orders are passed thereon; and
No application for a certificate for leave to Supreme Court is made to the High Court the day immediately following the expiry of ninety days from the date on which the High Court passes final orders.
As per S. 13 of the Ordinance particular procedure has to be adopted upon the termination of criminal proceedings for the disposal of attached property, The criminal appeal is pending and so if the attachment is raised and the documents of title are directed to be returned the purpose of attachment will be defeated. Hence it had been prayed that both the petitions have to be dismissed.
Learned Counsel for the petitioner submitted that the appeals filed by the petitioner and other appellate are pending in this Court from the year 1978. In Crl. M.P. No. 2513 of 1978 though the petitioner obtained an order for the return of the jewels with a condition to deposit Rs. 5,000 and execute a bond for Rs. 2,000 undertaking to produce the jewels, he could not deposit the amount then and take back the jewels. Further, according to the learned Counsel for the petitioner, even if the entire finding of the trial Judge is accepted by this Court in appeal the sum of Rs. 2.20 lakhs could only be recovered and in such circumstances it is not necessary to keep any attachment of the entire items of properties and as the property purchased by the worth more than Rs. 2 lakhs it is enough the documents relating to the said item alone could be retained and the other documents, jewels and cash could be directed to be returned.
Learned Counsel for the Respondent contended that any order could be passed only after termination of the proceedings and now it cannot at all be stated that the criminal proceedings have been terminated and there could be disposal of attached property only upon termination of criminal proceedings. Learned Counsel also submitted that there is a bar of other proceedings under S. 14 of the Ordinance and in such circumstances no order as prayed for by the petitioner could be passed under S. 482, Code of Criminal Procedure Learned Counsel for the Respondent also submitted the decision reported in P. Sivapathiran v. State 1982 Cri. L.J. 556. In the said decision Swamikkannu, J., dealing with S. 482, Crl. P.C. has held that S. 6E of the Essential Commodities Act prohibits any order being made by any court regarding distribution, delivery, custody and disposal of commodity. If a report has been sent to the Collector by a competent authority for confiscation of essential commodity, as in the instant case, no court can pass an order regarding the same. What more, when there is a hierarchy of judicial forums which are contemplated to deal with an order regarding delivery of commodity seized, the aggrieved party cannot directly move the High Court for favorable order under S 482, Crl. P.C. No order car be made in favour of such an aggrieved party because what is contemplated under S. 482 Crl P.C. is only the order made under Code of Criminal Procedure and not any other order that has been made under any other enactment. S. 482 does not confer jurisdiction on a Court to review proceedings real ting to seizure made by a competent executive authority.
It is to be seen that even according to the counter filed by the Respondent there had been a finding relating to the petitions under the charge No. 190 which was a charge under S. 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act that he had obtained pecuniary advantage to the extent of Rs. 80,895.80. Further according to the evidence of the approver all the accused were shown to have been paid a total amount o Rs. 38,56,577.75 which included the sumo Rs. 2.20 lakhs alleged to have been paid to the petitioner from July, 1972 to June, 1973 But, ultimately the trial Court itself has held that the pecuniary advantage to the petitioner was to the extent of Rs. 80895.80. Whatever that be as pointed out by the petitioner attachment of properties worth to the extent of Rs. 2.20 lakhs can be said to be sufficient having regard to the facts of this case. In such circumstances though the petitioner has now prayed for return of all the documents, excepting the documents relating to the Plot No. 6, Parameswari Nagar, Adyar, and the jewels and cash, I feel rejecting the prayer for the return of all the documents in respect of immovable properties, return of the jewels shown to have been seized as well as cash (viz., Jewellery; (a) 4 pair of gold bangles weighing 80.400 grams; (b) two-rows gold chain, one weighing 31.750 gms; (c) one gold chain weighing 30.800 gms; and (d) one gold chain with dollar, weighing 17.100 gms; and cash Rs. 26,561.26) could be ordered to be returned having regard to the contentions put forward on behalf of the petitioner regarding the marriage of his two daughters. In this connection it is to be pointed out that under S. 5(3) of the Criminal Law (Amendment) Ordinance, 1944 the District Judge is empowered to make the interim attachment absolute or to vary it subject to what is contained in proviso (a) and (b). It is to be pointed out that the ancestral property bearing No. 10, Bakthavatchalam St., had fallen to the share of the petitioner in the family partition and it may be stated that the attachment of the said property may not be proper. While that is so having regard to the peculiar circumstances of the case, I feel S. 482, Crl. P.C, could be invoked for directing the return of the jewels as well as cash to the petitioner.
In the result Crl. M.P. No. 2381 of 1988 is partly allowed with a direction to return jewels and cash mentioned in the petition and the attachment order passed in O.P. No. 56 of 1976 on the file of the District Judge, Chengalpattu, is raised and accordingly Crl. M.P. No. 2382 of 1988 is allowed.