(Prayer: Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased topleased to issue a Writ, in the nature of a Writ of Mandamus or any other appropriate Writ, direction or order declaring G.O.Ms.No. 317, Revenue (Vigilance-IV) Department dt 12.06.2019 issued by the Special Chief Secretary to Government, Revenue (Vig.IV) Department, Government of AP, 1st respondent herein as illegal arbitrary , void and quash the consequential proceedings initiated by the 3rd respondent including the filing of the application under Section 4(2.)(3) and Section 7(A) of the Criminal Law (Amendment) Ordinance, 1944 and the order dt.17.07.2019 of the Special Judge for S.P.E. and A.C.B. Cases , Rajamahendravaram in CrI.M.P.No.427 of 2019 in Crime No.17/RCA-EWG/2017 of A.C.B., Eluru,
IA NO: 1 OF 2019
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to suspend the operation of the impugned G.O.Ms.No. 317, Revenue (Vigilance IV) Department, dated 12/06/2019
IA NO: 2 OF 2019
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased stay all further proceedings in CrI.M.P.No. 427/2019 in Crime No. 17/RCA-EWG/2017 of ACB, Eluru, on the file of the Special Judge for Trial of SPE & ACB Cases, Rajamahendravaram
IA NO: 1 OF 2024
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to grant leave to the petitioner herein and respondent No.2 and 3, in WP.No. 14835 of 2019 to file counter affidavit in the above writ petition and pass
IA NO: 1 OF 2026
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to direct Respondent No. 3 to forthwith return the petitioner’s original Passport bearing No. H0674076, pending disposal of W.P.No.14835 of 2019, and pass)
1) The present Writ Petition came to be filed under Article 226 of the Constitution of India seeking the following relief:-
“…. to issue a Writ, in the nature of a Writ of Mandamus or any other appropriate Writ, direction or order declaring G.O.Ms.No.317 Revenue (Vigilance-IV) Department dt.12.06.2019 issued by the Special Chief Secretary to Government, Revenue (Vig.IV) Department, Government of Andhra Pradesh, 1st respondent herein, as illegal, arbitrary, void and quash the consequential proceedings initiated by the 3rd respondent including the filing of the application under Section 4 (2) (3) and Section 7(A) of the Criminal Law (Amendment) Ordinance, 1944 and the order dt.17.07.2019 of the Special Judge for S.P.E. & A.C.B. Cases, Rajamahendravaram in CrI.M.P.No.427 of 2019 in Crime No 17/RCA-EWG/2017 of A.C.B., Eluru.….”
2) The facts of the case, in brief, are as follows:
Petitioner was initially appointed as Assistant Commissioner of Endowments through A.P.P.S.C. under direct recruitment quota on 14.08.2000 and later promoted as Deputy Commissioner in July 2005 and further promoted as Joint Commissioner in September 2008, and that he is fully eligible for promotion to the post of Additional Commissioner being the senior most eligible person as per the final seniority list issued by the Government vide G.O.Ms.No.585 Revenue (Endowments-I) Department dated 19.11.2018.
3) While the petitioner was working as Regional Joint Commissioner of Endowments, Rajamahendravaram, respondent No.3 – Inspector of Police, Anti-Corruption Bureau, Eluru Range, Eluru, has filed an FIR.No.17/RCA-EWG/2017 dated 09.12.2017 against him alleging offence under Section 13 (2) read with 13(1)(e) of Prevention of Corruption Act, 1988. Respondent No.3 has conducted searches on 12.12.2017 and filed remand report before the Special Court for S.P.Ε.& A.C.B. cases, Vijayawada, describing 9 properties worth Rs.1,73,45,532/- (in words one crore seventy three lakhs forty five thousand five hundred and thirty two rupees only). As the petitioner was sent to judicial remand, State has placed him under suspension vide G.O.Rt.No.1349 dated 20.12.2014.
4) Petitioner contended that there is no prima facie case for registering an F.I.R., and the case was foisted against him at the instance of persons inimical to him, and as there is malice in registering the said F.I.R., he filed Criminal Petition No.3687 of 2018 before the High Court under Section 482 of Cr.P.C. for quashing of the F.I.R., wherein as per the directions of this Court, standing counsel filed status report twice with regard to the progress of the investigation and also filed a detailed counter. However, this Court disposed off the above said Petition on 20.12.2018 directing respondent No.3 to complete investigation and file final report within 4 months as the crime was registered on 09.12.2017 and pending for more than one year.
5) Pursuant thereto, respondent No.3 after completion of the investigation, has issued statutory notice dated 01.03.2019 calling for explanation of the petitioner alleging that the disproportionate assets are to a tune of Rs.1,50,69,829/- (in words one crore fifty lakhs sixty nine thousand eight hundred twenty nine rupees only), for finalization of the case. Petitioner has submitted his explanation on 29.03.2019 denying the allegations and categorically stated that he has not possessed any disproportionate assets and on the other hand, he has surplus savings of Rs.54,35,594/- (in words Fifty Four lakhs thirty five thousand five hundred ninety four rupees only) and intentionally to strengthen the case registered against him, respondent No.3 did not take into account the income earned by him by practicing as an Advocate since 1994, rental income from 15 shops inherited from his father and that though the slab area of the residential building of the petitioner is 6,458 Sq.feet, respondent No.3 assessed the same as 14,057 Sq.feet intentionally to foist a false case against him.
6) It is the further case of the petitioner that he has filed O.A.No.597 of 2019 on the file of the A.P. Administrative Tribunal questioning the action of the respondents in continuing him under suspension for longer period, particularly when the investigation was not been completed in spite of the specific directions of this Court in Crl.P.No.3687 of 2018. The A.P.Administrative Tribunal has disposed off the said O.A. vide orders dated 22.04.2019, directing the authorities to consider the explanations dated 29.03.2019 and 31.03.2019 and pass appropriate orders regarding reinstatement of the petitioner; in pursuance of which, Government vide GO Rt.No. 758, Revenue (Vigilance IV) Department, dated 16.07.2019, on the basis of the recommendations of the Review Committee, reinstated the petitioner into service, accordingly the petitioner reported to duty on the same day itself. Thereafter, vide G.O.Rt.No. 882, Revenue, dated 20.08.2019, he was posted as Joint Commissioner (Estates), in the office of the Commissioner of Endowments, Vijayawada.
7) Further, respondent No.2 has sent a proposal seeking authorization to file an application in the Court of S.P.E. & Α.C.B. cases, Rajamahendravaram for attachment of his properties. In turn, respondent No.1 authorized respondent No.3 for filing the application for attachment of properties worth Rs.2,17,81,763/- as described vide G.O.Ms.No.317, Revenue (Vigilance-IV) Department dated 12.06.2019. Thereafter, the petitioner has received a show cause notice on 26.08.2019 from the Court of Special Judge for S.P.E. & A.C.B. cases, Rajamahendravaram dated 17.07.2019 in Crl.M.P.No.427 of 2019 in Crime No.17/RCA-EWG/2017 of A.C.B., Eluru stating as to why the attachment order dt.17.07.2019 passed by it should not be made absolute and also directed him not to alienate the properties reflected in the Remand report dt.13.12.2017. Thereafter, the petitioner filed the present writ petition challenging the G.O.Ms.No.317, Revenue (Vigilance-IV) Department dated 12.06.2019
8) Respondent Nos.2 and 3 filed counter affidavit contending that on credible information that the petitioner had acquired assets disproportionate to his known sources of income, the Joint Director, Anti-Corruption Bureau, issued proceedings dated 05.12.2017 to register a case against the petitioner and investigate into it. Accordingly, a case in Crime No.17/RCA-EWG/2017 was registered under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988, and investigation was taken up. During the course of investigation and pursuant to search warrants issued by the competent Court, it was found that the petitioner had acquired assets worth Rs.2,35,27,429/- in his name and in the names of his family members, out of which properties worth Rs.2,17,81,763/-were proposed for attachment.
9) It is further contended that the preliminary investigation disclosed possession of assets disproportionate to the petitioner's known sources of income, which he failed to satisfactorily account for. It was also found that the petitioner and his wife had disposed of certain properties after the search proceedings. In view of the said circumstances, proposals were submitted to the Government seeking authorization for attachment of the properties, pursuant to which G.O.Ms.No.317, Revenue (Vig.-IV) Department, dated 12.06.2019, was issued. Consequentially, an application was filed before the Special Judge for SPE and ACB Cases, Rajamahendravaram, seeking ad-interim attachment of the petitioner’s properties; accordingly on 17.07.2019, the Special Judge for SPE and ACB Case passed ad interim attachment orders in Crl.M.P.No.427/2019 in Crime No.17/RCA-EWG/2017.
10) It is contended that there was no malice or ulterior motive in registering the criminal case against the petitioner. The Scrutiny of documents disclosed that the petitioner has acquired assets worth Rs.2,35,27,429/-. The investigation disclosed disproportionate assets to the tune of Rs.1,02,58,214/- during the check period from 01.05.2005 to 12.12.2017, which the petitioner failed to satisfactorily account for. After completion of the preliminary investigation, statutory notice was also issued on 01.03.2019.
11) It is further contended that the alleged property declaration pertaining to the year 2000 was not found to be supported by the departmental record. The manner and timing of submission of the alleged declaration, coupled with the absence of the usual departmental endorsements and the circumstances relating to the subsequent APRs, raised serious doubts regarding its genuineness. The petitioner also did not claim, at the time of search, that the gold and cash allegedly declared in the year 2000 were possessed by him at the time of joining service. Further, the gold ornaments found during the search were stated to have been purchased in the year 2015. Hence, the petitioner's claim in this regard cannot be accepted.
12) It is further contended that the rental income claimed by the petitioner is not supported by the material collected during investigation. The investigation established rental income of Rs.20,70,000/- from the shops during the check period, and not Rs.58,57,817/- as claimed by the petitioner. The higher rental income claimed by him was also not reflected in the income-tax returns furnished for the relevant period.
13) It is contended that the valuation of the petitioner's residential building was carried out by the competent officials after taking measurements of the various components of construction. The valuation arrived at during investigation was Rs.1,36,33,929/-. The nature and extent of the construction, including the three-floor structure, substantial built-up area, teak wood fittings, marble flooring and other amenities, demonstrate that the petitioner's claimed construction cost of Rs.76,89,161/- cannot be accepted.
14) It is further contended that the income of the petitioner and his wife was duly considered while computing the disproportionate assets. The investigation disclosed that the petitioner possessed disproportionate assets amounting to Rs.1,02,58,214/- during the check period, remained unexplained.
15) It is contended that the petitioner's averments concerning his reinstatement in Government service pursuant to G.O.Rt.No.758, Revenue (Vigilance-IV) Department, dated 16.07.2019 are not germane to the present proceedings.
16) It is contended that the proposal for attachment was necessitated as the petitioner possessed disproportionate assets and to prevent the disposal of properties by him and his wife. After examining the material and documentary evidence placed before it, the Government issued G.O.Ms.No.317 dated 12.06.2019 authorizing the competent officer to approach the Special Judge for SPE and ACB Cases, Rajamahendravaram for attachment of properties worth Rs.2,17,81,763/-. The competent Court thereafter passed orders of ad-interim attachment on 17.07.2019.
17) It is further contended that the investigation disclosed commission of the scheduled offence under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988, and acquisition of assets disproportionate to the petitioner's known sources of income in his name and in the names of his family members. Accordingly, the attachment proceedings are legally sustainable and the writ petition is devoid of merits and liable to be dismissed.
18) Heard Sri P.Kamalakar, learned counsel for the petitioner and Sri S.Syam Sunder Rao, learned standing counsel-cum-Special Public Prosecutor for Anti Corruption Bureau.
19) Though the writ petition is filed to set aside the G.O.Ms.No.317 Revenue (VIG.IV) Department dated 12.06.2019, during hearing, Sri P.Kamalakar, learned counsel for the petitioner confined his arguments to the extent that the attachment order passed by the concerned Court would automatically lapse after one year for not taking cognizance of the alleged offences and also in the absence of any extension petition filed by the State.
20) Learned counsel for the petitioner would contend that Section 3 (1) of the Criminal Law (Amendment) Ordinance, 1944 (for short “Ordinance”) does not permit indiscriminate attachment. Section 10 of the Ordinance deals with duration of attachment in force, unless it is withdrawn an order of ad interim attachment would be in force for a period of one year only. As the attachment order has not been extended and cognizance has not been taken, the same was lapsed by operation of law under Section 10 of the Ordinance and requested to set aside the ad interim order dated 17.07.2019 passed in Crl.M.P.No.427 of 2019 in Cr.No.17/RCA-EWG/2017 by the Special Judge for Trial of SPE and ACB Cases, Rajahmahendravaram.
21) On the other hand, learned standing Counsel for ACB would contend that the ad interim order dated 17.07.2019 was never challenged by the writ petitioner and as such it has been made absolute by the Court on 20.12.2019. Any person, aggrieved by the order of attachment passed under Sections 4, 6, 8 or 9 of the Ordinance, can prefer appeal before the High Court within 30 days from the date of the order, as provided under Section 11 of the Ordinance, in the present case, no such appeal has been preferred by the petitioner herein. In the absence of the appeal filed by the petitioner, the writ petition filed by the petitioner is not maintainable, requested to dismiss the writ petition.
22) Perused the material available on record.
23) Now, the point that arises for consideration is
“Whether the ad interim attachment order dated 17.07.2019, passed by the learned Special Judge for SPE and ACB Cases, Rajahmahendravaram, is sustainable, in view of Section 10 of the Ordinance, when no petition seeking extension of the attachment was filed and cognizance of the alleged offences against the petitioner was not taken?”
P O I N T:
24) In the present case, respondent No.3 herein – Inspector of Police, ACB, Eluru Range, Eluru filed FIR No.17/RCA-EWG/2017 dated 09.12.2017 against the petitioner for the offence punishable under Section 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988. As the preliminary investigation disclosed possession of assets disproportionate to the petitioner's known sources of income, which he failed to satisfactorily account for, respondent No.2 has sent a proposal seeking authorization to file an application in the Court of S.P.E. & Α.C.B. cases, Rajamahendravaram for attachment of his properties. The Government, after careful examination of the matter, issued G.O.Ms.No.317 Revenue (VIG.IV) Department dated 12.06.2019 authorizing respondent No.3 - Inspector of Police, Anti Corruption Bureau, Eluru Range, Eluru for filing the applications in the Court of Special Judge for Special Police Establishment and Anti Corruption Bureau Cases, Rajamahendravaram for attachment of properties worth Rs.2,17,81,763-00 ps under Sections 3 and 4 of the Criminal Law (Amendment) Ordinance, 1944. Consequentially, an application was filed before the Special Judge for SPE & ACB Cases, Rajamahendravaram, and ad interim attachment order was passed on 17.07.2019 was passed in Crl.M.P.No.427/2019 in Crime No.17/RCA-EWG/2017. Further, on 20.12.2019 as the counters are not filed, the Court made the ad interim attachment order absolute.
25) The core contention of the learned counsel for the petitioner is that the ad interim attachment order was passed by the Court on 17.07.2019, thereafter, no extension petition was filed by the respondents, and no cognizance was taken for the alleged offences against the petitioner in view of Section 10 of the Ordinance, therefore, the ad interim attachment order passed by the Court has lapsed.
26) For better appreciation, Section 10 of the Ordinance is extracted hereunder.
“10. Duration of attachment:- An order of attachment of property under this Ordinance shall, unless it is withdrawn either in accordance with the provisions of this Ordinance, continue in force :
(a) Where no Court has taken cognizance of the alleged scheduled offence at the time when the order is applied for, [one year] from the date of the order under sub-section (1) of Section 4 or sub-section (2) of Section 6 as the case may be, unless cognizance of such offence is in the meantime so taken or unless the District Judge on application by the agent of the [State Government or, as the case may be, the Central Government] thinks it proper and just that the period should be extended and passes an order accordingly; or
(b) Where a Court has taken cognizance of the alleged scheduled offence whether, before or after the time when the order was applied for until orders are passed by the District Judge in accordance with the provisions of this Ordinance after the termination of the criminal proceedings.”
27) As per the provisions of Section 10 (a) of the said Ordinance, any interim order passed under Section 4 (1) of the said Ordinance will be in force for a period of one year, unless and otherwise, if any application is made either by the Agent of State Government or Central Government, as stated in Section 10(a) of the said Ordinance, for the purpose of extension of the said order for further period. If no such application is made, the said interim order of attachment would be lapsed. If cognizance is taken within the period specified in Section 10, then the attachment order would continue to be in force till completion of the trial.
28) In support of his contentions, learned counsel for the petitioner relied on judgment of the High Court of Madras in “KCP Infra Limited Vs. The State of Tamil Nadu and Ors. (2024-1-LW(Crl)592)”, wherein the Court held as follows:
“Further, this Court would like to point out that it is for the prosecution, who has been handling the present subject matter, to file an appropriate application for the extension of interim attachment order in time in terms of Section 10(a) of the said Ordinance before it got lapsed, however, they had failed to do so. Since there was a failure on the part of the officers to file an appropriate application before the expiry of the said interim attachment order, no useful purpose will be served in approaching the Court for extending the order with the condonation petition, after the same got lapsed. Only the prosecution has to be blamed for their failure to file an appropriate application within time as prescribed in the Statute. If a Statute contemplates to act in a particular manner, a person, who intend to avail the remedy, is expected to act in the manner as contemplated in the Statute. However, in the present case, the prosecution had failed to do so. As stated above, other than prosecution, nobody can be blamed for allowing the interim attachment order to be lapsed. Even thereafter, the prosecution could have filed a fresh application for getting fresh attachment orders. However, they had failed to do so.”
29) In “Inspector General of Police, Cabinet (Vigilance) Dept. Govt. of Bihar Vs. Central Manbhum Coal Co. (P) Ltd. and Ors. (1984 Cri.L.J. 1703)” relied on by the learned counsel for the petitioner, the Calcutta High Court held as follows:
“Section 10 which has been set out hereinbefore prescribes the duration of an attachment under the Ordinance. The term 'attachment' in Section 10 does not mean and include only the ad interim attachment but the attachment which is the only relief claimed in the proceedings. Unless extended by the learned District Judge and unless the Court has taken cognizance of a scheduled offence in the meantime, the attachment can subsist only for 3 months calculated from the date when the ad interim attachment is made. The learned Judge failed to appreciate the difference between the scheme of attachment proceeding under the Ordinance and one under Order 38 Rule 5 of the Civil P.C. Here the Ordinance contemplates making of an ad interim attachment and then a notice to show cause why it should not be made absolute while under the Code the notice is issued to show cause why an attachment should not be made and in issuing such a notice the Court may or may not grant an ad interim attachment. Therefore, if an ad interim attachment is refused or if it lapses, the proceeding no longer survives under the Ordinance because there remains no ad interim order which can be made absolute. That being the position in law, if the attachment itself has lapsed it is difficult to contemplate that the proceeding therefore still survives.”
30) In “Surindarjit Singh Jaspal Vs. State of Punjab (2025 LawSuit (P&H) 127)” relied on by the learned counsel for the petitioner, the High Court of Punjab and Haryana held as follows:
“….. the statutory lapse of the attachment order cannot be overridden by the conduct of the petitioner, as the statute unequivocally limits the validity of provisional attachments to one year unless specifically extended.”
31) In “State of Maharashtra Vs. Trambak Ananda Mahajan (1987 LawSuit (Bom) 216)” relied on by the learned counsel for the petitioner, the High Court of Bombay while dealing with the Section 10 of the Ordinance held as follows:
“The object of the said clause is obvious. It enables the State to attach the properties of an individual against whom a prosecution is intended to be lodged so as to disunited the accused from disposing all the said properties and reaping the fruit thereof which have been acquired by the commission of offences. At the same time it is the further object of the said clause to ensure a speedy investigation and filling of the charge sheet so that the accused does not suffer the order of attachment for an undue long period and that period, in the wisdom of the said stature has been fixed at three months with a rider that it was open in special case to the State to move for extension but that has to be done within the said period of three months.
………….. it has been held that an order of attachment of property shall be effective for three months from the date of the order where no cognizance of the offence is taken. If cognizance is taken during the aforesaid period of attachment, that attachment would continue beyond the period of three months. Where, however, neither of the two alternatives contemplated in the said Clause (a) is resorted to, the attachment will come to an end. If neither cognizance is taken during the period of three months from the date of attachment nor is the period extended, the order of attachment comes to an end and this was supported on the ground that if any transfer of such property was made by the accused after the period of three months and third party interests were created, any contrary construction would adversely affect the bona fide transferees which provisions.”
32) In “Padmasundara Rao and Ors. Vs. State of Tamil Nadu and Ors. ((2002) 3 SCC 533)” relied on by the learned counsel for the petitioner, the Hon’ble Supreme Court held as follows:
“It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said.
………….. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.”
33) In “K. Somasekhar Reddy and Ors. Vs. The State represented by its S.H.O., Inspector of Police, Kadapa, Tirupathi Range (2015 (2) ALD(Crl.) 692 (AP))” relied on by the learned counsel for the petitioner, the High Court of Judicature at Hyderabad held as follows:
“………Section 10 of the Ordinance enables the State to attach the properties of the individual against whom the prosecution is intended to be lodged so that the accused is prevented from disposing of the properties attached and reaping the fruits thereof. At the same time it held that it is the further object of Section 10 of the Ordinance to ensure a speedy investigation and filing of the charge sheet so that accused does not suffer the order of attachment for an undue long period and that period, in its wisdom, legislature had fixed at three months ( later amended as one year) with a rider that it was open in a special case to the State to move for an extension but that also has to be done within a period of three months.”
34) It can be understood from the law laid down in the above judgments, Section 10 of the Ordinance enables the State to attach the properties of an individual against whom a prosecution is intended to be lodged so as to disunite the accused from disposing all the said properties and reaping the fruit thereof which have been acquired by the commission of offences.
35) In “A. Sambaiah Nayak and Ors. Vs. State of Telangana (2017CriLJ1682)” relied on by the learned standing counsel for ACB, the High Court of Judicature at Hyderabad held as follows:
“Section 10 of the Ordinance deals with duration of attachment in force. Unless it is withdrawn, an order of ad interim attachment would be in force for a period of three months, prior to 1988 and it is one year with effect from 09.9.1988, by virtue of Section 29 of the PC Act. After expiry of the period of one year, the concerned authority has to make an application, for extension of the order of ad interim attachment, subject to non-taking of cognizance of offence by the Special Court. If, for any reason, the Authority fails to file petition seeking extension of ad interim attachment, within the period of one year, the same will cease automatically. When such contingency arises, the Authority has no option except to file a fresh application for re-attachment of the property. Once the Special Court takes cognizance of offence, the attachment will continue till termination of the criminal proceedings.”
36) In view of the law laid down in the said judgment, after expiry of the period of one year, the concerned authority has to make an application, for extension of the order of ad interim attachment, subject to non-taking of cognizance of offence by the Special Court. If, for any reason, the Authority fails to file petition seeking extension of ad interim attachment, within the period of one year, the same will cease automatically. When such contingency arises, the Authority has no option except to file a fresh application for re-attachment of the property.
37) In the present case, ad interim attachment order was passed on 17.07.2019, no cognizance was taken by the special Court within the period of one year. Further, till date no cognizance was taken, therefore, the ad interim attachment order would cease automatically.
38) In “K.G.Natesan Vs. State (2014(4)MLJ(Crl)305)” relied on by the learned standing counsel for ACB, the High Court of Madras held as follows:
“It is to be remembered that 'an Attachment' by itself does not create a title nor operates to convert any title in attaching creditor or attaching authority. As a matter of fact, the attachment basically defines private alienation of property attached and property cannot be dealt with to the prejudice of the claims enforceable under attachment. Furthermore, the owner or occupier does not lose all rights an interest in the property, in the considered opinion of this Court.”
39) In “State rep. By Inspector of Police Vs. Korra Ramchander (Criminal Appeal No.1182 of 2017)”, relied on by the learned standing counsel for ACB, the High Court of Judicature at Hyderabad held as follows:
“As seen from the provisions of the Prevention of Corruption Act, 1988, once a Government Order authorizing a particular officer of the department is issued, he is competent to file an application; and, merely because the period to seek extension of order of attachment is lapsed, that will not preclude the said officer from filing another application based on the same authorization.”
40) In “N.K.Banerji Vs. State of Bihar (1969(17)BLJR360)” relied on by the learned standing counsel for ACB, the High Court of Patna held as follows:
“From the preamble of the Ordinance the intention of the Legislature is apparent that the main purpose of the Ordinance was to provide for preventing the disposal or concealment of money or other property procured by means of certain offences punishable under the Indian Penal Code. Further, the provisions contained in Section 10(a) and 10(b) of the Ordinance, if read together, clearly indicate that the intention of the Legislature while laying down the requirement for the extension of the period till cognizance is taken, was only for the purpose of speedy disposal of the case so that the decisions regarding the attachment of the property should not be protracted. Therefore, the said requirement for extension of time, in my opinion, is not of the essence of the thing required by the Statute and the intention of the Legislature in complying within the required period is for convenience rather than substance. It is only with a view to proper, orderly and prompt conduct of the public business. Therefore, in my opinion, it is only directory. It cannot be said to be mandatory. In the said section no prohibitive or negative words are used relating to the time within which the act is to be performed nor there is any indication as to what will happen if the provision is not complied. Therefore, it can safely be inferred that the provision contained under Clause (a) of the said section is directory and not mandatory.”
41) The law laid down in the said judgments relied on by the learned standing counsel for ACB is not in dispute and not relevant to the contentions raised by the learned counsel for the petitioner. In view of the law laid down in the said judgments, the provisions contained in Section 10(a) and 10(b) of the Ordinance, if read together, clearly indicate that the intention of the Legislature while laying down the requirement for the extension of the period till cognizance is taken, was only for the purpose of speedy disposal of the case so that the decisions regarding the attachment of the property should not be protracted.
42) Admittedly, in the present case, ad interim order was passed by the Court on 17.07.2019 and adjourned the matter to 13.09.2019. On 13.09.2019, 14.10.2019, 31.10.2019, and 13.12.2019, as the petitioner herein has not filed counter, on 20.12.2019, the Court suo motu passed the order that “attachment is made absolute”.
43) As per the law laid down in “A. Sambaiah Nayak and Ors. Vs. State of Telangana” (referred supra) relied on by the learned standing counsel for ACB himself, unless the ad interim attachment order is withdrawn, the same would be in force for a period of three months, prior to 1988 and it is one year with effect from 09.9.1988, by virtue of Section 29 of the Prevention of Corruption Act. After expiry of the period of one year, the concerned authority has to make an application for extension of the order of ad interim attachment, subject to non-taking of cognizance of offence by the Special Court. If, for any reason, the Authority fails to file petition seeking extension of ad interim attachment, within the period of one year, the same will cease automatically.
44) As per Section 10 of the Ordinance, if the Special Court had not taken cognizance of the offences against the cases at the time when the order for attachment is applied for, the order of attachment of property under the Ordinance would continue only for one year from the date of its order under sub-section (1) of Section 4 or sub-section (2) of Section 6 as the case may be. The said section further provides that the District Judge may, on application by the Agent of the State Government or as the case may be the Central Government, direct that the attachment order be extended for a further period.
45) In the present case, as admitted by the learned standing Counsel for ACB, cognizance against the petitioner has not been taken by the concerned Court, and the respondents have not filed any application for extension of ad interim attachment order or fresh application for reattachment of the property after expiry of one year from the date of passing the ad interim attachment order. The Court passed the ad interim attachment order on 17.07.2019, thereafter, though no cognizance was taken and the investigation is not yet completed, the Court below suo motu made the ad interim order absolute on 20.12.2019.
46) The object of Section 10 of the Ordinance is to ensure a speedy investigation and filing of the charge sheet so that accused does not suffer the order of attachment for an undue long period and that period, in its wisdom, is fixed as one year by the legislature. As the cognizance has not been taken during the period of one year from the date of attachment, the order of attachment automatically comes to an end after one year. If the respondents failed to file any extension petition within one year, the ad interim attachment order passed by the Court would automatically be lapsed, but the Court cannot suo motu make it absolute. The statutory lapse of the attachment order cannot be overridden by the conduct of the petitioner, as the statute unequivocally limits the validity of provisional attachments to one year.
47) The legislative intent underlying Section 10 of the Ordinance has to be understood in this context also. An order of attachment of property, though intended to protect the property from being dealt with or alienated during the pendency of the proceedings, has serious consequences for the person whose property is attached. The legislature has, therefore, prescribed a definite period for which an ad interim attachment can continue when cognizance has not yet been taken. The object appears to be to ensure that the investigating agency proceeds with the investigation within a period of one year and takes the necessary steps for filing the charge sheet and place the matter before the competent Court within the period prescribed by law. At the same time, the provision protects the interests of the accused by ensuring that the attachment of property does not continue indefinitely merely on the ground that the investigation is still pending.
48) It is equally relevant to note that after expiry of the statutory period, the attachment order would automatically get lapsed, in such a case, the Court could not, merely on its own motion, revive or make absolute attachment order suo motu without there being any application by the agent of the State Government or as the case may be, the Central Government seeking extension of attachment order. The power to continue the attachment beyond the prescribed period has to be exercised in the manner contemplated by Section 10 of the Ordinance and upon an appropriate application being made by the competent authority. The absence of such an application assumes significance in the present case.
49) Therefore, the lapse of the attachment is a consequence flowing from the statutory scheme itself. Once the statutory period of one year expired without taking cognizance and without there being any application by the Station seeking extension of attachment as contemplated under Section 10 of the Ordinance, the ad interim attachment order would be lapsed by operation of law. Such statutory lapse cannot be overridden merely on the ground that the investigation remained pending. The attachment could continue beyond one year only upon compliance with the procedure prescribed by the Ordinance, which admittedly has not been done in the present case.
50) In view of the above discussion, this Court is of the opinion that the order dated 17.07.2019 passed in Crl.M.P.No.427 of 2019 in Crime No.17/RCA-EWG/2017 by the Special Judge for Trial of SPE and ACB Cases, Rajahmahendravaram has lapsed in view of Section 10 of the Ordinance, therefore, the same is liable to be set aside.
51) Accordingly, the writ petition is allowed in part to the extent of setting aside the order dated 17.07.2019 passed in Crl.M.P.No.427 of 2019 in Crime No.17/RCA-EWG/2017 by the Special Judge for Trial of SPE and ACB Cases, Rajahmahendravaram as the same has lapsed in view of Section 10 of the Ordinance. However, the respondents are at liberty to file fresh application seeking reattachment of the petitioner’s properties, if so advised. No costs.
52) Pending miscellaneous applications, if any, shall stand closed.
