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THE ORISSA SPECIAL COURTS ACT, 1990
THE ORISSA SPECIAL COURTS ACT, 1990
Orissa Act 22 of 1992
[Bill, 1990 and amendment Bill, 1992 have received the assent of the President on the 9th July 1992 and 24th July 1992 respectively and published in an extraordinary issue of the Orissa Gazette, dated the 27th July 1992]
An act to provide for the constitution of special courts for the speedy trial of a certain class of offences and for the confiscation of properties involved.
Whereas during the last several years corruption wan rampant amongst persons holding high political and public offices in the State of Orissa and others connected with such corruption;
And whereas during the last Parliament Election, 1989 as well as Assembly Election, 1990 the people of Orissa were promised by the present Chief Minister that all steps will be taken to confiscate the ill-gotten money made by corrupt means by persons holding high political and public offices and others and to utilise such properly for the welfare of the State;
And whereas investigations conducted by the agencies of the Government disclose prima facie evidence confirming existence of such corruptions and the Government has reasons to believe that large number of persons who are holding high political and public offices during last about ten years have accumulated vast properties disproportionate to their known sources or income by resorting to corrupt means;
And whereas it is constitutional, legal and moral obligation of the State lo prosecute persons involved in such corrupt practices;
And whereas the existing courts or Special Judges cannot reasonably be expected to bring the trials arising out of those prosecutions to a speedy Termination and it is imperative for the efficient functioning or a parliamentary democracy and the institutions created by or under the Constitution of India that the aforesaid offenders should be tried with inmost dispatch;
And whereas it is necessary for the said purpose to establish Special Courts presided over by the sitting Judges of High Court and it is also expedient to make some procedural changes whereby avoidable delay in the final determination of the guilt or innocence of the persons to be tried is eliminated without interfering with the right to a fair trial;
Be it enacted by the Legislature of the State of Orissa in the Forty-first Year of the Republic of India as follows:—
CHAPTER I
PRELIMINARY
1. Short title and extent.
(1) This Act may be called the Orissa Special Courts Act, 1990.
(2) It shall extend to the whole of the State of Orissa.
2. Definitions.
In this Act, unless the context otherwise requires.—
(?) "authorised officer"-means any officer Dot below the rank of a District Judge to be nominated by the State Government for the purpose of section 13;
(b) “Code" means the Code of Criminal Procedure, 1973;
(c) "declaration", in relation to an offence, means a declaration made under section 5 in respect of such offence;
(d) "offence" means an offence of criminal misconduct within the meaning of clause (e) of sub-section (1) of section 13 of the Prevention of Corruption Act, 1988;
(e) "Special Court" means a Special Court established under section 3; and
(f) words and expressions used herein and not defined but defined in the Code shall have the meanings respectively assigned to them in the Code.
CHAPTER II
ESTABLISHMENT OF SPECIAL COURTS
3. Establishment of Special Courts.
(1) The State Government shall, by notification, establish adequate of courts to be called Special Courts.
(2) A Special Court shall be preside.! over by a sitting Judge of a High Court in India to be nominated by the State Government with the concurrence of the Chief Justice of the concerned High Court.
4. Cognizance of cases by Special Court.
A Special Court shall take cognizance of and try such cases as are instituted before it or transferred to it under section 10.
5. Declaration of cases to be dealt with under this Act.
(1) If the State Government is of the opinion that there is prima facie evidence of the commission of an offence alleged to have been committed by a person who held high public or political office in the State of Orissa and that the said offence Ought to be dealt with under the Act, the State Government shall make a declaration to that effect in every case in which it is of the aforesaid opinion.
(2) Such declaration shall not be called in question in any Court.
6. Effect of declaration.
(1) On such declaration being made no twill, standing anything in the Code or in any other law for the lime being in force, any prosecution in tested of the offence shall be instituted only in Special Court.
(2) Where any declaration made under section 5 relates to an offence in respect of which a prosecution has already been instituted and the proceedings in relation thereto are pending in a Court other than Special Court, such proceedings shall, notwithstanding anything contained in any other law for the time being in force land transferred to Special Court for trial of the offence in accordance with this Act.
7. Jurisdiction of Special Courts as to trial of offences.
A Special Court shall bare jurisdiction to try any person alleged to have commuted the offence in respect of which a declaration has been made under section 5, either as principal, conspirator or abettor and all other offences and accused persons as can be jointly tried therewith at one trial in accordance with the Code.
8. Procedure and powers of Special Courts.
(1) A Special Court shall, in the trial of such cases, follow the procedure prescribed by the Code, for the trial of warrant cases before a magistrate.
(2) Save as expressly provided in this Act, the provisions of the Code and the Prevention of Corruption Act, 1988 shall, in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings before a Special Court and for the purposes of the said provisions of the Code, the person conducting a prosecution before a. Special Court shall be deemed to be a Public Prosecutor.
(3) A Special Court may pass upon any person convicted by it any sentence authorised by law for the punishment of the offence of which such person is convicted.
9. Appeal against orders of Special Courts.
(1) Notwithstanding anything in the Code, an appeal shall lie from any judgment and sentence of a Special Court lo the High Court of Orissa both on facts and law to be heard by a Division Bench constituted by the Chief Justice of the said High Court.
(2) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order or-a Special Court.
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment and sentence of a Special Court;
Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied for reasons to be recorded in writing that the appellant had sufficient cause for not preferring the appeal within the period.
10. Transfer of cases.
Notwithstanding any other provisions in this Act, it would be open to the Chief Justice of the High Court of Orissa to transfer cases from one Special Court lo another.
11. Special Court not bound to adjourn a trial.
A Special Court shall nut adjourn any trial for any purpose unless such adjournment is, in its opinion, necessary in the interests of justice and for reasons in be recorded in writing.
12. Presiding Judge may act on the evidence recorded by his predecessor.
A Judge appointed under section 3 to preside over a Special Court may act on the evidence recorded by his predecessor or predecessors or partly recorded by his predecessor or predecessors in
CHAPTER 111
CONFISCATION OF PROPERTY
13. Application for confiscation.
(1) Where the Stale Government on the basis of prima facie evidence has reason to believe that any person who held high public or political office has committed the offence, the State Government may, whether or not the Special Court has taken cognizance of the offence, authorise the Public Prosecutor for making an application to the authorised officer for confiscation under this Act of the money or other property which the State Government believes the said person to have procured by means of the offence.
(2) An application under sub-section (1) shall be accompanied by one or more affidavits, stating the grounds on which the belief that the said person has committed the offence is founded, and the amount of money or value of other property believed to have been procured by means of the offence. The application shall also contain any information available as to the location for the lime being of any such money or other property, and shall, if necessary, give particulars, including the estimated value of other property of the said person.
14. Notice for confiscation.
(1) Upon receipt of an application made under section 13 the authorised officer shall serve a notice upon person in respect of whom the application is made (hereinafter referred to as the person affected) calling upon him within such time as may be specified in the notice, which shall not be ordinarily less than thirty days, to indicate the source of his income, earnings or assets, out of which or by means of which he has acquired such money or properly, the evidence on which he relies and other relevant informations and particulars, and to show, cause why all or any or such money or property, as the case may be, should not be declared to have been acquired by means of the offence and confiscated to the State Government.
(2) Where a notice under sub-section (1) to any person specifies any money or property as being held on behalf of such person by any other person, a copy of the notice shall also be served upon such other person.
15. Confiscation of property in certain cases.
(1) The concerned authorised officer may, after considering the explanation, if any, to the show cause notice issued under section 14, and the materials available before it and after giving to the person affected (and in case where the person affected holds any money or property specified in notice through any other person, to such other person also), a reasonable opportunity of being heard by order, record a finding whether all or any other money or properties in question have been acquired illegally.
(2) Where the authorised officer specifies that some of the money or property referred to in the show cause notice is acquired by means of the offence but is not able to identify specifically such money or property, then it shall be lawful for the authorised officer to specify the money or property which, to the best of his judgment, has been acquired by means of the offence, and record a finding accordingly under sub-section (1).
(3)Where the authorised officer records a finding under this section to the effect that any money or property has been acquired by means of the offence, he shall declare that such money or property shall, subject to the provisions of this Act, stand confiscated to the State Government free from all encumbrances:
Provided that if the market price of the property confiscated is deposited with the authorised officer, the property shall not he confiscated.
(4)Where any share in a company stands Confiscated to the State Government under this Act, then, the company shall, notwithstanding anything contained in the Companies Act, 1956, or the Articles of Association of the company, forthwith register the State Government as the transferee of such share.
(5) Every proceeding for confiscation of money or property under this Chapter shall be disposed of within a period of six months from the date of service of the notice under sub-section (1) of section 14.
(6) The order of confiscation passed under this section shall, subject to the order passed in appeal, if any, under section 18, be final and shall not be called in question in any Court of law.
16. Burden of proof.
In any proceedings under this Act, the burden of proving that any properly specified in the notice served under section 14 is not acquired by means of the offence shall be on the person affected.
17. Transfer to be null and void.
Where after the issue of a notice under section 14 any money or property referred to in the said notice is transferred by any made whatsoever such transfer shall, for the purposes of the proceedings under this Act, be void and if such money or property is subsequently confiscated to the State Government under section 15, then the transfer of such money or property shall be deemed to be null and void.
18. Appeal.
(1) Any person aggrieved by any order of the authorised officer under this Chapter may appeal to the High Court within thirty days from the date on which the order appealed against was passed.
(2) Upon any appeal preferred under this section the High Court may after giving such parties, as it thinks proper, an opportunity of being heard, pass such order as it thinks fit.
(3) An appeal preferred under sub-section (1) shall be disposed of within a period of three months from the date it is preferred. Stay order, if any, passed in an appeal shall not remain in force beyond the prescribed period of disposal of appeal.
19. Power to take possession.
(1) Where any money or property has been confiscated to the State Government, under this Act, the concerned authorised officer shall order the person affected as well as any other person who may be in possession of the money or properly to surrender or deliver possession thereof to the concerned authorised officer or to any person duly authorised by it in this behalf within thirty days of the service of the order.
(2) If any person refuses or fails to comply with an order made under subsection (1), the authorised officer may take possession of the property and may, for that purpose, use such force as may be necessary.
(3) Notwithstanding anything contained in sub-section (2) the authorised officer may, for the purpose of taking possession of any money or property referred to in sub-section (1), requisition the service of any police officer to assist and it shall be the bounden duty of such officer to comply with such requisition.
20. Refund of confiscated money or property.
Where an order of confiscation made under section 15 is modified or annulled by the High Court in appeal or where the person affected is acquitted by the Special Court, the money or property shall be returned to the person affected and in case it is not possible for any reason to return the property, such person shall he paid the price thereof including the money so confiscated with interests at the rate of twelve per cent per annum thereon calculated from the date of confiscation.
CHAPTER IV
MISCELLANEOUS
21. Notice or order not to be invalid for error in description.
No notice issued or served, no declaration made, and no order passed, under this Act shall be deemed to be invalid by reason of any error in the description of the property or person mentioned therein if such property or person is identifiable from the description so mentioned.
22. Act to be in addition to any other law.
The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this Act, be instituted against him.
23. Bar to other proceedings.
Save as provided in sections 9 and 18 and notwithstanding anything contained in any other law, no suit or other legal proceedings shall be maintainable in any Court in respect of any money or property ordered to be confiscated under section 15.
24. Protection of action taken in good faith.
No suit, prosecution or other legal proceedings shall lie against any person for anything in good faith done or intended to be done in pursuance of this Act.
25. Power to make Rules.
The State Government may, by notification, make such rules, if any, as it may deem necessary for carrying out the purposes of this Act.
26. Notifications under Section 3 and declarations under Section 5 to be laid.
Every notification made under sub-section (1) of section 3 and every declaration made under sub-section (1) of section 5 shall he laid, as soon as maybe after they are made, before the State Legislature.
27. Overriding effect.
Notwithstanding anything in the Prevention of Corruption Act, 1988 and Criminal Law Amendment Ordinance, i944 or any other law for the time being in force, the provisions of this Act shall prevail in case of any inconsistency.
