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L. A. BILL No. XXIX OF 2018.

A BILL

to provide for confiscation of property of any public servant who has

committed an offence of criminal misconduct ; and matters

connected therewith or incidental thereto.

WHEREAS, it is expedient to provide for confiscation of property of any

public servant who has committed an offence of criminal misconduct; and

matters connected therewith or incidental thereto; it is hereby enacted in

the Sixty-ninth Year of the Republic of India as follows :—

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MAHARASHTRA LEGISLATURE SECRETARIAT

The following Bill was introduced in the Maharashtra Legislative Assembly on the

27th March 2018 is published under Rule 117 of the Maharashtra Legislative Assembly

Rules :—

RNI No. MAHBIL /2009/40123

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CHAPTER I

PRELIMINARY

1.

(1) This Act may be called the Maharashtra Confiscation of

Disproportionate Property (of Public Servants) Act, 2018.

(2) It shall extend to the whole of the State of Maharashtra.

2.

(1) In this Act, unless the context otherwise requires,—

(a) “Corruption Act” means the Prevention of Corruption Act, 1988 ;

(b) “Designated Court” means the Court designated by the

Government by notification in the Official Gazette, for the purposes of

this Act ;

(c) “offence” means the offence of criminal misconduct as specified

in clause (e) of sub-section (1) of section 13 of the Corruption Act either

independently or in combination with any other provisions of the said

Act or any provision of the Indian Penal Code or any other Act ;

(d) “Ordinance” means the Criminal Law (Amendment) Ordinance,

1944 ;

(e) “public servant” means public servant as defined in clause (c) of

section 2 of the Corruption Act ;

(f) “Special Judge” means the Special Judge appointed by the

Government under section 3 of the Corruption Act.

(2) Words and expressions used herein but not defined in this Act shall

have the same meanings respectively assigned to them in the Ordinance and

the Corruption Act.

CHAPTER II

CONFISCATION OF PROPERTY

3.

(1) Notwithstanding anything contained in any other law for the

time being in force, where the State Government on the basis of a report

from the Director General, Anti-Corruption Bureau, Maharashtra State, duly

approved by the Committee under the Chairmanship of Additional Chief

Secretary Home Department along with Director General, Anti-Corruption

Bureau and Secretary of the concerned Administrative Department as

member, has reasonable ground to believe that, any public servant who has

held or is holding public office or has been a public servant, committed the

offence, and has assets in excess of 50% of his known sources of income or

rupees ten lakh, whichever is more, the State Government may, authorize

the officer of the rank of Deputy Superintendent of Police, for making an

application to the Designated Court, for confiscation of the money and

property of such public servant under this Act.

(2) Notwithstanding anything contained in any other law for the time

being in force, in cases where, the Government has initiated action for

attachment of money and property of public servant under the provisions of

the Corruption Act and the Ordinance, before the commencement of this

Act, the State Government may, take action for confiscation of the money

and property of such public servant under the provisions of sub-section (1),

before the Designated Court.

Short title and

extent.

Definitions.

Application

for

confiscation of

property.

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(3) An application under sub-sections (1) and (2),—

(a) shall be accompanied by affidavit, stating the grounds on which

the belief that the said person has committed the offence, the amount of

money and estimated value of other property believed to have been

procured by means of the offence ; and

(b) shall also contain any information available as to the location for

the time being of any such money and other property, and shall, if

necessary, give other particulars considered relevant to the context.

4.

(1) Upon receipt of an application under section 3, the Designated

Court has reasonable grounds so to do, it shall serve a notice upon such person

calling upon him within such time as may be specified in the notice, which

shall not be ordinarily less than sixty 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 property, the evidence on which he relies and other relevant

information and particulars, and to show cause as to why any of such money

or property or both, should not be declared to have been acquired by means

of the offence and be confiscated to the State Government.

(2) Where a notice under sub-section (1) to any person specifies any

money or property or both 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.

(3) A public notice shall be issued containing the particulars of the

properties to be confiscated. Any person may make an application before the

Designated Court specifying his interest in such property. The Designated

Court shall consider such application while deciding the matter.

(4) Notwithstanding anything contained in sub-section (1), the evidence,

information and particulars brought on record before the Designated Court,

by such person or the State Government, shall be open to rebuttal but the

rebuttal shall be confined to the trial for determination and adjudication of

guilt of the public servant by the Special Judge under the Corruption Act.

5.

Upon receipt of an application made under section 3, the Designated

Court shall, serve a notice upon the Registrar or Sub-Registrar of the

registration office in whose jurisdiction the property is situated. Thereafter,

the Registrar or Sub-Registrar shall not register any transfer of the said

property by any mode whatsoever, till the application filed under section 3

is finally decided.

6.

(1) Where the Designated Court is of the opinion that, there are

reasonable grounds to believe that some of the money or property or both

specified in the show cause notice has been acquired by such means of which

constitutes an offence, but it is not able to identify specifically such money or

property, then it shall be lawful for the Designated Court to record his findings

to the best of his judgment.

(2) Where the Designated Court records the findings under sub-section

(1), it shall declare that such money or property or both shall, subject to the

provisions of this Act, stand confiscated to the State Government free from

all encumbrances :

Notice for

confiscation.

Bar of

registration of

property.

Confiscation

of property in

certain cases.

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Provided that, if such person is ready to deposit the market value of the

property attached or confiscated with the Designated Court, such money or

property shall not be attached or confiscated.

(3) Every proceeding under this Act shall be disposed off within a period

of six months from the date of service of the notice under sub-section (1) of

section 4.

(4) The order of confiscation passed by the Designated Court shall not

be final unless confirmed by the High Court and till such time, such order is

so confirmed, the properties specified in such order of the Designated Court

under sub-section (2) shall remain attached.

(5) The order of confiscation passed under sub-section (2) shall subject

to the order passed in appeal, if any under section 9, be final and shall not be

called in question in any Court of law.

7.

The Government shall prescribe by rules the manner in which the

property confiscated under this Act shall be administered.

8.

Where, after the issue of a notice under sub-section (1) of section 4,

any money or property or both referred to in the said notice are transferred

by any mode whatsoever, such transfer shall, for the purposes of the

proceedings under this Act, be null and void.

9.

(1) Any person aggrieved by any order of the Designated Court, may

appeal to the High Court within thirty days from the date of order.

(2) Upon any appeal preferred under sub-section (1), the High Court

may, after giving such person an opportunity of being heard, pass such order

as it deems fit.

10.

(1) Where any property has been confiscated under sub-section (2)

of section 6, the Designated Court shall order such person as well as any

other person, who may be in possession of the money or property or both to

surrender or deliver possession thereof, to the Designated Court or to any

person duly authorized in this behalf, within thirty days of the service of the

order :

Provided that, the Designated Court on an application made in that behalf

and being satisfied that, such person is residing in the property in question,

may instead of dispossessing him immediately from the same, permit such

person to occupy it for a limited period to be specified on payment of market

rent to the State Government and thereafter, such person shall deliver the

vacant possession of the property to the Government.

(2) If any person refuses or fails to comply with an order made under

sub-section (1), the Designated Court 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 Designated

Court may, for the purpose of taking possession of any money or property or

both referred to in sub-section (1), requisition the services of any police officer

upto the rank of Deputy Superintendent of Police to assist it and it shall be

the bounden duty of such officer to comply with such requisition.

Administration

of confiscated

property.

Transfer to be

null and void.

Appeal.

Power to take

possession.

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11.

Where an order of confiscation made under sub-section (2) of section

6 is modified or annulled by the High Court during the process for

confirmation or in appeal or where such person is acquitted of the offences

under the Corruption Act, the money or property or both shall be returned

to such person and in case, it is not possible to return the property, such

person shall be paid the price thereof, including the money so confiscated.

CHAPTER III

MISCELLANEOUS

12.

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.

13.

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.

14.

Notwithstanding anything contained in the Criminal Law

(Amendment) Ordinance, 1944 and the Prevention of Corruption Act, 1988

or any other law for the time being in force, the provisions of this Act shall

prevail in case of any inconsistency.

15.

Save as provided in section 9, notwithstanding anything contained

in any other law for the time being in force, no suit or other legal proceedings

shall be maintainable in any Court in respect of any money or property or

both ordered to be confiscated under section 6.

16.

(1) The State Government may, by notification in the Official

Gazette, make rules to carry out the purposes of the Act.

(2) Every rule made under this Act shall be laid, as soon as may be, after

it is made, before each House of the State Legislature, while it is in session

for a total period of thirty days, which may be comprised in one session or in

two or more successive sessions, and if, before the expiry of the session in

which it is so laid or the session immediately following, both Houses agree in

making any modification in rule or both Houses agree that the rule should

not be made, and notify their decision to that effect in the Official Gazette,

the rule shall, from the date of publication of such decision in the Official

Gazette, have effect only in such modified form or be of no effect, as the case

may be; so, however, that any such modification or annulment shall be without

prejudice to the validity of anything previously done or omitted to be done

under that rule.

17.

No suit, prosecution or other legal proceeding shall lie against the

Government or any officer or employee of the Government, for anything done

or purported to have been done in good faith, in pursuance of the provisions

of this Act or the rules made thereunder.

Refund of

confiscated

money or

property.

Notice or

order not to be

invalid for

error in

description.

Act to be in

addition to

any other law.

Overriding

effect.

Bar to other

proceedings.

Power to

make rules.

Protection of

action taken

in good faith.

38 of

1944.

49 of

1988.

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18.

(1) If and difficulty arises in giving effect to the provisions of this

Act, the Government may, as occasion arises, by an order, published in the

Official Gazette, do anything, not inconsistent with the provisions of this

Act, which appears to it to be necessary or expedient for the purposes of

removing the difficulty :

Provided that, no such order shall be made after the expiry of a period

of two years from the date of commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be,

after it is made, before each House of the State Legislature.

Power to

remove

difficulties.

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STATEMENT OF OBJECTS AND REASONS

Complaints against the public servant regarding corruption, misuse of

the post for benefits other than legal remuneration, and accumulation of

wealth more than known sources of income are dealt with as per the

provisions of the Prevention of Corruption Act, 1988 (49 of 1988) and the

Criminal Law (Amendment) Ordinance, 1944 (38 of 1944). The Prevention of

Corruption Act, 1988 provides for appointment of special judges to try the

offences punishable under the said Act and punishment for such offences ;

and the Criminal Law (Amendment) Ordinance, 1944 provides for attachment

of property of the scheduled offences, it includes certain offences punishable

under the Indian Penal Code (45 of 1860) and the Prevention of Corruption

Act, 1988.

2.

As per the provisions of the said Criminal Law (Amendment)

Ordinance, 1944, the assets are only attached and cannot be confiscated. The

attached assets are in the custody of the public servant, he can enjoy the

property and its relevant benefits up to the end of all court proceedings.

3.

There are sufficient grounds to believe that, the assets of the public

servant are vastly disproportionate of their known sources of income. It is,

therefore proposed, where the State Government on the basis of a report

from the Director General, Anti-Corruption Bureau, Maharashtra State, duly

approved by the Committee under the Chairmanship of Additional Chief

Secretary, Home Department alongwith Director, Anti-Corruption Bureau

and Secretary of the concerned administrative Department as members, has

reasonable ground to believe that, any public servant, who has held or is

holding public office or has been a public servant, committed the offence, and

has assets in excess of 50% of his known sources of income or rupees ten

lakh, whichever is more, the State Government may, authorize the officer of

the rank of Deputy Superintendent of Police, for making an application to

the Designated Court, for confiscation of the money and property of such

public servant. It is also proposed to constitute Designated Court to initiate

the proceeding of confiscation, which will be separate from the trial for the

offence. The Government considers it expedient to enact a special law for

confiscation of the money and property of the public servant who has

committed the offence of criminal misconduct as specified in clause (e) of

sub-section (/) of section 13 of the Prevention of Corruption Act, 1988.

4.

The salient features of the Bill are broadly as follows :—

(a) appointment of Designated Court ;

(b) confiscation of disproportionate property of public servant ;

(c) transfer of such property pending the proceeding to be null and

void ;

(d) time limit for speedy disposal of cases ;

(e) refund of confiscated money or property, if person is acquitted.

5.

The Bill is intended to achieve the above objectives.

Mumbai,

DEVENDRA FADNAVIS,

Dated the 26th March 2018.

Chief Minister.

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MEMORANDUM REGARDING DELEGATED LEGISLATION

The Bill involves the following proposals for delegation of legislative

power, namely :—

Clause 2(b).—Under this clause, power is taken to the State Government

to designate a Court by notification in the Official Gazette, for the purposes

of the Act.

Clause 7.—Under this clause, power is taken to the State Government

to make rules to provide the manner in which the property confiscated under

the Act shall be administered.

Clause 16(1).—Under this clause, power is taken to the State

Government, to make rules, by notification in the Official Gazette, to carry

out the purposes of the Act.

Clause 18(1).—Under this clause, power is taken to the State Government,

to issue within a period of two years from the date of commencement of this

Act an order published in the Official Gazette, for removal of difficulties, if

any, that may arise in giving effect to the provisions of the Act.

2.

The above-mentioned proposals for delegation of legislative power

are of normal character.

Vidhan Bhavan :

DR. ANANT KALSE,

Mumbai,

Principal Secretary,

Dated the 27th March 2018.

Maharashtra Legislative Assembly.

ON BEHALF OF GOVERNMENT PRINTING, STATIONERY AND PUBLICATION, PRINTED AND PUBLISHED BY SHRI PARSHURAM JAGANNATH GOSAVI, PRINTED

AT GOVERNMENT CENTRAL PRESS, 21-A, NETAJI SUBHASH ROAD, CHARNI ROAD, MUMBAI 400 004 AND PUBLISHED AT DIRECTORATE OF GOVERNMENT PRINTING,

STATIONERY AND PUBLICATION, 21-A, NETAJI SUBHASH ROAD, CHARNI ROAD, MUMBAI 400 004, EDITOR : SHRI PARSHURAM JAGANNATH GOSAVI.