ACAUT proposal for Nagaland Lokayukta Bill 2017

Section-24: Search and Seizure.—

(1) If the Lokayukta has reason to believe that any document which, in its opinion, shall be useful for, or relevant, to any investigation under this Act, are secreted in any place, it may authorize any agency to whom the investigation has been given to search for and to seize such documents.

(2) If the Lokayukta is satisfied that any document seized under sub-section (1) may be used as evidence for the purpose of any investigation under this Act and that it shall be necessary to retain the document in its custody or in the custody of such officer as may be authorized, it may so retain or direct such authorized officer to retain such document till the completion of such investigation:

Provided that where any document is required to be returned, the Lokayukta or the authorized officer may return the same after retaining copies of such documents duly authenticated.

Section-25: Lokayukta to have powers of civil court in certain cases.—

(1) Subject to the provisions of this section, for the purpose of any preliminary enquiry, the Investigation Wing of the Lokayukta shall have all the powers of a civil court, under the Code of Civil Procedure, 1908, while trying a suit in respect of the following matters, namely:–

(i) summoning and enforcing the attendance of any person and examining him on oath;

(ii) requiring the discovery and production of any document;

(iii) receiving evidence on affidavits;

(iv) requisitioning any public record or copy thereof from any court or office;

(v) issuing commissions for the examination of witnesses or documents:

Provided that such commission, in case of a witness, shall be issued only where the witness, in the opinion of the Lokayukta, is not in a position to attend the proceeding before the Lokayukta; and

(vi) such other matters as may be prescribed.

(2) Any proceeding before the Lokayukta shall be deemed to be a judicial proceeding within the meaning of section 193 of the Indian Penal Code.

Section 25-A Power to Punish for Contempt

The Lokayukta and Upa-Lokayuktas shall have the powers to punish for contempt as provided by the Contempt of Courts Act, 1971.

Section-26: Power of Lokayukta to utilize services of officers of the State Government.—

(1) The Lokayukta may, for the purpose of conducting any preliminary enquiry or investigation, utilize the services of any officer or organization or investigating agency of the State Government.

(2) For the purpose of preliminary enquiry or investigation into any matter pertaining to such enquiry or investigation, any officer or organization or agency whose services are utilized under sub-section (1) may, subject to the superintendence and direction of the Lokayukta–

(a) summon and enforce the attendance of any person and examine him;

(b) require the discovery and production of any document; and

(3) The officer or organization or agency whose services are utilized under sub-section (2) shall inquire or, as the case may be, investigate into any matter pertaining to the preliminary enquiry or investigation and submit a report thereon to the Lokayukta within such period as may be specified by it in this behalf.

Section-27: Provisional attachment of assets.—

(1) Where the Lokayukta or any officer authorized by it in this behalf, has reason to believe, the reason for such belief to be recorded in writing, on the basis of material in his possession, that–

(a) any person is in possession of any proceeds of corruption;

(b) such person is accused of having committed an offence relating to corruption; and

(c) such proceeds of offence are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of offence, the Lokayukta or the authorized officer may, by order in writing, provisionally attach such property for a period not exceeding ninety days from the date of the order, in the manner provided in the Second Schedule to the Income Tax Act, 1961 and the Lokayukta and the officer shall be deemed to be an officer under sub-rule (e) of rule 1 of that Schedule.

(2) The Lokayukta or the officer authorized in this behalf shall, immediately after attachment under sub-section (1), forward a copy of the order, alongwith the material in his possession, referred to in that sub-section, to the Special Court in a sealed envelope, in the manner as may be prescribed and such Court may extend the order of attachment and keep such material for such period as the Court may deem fit.

(3) Every order of attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that sub-section or after the expiry of the period as directed by the Special Court under sub-section (2).

(4) Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) or sub-section (2), from such enjoyment.

Explanation.— For the purposes of this sub-section, “person interested”, in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property.

Section-28: Confirmation of attachment of assets.—

(1) The Lokayukta, when it provisionally attaches any property under sub-section (1) of section 27 shall, within a period of thirty days of such attachment, direct its Prosecution Wing to file an application stating the facts of such attachment before the Special Court and make a prayer for confirmation of attachment of the property till completion of the proceedings against the public servant in the Special Court.

(2) The Special Court may, if it is of the opinion that the property provisionally attached had been acquired through corrupt means, make an order for confirmation of attachment of such property till the completion of the proceedings against the public servant in the Special Court.

(3) If the public servant is subsequently acquitted of the charges framed against him, the property, subject to the orders of the Special Court, shall be restored to the concerned public servant alongwith benefits from such property as might have accrued during the period of attachment.

(4) If the public servant is subsequently convicted of the charges of corruption, the proceeds relatable to the offence under the Prevention of Corruption Act, 1988 shall be confiscated and vest in the State Government free from any encumbrance or leasehold interest excluding any debt due to any Bank or financial institution.

Explanation.—For the purposes of this sub-section, the expressions “bank”, “debt” and “financial institution” shall have the meanings respectively assigned to them in clauses (d), (g) and (h) of section 2 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.

Section-29: Confiscation of assets, proceeds, receipts and benefits arisen or procured by means of corruption in special circumstances.—

(1) Without prejudice to the provisions of sections 27and 28, where the Special Court, on the basis of prima facie evidence, has reason to believe or is satisfied that the assets, proceeds, receipts and benefits (by whatever name called) have arisen or procured by means of corruption by the public servant, it may authorize the confiscation of such assets, proceeds, receipts and benefits till his acquittal.

(2) Where an order of confiscation made under sub-section (1) is modified or annulled by the High Court or where the public servant is acquitted by the Special Court, the assets, proceeds, receipts and benefits, confiscated under sub-section (1) shall be returned to such public servant, and in case it is not possible for any reason to return the assets, proceeds, receipts and benefits, such public servant shall be paid the price thereof including the money so confiscated with interest at the rate of five per cent per annum thereon calculated from the date of confiscation.

Section-30: Power of Lokayukta to recommend transfer or suspension of public servant connected with allegation of corruption.—

(1) Where the Lokayukta while making a preliminary enquiry into allegations of corruption, is prima facie satisfied, on the basis of evidence available,–

(i) that the continuation of the public servant referred to in clause (d) or clause (e) or clause (f) of sub-section (1) of section 13 in his post while conducting the preliminary enquiry is likely to affect such preliminary enquiry adversely; or

(ii) such public servant is likely to destroy or any way temper with the evidence or influence witnesses;

Then the Lokayukta may recommend to the State Government for transfer or suspension of such public servant from the post held by him till such period as may be specified in the order.

(2) The State Government shall accept the recommendation of the Lokayukta made under sub-section (1), except for the reasons to be recorded in writing in a case where it is not feasible to do so for administrative reasons.