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Tuesday, July 12, 2016

Conviction against Dead Person - It is too well settled that a prosecution cannot continue against a dead person. A fortiori a criminal court cannot continue proceedings against a dead person and find him guilty. Such proceedings and the findings are contrary to the very foundation of criminal jurisprudence. In such a case the accused does not exist and cannot be convicted. Consequently, the learned District Judge committed a gross error of law in acting upon such a finding and treating Ramachandraiah as guilty of such offences while making the order of attachment and while confirming the said order of attachment of properties. A criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and phantasy. It is incomprehensible, therefore, that such an application could have been made in regard to a dead person who obviously cannot be said to be ordinarily resident or carrying on business anywhere. There is no legal provision which enables continuance of prosecution upon death of the accused.In the first place, though the accused had died, the trial court proceeded with the trial and recorded a conviction two years after his death. Then, this null and void conviction was used as a basis for making an attachment of his properties before the Sessions Court. Astonishingly, all applications succeeded, the attachment was made absolute and over and above all, the High Court upheld the attachment. The orders of the Criminal Court vis-a-vis Ramachandraiah are illegal and liable to be set aside.

                                                   REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1596 OF 2011



U. SUBHADRAMMA & ORS.                                    ..APPELLANTS

                                     VS


STATE OF A.P. REP.BY PUB. PROSECUTOR & ANR.    ..RESPONDENTS




                                 1 JUDGMENT



S. A. BOBDE, J.


      The appellants being legal representatives of one  Ramachandraiah  who
was accused of offences under Sections 409, 468 read  with  Section  471  of
the Indian Penal Code, have filed  this  appeal  against  the  Judgment  and
order dated 28-6-2006 of the High  Court  of  Andhra  Pradesh  at  Hyderabad
dismissing their petition under Section 482 of the Criminal Procedure  Code.
 Ramachandraiah, since deceased, who was the husband of Appellant  No.1  and
father of Appellant   Nos. 2 and  3,  was  prosecuted  under  the  aforesaid
sections in respect of  misappropriation  of  funds.  He  was  charged  with
misappropriation of an amount of Rs. 6,57,355.90  during  the  period  31-7-
1987 to 29-6-1988 along with him one  Subbarayudu  was  charged  as  Accused
No.2. In October, 1991, U. Ramachandraiah  expired  during  the  trial.  The
trial court  acquitted  the  Accused  No.2  Subbarayudu  by  Judgment  dated
25.10.1993. However, the trial court observed  on  the  basis  of  oral  and
documentary evidence that Ramachandraiah  alone  committed  the  offence  as
alleged by the prosecution. Further, that there was no oral  or  documentary
evidence placed before the Court to  show  that  Subbarayudu  the  surviving
accused assisted  Ramachandraiah  in  committing  the  alleged  offence.  In
effect, the trial court found Ramachandraiah responsible  for  the  offences
though he could not be adjudged guilty since he had expired.

Proceedings under the Criminal Law Amendment Ordinance against the  property
of the deceased

2.    In 1997, the  State  moved  an  application  under  the  Criminal  Law
Amendment Ordinance, 1944 (Ordinance No. XXXVIII of 1944) for attachment  of
property of the appellant under the criminal  law.   Thereon,  the  District
Judge passed an order of interim attachment under Clause 4 of the  ordinance
on the basis that Ramachandraiah has committed  the  scheduled  offences  or
that he has procured money or the property in question from the proceeds  of
such offence. The District Judge issued notice calling upon  the  appellants
to show cause why the order of attachment should not be  made  absolute.  In
this order, the District Judge observed that according to the state as  many
as  30  items  mentioned  in  the  schedule  were  acquired  by   the   said
Ramachandraiah either in his own name or his wife's name or in the names  of
his sons due to illegal amounts drawn by him and a case  was  filed  against
Ramachandraiah  as  accused  No.1  and  Subbarayudu  as  accused  no.2.  The
District Judge further observed that the trial court i.e.  first  Additional
District Munsif, Cuddapah found Ramachandraiah had committed the offence  as
alleged  by  the  prosecution  and,  therefore,  the   said   Ramachandraiah
committed the offence. It was observed by the learned  District  Judge  that
Ramachandraiah had been found to  have  prepared  bills  in  the  fictitious
names of 21 lecturers during the relevant period and had drawn cash  on  the
basis of the pay bills including the bogus bills since May  1991  and  drawn
about Rs.38,00,000/- to Rs.40,00,000/-.
3.    Thereafter on 1-10-2002, the learned District Judge heard  both  sides
and made the order of interim conditional attachment absolute.  He  observed
that the High Court has refused to  interfere  with  the  order  of  interim
conditional attachment and though no counter affidavit  had  been  filed  by
the appellants, the learned District  Judge  observed  that  the  appellants
have failed to prove that the properties as mentioned in  the  schedule  are
the self-acquired properties of U. Ramachandraiah and, therefore, the  order
is being made absolute.
4.    The appellants then challenged  the  order  of  the  learned  District
Judge making an interim attachment absolute  by  way  of  a  petition  under
Section 482 of the Criminal Procedure Code.  The learned Single  Judge  held
that the amount misappropriated is 6,57,355.90; strangely, on the  basis  of
the  charge  sheet.   The  learned   Single   Judge   also   observed   that
Ramachandraiah who alone had committed  the  offence  and  not  Subbarayudu,
must be taken to have misappropriated the said amount since the Trial  Court
held  the  latter  to  be  innocent.   Against  the  aforesaid  order,   the
appellants have preferred this appeal.
5.    Learned Senior counsel for the appellants submitted  that  the  scheme
of the Criminal Law Amendment Ordinance, 1944 does not permit  the  District
Judge to confirm any attachment of the property though  the  criminal  court
has not validly  convicted  and  found  the  accused  or  the  person  whose
property is sought to be attached as guilty. Learned counsel submitted  that
in this case, it was not possible for the criminal court to  have  convicted
or found Ramachandraiah guilty since he expired in 1991  during  the  trial.
In fact, according to the appellants, no application  for  attachment  could
have  been  made  under  these  circumstances.  Learned  counsel   for   the
respondents strongly opposed the prayer and submitted  that  the  appellants
may not to be allowed to retain property obtained by  ill-gotten  means  and
it was legal for the learned District Judge to  have  passed  the  order  of
attachment in respect of such property  which  was  admittedly  the  subject
matter of the charge-sheet. It has, therefore, become necessary  for  us  to
examine whether the property of  a  person  which  was  merely  case  of  an
offence of  misappropriation  but  who  died  during  the  pendency  of  the
criminal trial can be attached in the hands  of  his  legal  representatives
under the provisions of Criminal Law Amendment Ordinance, 1944.
6.    As far as making the application for attachment, we find that the  law
authorises the State Government to make  such  an  application  even  though
proceedings against the person may not yet have resulted  in  a  conviction.
This is by virtue of clause 3[1] which empowers the Government to  authorise
making of such an application to the District Judge where it has  reason  to
believe that any person has committed any  scheduled  offence.  But  however
clause 3 requires  the  Government  to  make  such  an  application  to  the
District Judge within the  local  limits  of  whose  jurisdiction  the  said
person ordinarily resides or carries on  business;  thus  clearly  requiring
the existence of such a person. It excludes the possibility  of  proceedings
against a dead person. Clause 4 of the act empowers the  District  Judge  to
pass an order of ad interim attachment on prima facie grounds for  believing
that the person in respect of whom the application  is  made  has  committed
any scheduled offence or has procured any money or  property  thereby.  Sub-
clause 2 requires the District Judge to issue a notice,  presumably  at  the
address where the person ordinarily resides or  carries  on  business  (vide
clause 3) along with copies of the order and the application etc.  Clause  5
provides for an investigation of objections to the attachment who have  been
served with notices under clause  4.  Sub-clause  3  empowers  the  District
Judge to pass an order making the ad interim order  of  attachment  absolute
or varying it by releasing a portion of  the  property  or  withdrawing  the
order. Clause 13 requires the Government to inform the District Judge  about
the status of the  criminal  proceedings.  It  requires  the  Government  to
furnish the District Judge with a copy of  the  judgment  or  order  of  the
trial court and with copies of  the  judgment  or  orders,  if  any  of  the
appellate or revisional  court  thereon.  Sub-clause  2  mandates  that  the
District  Judge  shall  forthwith  withdraw  any  orders  of  attachment  of
property made in connection with the offence if (a)  cognizance  of  alleged
scheduled offence has not been taken or (b) where  the  final  judgment  and
orders of the criminal court is one of acquittal.   While,  this  clause  is
clear that the orders of attachment must be withdrawn if cognizance  of  the
offence has not been taken or there has been an  acquittal;  the  clause  is
silent as to the effect of abatement of  prosecution.  It  is  due  to  this
silence that it is contended by the State Government in this case  that  the
orders of attachment could not only have been continued but could also  have
been confirmed.  It is not possible for us to accept the submission. If  the
law requires  that  the  orders  of  attachment  should  be  withdrawn  upon
acquittal it stands to reason that such orders must be  withdrawn  when  the
prosecution abates or cannot result in a conviction due to the death of  the
accused, whose property is attached.  Concept of abatement of a trial  could
be subsumed in the  clause  where  the  final  judgment  and  order  of  the
Criminal Court is one of acquittal. In  this  context,  the  presumption  of
innocence of an accused till he is convicted  must  be  borne  in  mind  and
there is no reason to consider this presumption to have vaporized  upon  the
death of an accused. It may be noted that this  Court  has  time  and  again
reiterated  the  presumption  of  innocence  of  an  accused  till   he   is
convicted.[2]
7.    As far as the circumstances of this case are concerned, we  find  that
there has been a gross mis-carriage of justice  at  several  steps.  In  the
first place, the finding of the trial court that  Ramachandraiah  was  alone
responsible for the offences is completely vitiated as null and  void  since
Ramachandraiah had admittedly died on the date this  finding  was  rendered.
It is too well settled that a prosecution cannot  continue  against  a  dead
person. A fortiori a criminal court cannot continue  proceedings  against  a
dead person and find him guilty.  Such  proceedings  and  the  findings  are
contrary to the very foundation of criminal jurisprudence.  In such  a  case
the accused does not  exist  and  cannot  be  convicted.  Consequently,  the
learned District Judge committed a gross error of law in acting upon such  a
finding and treating Ramachandraiah as guilty of such offences while  making
the order of attachment and while confirming the said  order  of  attachment
of properties.
8.    In such circumstance, the courts below erred in recording the  finding
that  Appellant  No.1  had  committed  the  offence  as   alleged   by   the
prosecution.  Further, finding recorded by the learned Single Judge  of  the
High Court that Appellant No.1 alone  had  committed  the  offence  and  nor
Appellant No.2, must be taken to have misappropriated  the  said  amount  is
perverse.
      “A criminal trial is not like a fairy tale  wherein  one  is  free  to
give flight to one’s imagination and phantasy.  It concerns itself with  the
question as to whether the accused arraigned at the trial is guilty  of  the
crime with which he is charged ………..……  In arriving at the conclusion  about
the guilt of the accused charged with the commission of a crime,  the  court
has to judge the evidence by the yardstick of probabilities,  its  intrinsic
worthy and the animus of witness[3].


9.    The facts involved herein did not warrant  presumption  of  commission
of offence by Appellant No.1 and thus the findings recorded  by  the  courts
below are not tenable.

10.   In fact, we find that  the  learned  District  Judge  could  not  have
proceeded with the  attachment  proceedings  at  all  since  the  attachment
proceedings were initiated by the State against Ramachandraiah under  clause
3 of the Criminal Law Amendment Ordinance,  1944,  who  was  actually  dead.
Clause 3 contemplates that such an application must be made to the  District
Judge within  the  local  limits  of  whose  jurisdiction  the  said  person
ordinarily resides or carries on business, in respect of property which  the
State Government believes the said person to have procured by means  of  the
offences. It is incomprehensible, therefore, that such an application  could
have been made in regard to a dead person who obviously cannot  be  said  to
be ordinarily resident or carrying on business anywhere.  There is no  legal
provision which  enables  continuance  of  prosecution  upon  death  of  the
accused.  We must record that the  proceedings  and  the  decisions  of  the
courts below are disturbing, to say the least.  In the first  place,  though
the accused had died, the trial court proceeded with the trial and  recorded
a  conviction  two  years  after  his  death.   Then,  this  null  and  void
conviction was used as a basis for making an attachment  of  his  properties
before the Sessions Court. Astonishingly, all  applications  succeeded,  the
attachment was made absolute and over and above all, the High  Court  upheld
the attachment.
11.   The orders of the Criminal Court vis-a-vis Ramachandraiah are  illegal
and liable to be set aside. We also  find  that  the  impugned  judgment  in
appeal is unsustainable and is liable to be set aside.  The  orders  of  the
Courts below are accordingly set aside. The appeal succeeds.



                                      .....................................J
                                                                (S.A. BOBDE)




                                   ........................................J

                                                               (AMITAVA ROY)
NEW DELHI,
4TH JULY, 2016
-----------------------
[1]
      1.    3. Application for attachment of property:-

      (1) Where the [State Government or as the case  may  be,  the  Central
Government] has reason to believe that any  person  has  committed  (whether
after the commencement of this Ordinance or not) any scheduled  offence  the
[State Government may, whether or not any Court has taken cognizance of  the
offence, authorise the making  of  an  application  to  the  District  Judge
within the local limits of whose jurisdiction  the  said  person  ordinarily
resides or carries on business, for attachment,  under  this  Ordinance,  of
the money or other property which the [State Government, or as the case  may
be, the Central Government] believes the said person  to  have  procured  by
means of the offence, or if such money or property cannot for any reason  be
attached, of other property of the said person of value as nearly as may  be
equivalent to that of the aforesaid money or other property.

      [Amended by A.O.1950 & again by Prevention of Corruption Act, 1988]

      (2) The provisions of Order XXVII of the First Schedule  to  the  Code
of Civil Procedure, 1908,  shall  apply  to  proceedings  for  an  order  of
attachment under this Ordinance as they apply to suits by the [Government].

      (3) 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 any scheduled 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 furnish-

      [Added by Prevention of Corruption Act, 1988]


(a) any information available as to the location for the time 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;


(b) the names and addresses of any other person believed to have  or  to  be
likely to claim, any interest or title in the property of the said person.



[2]


[3]      (1955) 2 SCR 1140 at page 1195
         (1963) 3 SCR 749 at page 766
         (2002) 7 SCC 317 at para 8
         (2005) 5 SCC 294 at para 35
         (2015) 3 SCC 724 at paras 12 and 17
[4]


[5] State of Punjab v.Jagbir Singh,Baljit Singh and Karan Singh,AIR 1973 SC
2407

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