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
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
