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     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

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

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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

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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

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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

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conviction. This is by virtue of clause 31 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

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.  

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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

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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

2

  (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

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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 witness3.

3

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

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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.       

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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

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