Supreme Court of India
RAVI SINHA & ORSversusTHE STATE OF JHARKHAND
- Citation
- 2017 INSC 1006
- Decided
- 5 October 2017
- Disposal
- Dismissed
- Bench
- A K SIKRI
Holding
The attachment orders made absolute under the Criminal Law (Amendment) Ordinance, 1944 are valid and cannot be set aside, as Section 13 allows disposal of attached property even when proceedings are pending and the Court lacks jurisdiction under Article 136 to interfere.
Summary
The case concerned attachment of properties under the Criminal Law (Amendment) Ordinance, 1944 in a large‑scale fraud involving the father of the appellants, who died before trial, and his son Ravi Sinha, who was convicted in one case and faced trial in another. The State sought to make the interim attachment orders absolute. The appellants argued that attachment could not continue after the father's death and that Section 12 of the Ordinance could not be invoked post‑judgment, seeking relief under Article 136. The Supreme Court held that prosecution cannot continue against a deceased accused, but the properties already attached, now in the hands of a surviving legal representative who is himself under trial, could remain attached and be made absolute. Section 13 authorises disposal of attached property even while criminal proceedings are pending, and Section 12 must be invoked before judgment, which was not done. Consequently, the Court found no ground to interfere with the High Court and Judicial Commissioner’s orders and dismissed the appeals.
Issues considered
- Whether attachment orders under the Criminal Law (Amendment) Ordinance, 1944 can be made absolute after the death of the accused father.
- Whether Section 12 of the Ordinance can be invoked after a judgment has been pronounced and whether lack of findings on attached property precludes further orders.
- Whether Section 13 permits disposal of attached property while criminal proceedings are still pending.
- Whether the Supreme Court can entertain a petition under Article 136 to set aside the High Court and Judicial Commissioner’s orders.
Legislation cited
- Constitution of Indias. 136
- Criminal Law Amendment Ordinance, 1944s. 12, s. 13, s. 3, s. 4
Subjects
attachment of propertycriminal proceduredeath of accusedSection 12Section 13Article 136Supreme Court reviewproperty forfeiturefodder scam
Judgment
[2017] 12 S.C.R. 913
RAVI SINHA & ORS .. A
v.
THE STATE OF JHARKHAND
(Criminal Appeal No. 1561 of2008)
OCTOBER 05, 2017 B
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.J
Criminal Law Ame111;iment Ordinance, 1944:
ss. 12 and 13 - Appellant:~ father-public servant involved in
criminal cases registered against various accused -Appellant himself C
involved in large number of cases - Accused persons in pursuance
of conspiracy had defrauded State Government to the tune of several
hundred crores - Proceedings undertaken under the 1944 Ordinance
- Application by State - Attachment of certain properties -
Subsequent~v attachments made absolute - Appeal thereagainst by
appellants, dismissed by the High Court - On appeal, held: D
Prosecution against appellants father could i10t have been continued
after his death and no guilt can be pronounced on him, he being
dead - However, the properties which were already under
attachment, having come in the hands of appellant as one of the
legal representatives, who has been convicted in a fodder scam E
case and is facing trial in another case, making attachment order
absolute, cannot be faulted with - Furthermore, against an order
of conviction, appeal is already pending in the High Court and in
one criminal case, trial is already pending against the accused in
which provisions of ss. 12 and 13 can still be resorted to - Thus, it
cannot be said that once a judgment is pronounced in a criminal F
case by the Court and if no findings have been recordec( with regard
to attached properties, no order can be passed with regard to
attached properties - It is not necessary to consider the extent of
amount found to be misappropriated by the appellant and computing
the value
.
of properties attached
. - These questions can be raised bv
. G
appellant in s. 13 proceedings or at the time ojjudgment in pending
trial by invoking s. 12 - In view thereof. interference by this Court
in exercise of its jurisdiction u/Art. 136 with the order of the High
Court and of the Judicial Commissioner in making the order of
attachment absolute, not called jor - Constitution of India - Art.
136. H.
913
914 SUPREME COURT REPORTS [2017] 12 S.C.R.
A s.4 - Several criminal cases registered by CBI against various
accused - Alleged fraud to the tune of several crores - Allegation
that one of the accused acquired movable and immovable assets in
his own name and in the name offamily and investment in the property
not from their own source of income - Proceedings undertaken under
B the 1944 Ordinance - Application by State - Attachment of certain
properties - Subsequently attachments made absolute - Appeal
thereagainst, dismissed by the High Court - Held: Perusal of s. 4
indicate that power to attach the money or other property alleged
to have been so procured is very much there - Section 4 provides
that "if it transpires that such money or other property is not
C available fbr attachment, such other property of the said person of
equivalent value as the District Judge may think fit - Thus, the
power can be exercised for attaching several properties to take
care of the amount which alleged to be defaulted- Thus, the proper~v
which was acquired in the year 1955 could have been attached -
Appf?!!ants 'plea to reappraise the evidence and record a finding
0
that the properties attached were purchased by them of their own
fiiiances need not be gone into 11/Art. 136 - Constitution of lndia -
Art. 136.
Dismissing the appeals, the Court
'HELD: Ll No proceedings under Criminal Law
Amendment Ordinance, 1944 can be undertaken against the
accused after his death and the prosecution cannot continue after
the death of an accused. There cannot be any dispute that after
death of appellant's father-SB, no prosecution could have been
conlinued against him, in fact after noticing his death, the charge
F sheet was not submitted by C.B.I. against SB. [Para 21] [925-A-B)
1.2 It is an admitted position that appellant-RS had been
convicted in the fodder scam case and in one case trial is already
going on. There being an order of conviction of RS and in other
case trial being underway making attachment order absolute
G cannot be faulted with. It is true that prosecution against SB could
not have been continued after his death and no guilt can be
pronounced on SB, he being dead. However, the properties which
were already under attachment, having come in the hands of
accused RS as one of the legal representatives, who has been
convicted in a fodder scam case and is facing trial in another case,
H
RAVI SINHA & ORS. v. THE STATE OF JHARKHAND 915
instant case is not a case where this Court can exercise its A
jurisdiction under Article 136 to interfere with the order of the
High Court and of the Judicial Commissioner in making the order
of attachment absolute. [Para 23] [926-A-D]
1.3 A perusal of Section 12(1) indicates that when the Court
in any criminal trial is represented that an .order of attachment of B
property has already been passed, the Court shall, if it is convicting
the accused, record a finding as fo the amount of money or value
of other property procured by the accused by means of the offence.
Thus, s.12(1) is to be invoked before the judgment is pronounced
and the Court is obliged to record a finding when it is represented
to the Court that an order of attachment of property has been C
passed. [Para 25] (929-8-C]
1.4 In the instant case against the order of conviction dated
12.06.2008, appeal is. already pending in the High Court. Thus,
criminal proceedings have not yet been terminated. Further, in
one criminal case, trial is already pending against the accused in D
which provisions of Sections 12 and 13 can still be resorted to.
Thus, it cannot be said that once a judgment is pronounced in a
criminal case by the Court and if no findings have been recorded
with regard to attached properties, no order can be passed with
regard to attached properties. Section 13 gives ample power to E
deal with attached properties after termination of criminal
proceedings. Appellants submitted that even accepting the
allegations against RS, the allegations centre around only to Rs.
9.75 lakhs and Rs. 2.95 lakhs in R.C. No. 39/1996; and that there
can be no justification for keeping the properties under attachment
when the allegations arc only upto the amount given above and F
further in the order granting bail, the appellant has already secured
the aforesaid amount. It is noticed that one more trial is still
pending against RS. It is not necessary to consider the extent of
amount which has been found to be misappropriated by RS and
computing the value of properties attached. These arc the a
questions which can very well be raised by the appellant RS in
Section 13 proceedings or at the time of judgment .in pending
trial by invoking Section 12 of the Ordinance, 1944. Since this
Court is confined to the only question that whether the attachment
order ought not to have been made absolute, and thus need not
H
916 SUPREME COURT REPORTS [2017) 12 S.C.R.
A go into this submission in detail or express any opinion, thus, the
order passed by the Jharkhand High Court dismissing the
criminal appeals filed by the appellant against order of Judicial
Commissioner making the attachment order absolute need no
interference in exercise of the jurisdiction under Article 136. [Para
27) [930-D-H; 931-A-B]
B
l.5 Earlier the interim attachment orders were made
absolute by Judicial Commissioner, which orders were set aside
by the High Court and the matter was remanded. After remand,
show-cause was given by the appellants which have. been
considered in detail as given by the Judicial Commissioner.
C Judicial Commissioner vidc order dated 13.10.2004 has referred
to the various evidences brought on the record including oral
evidence with regard to properties. After consideration of facts
and cvldcnces, the Judicial Commissioner found it a fit case to
make an attachment absolute. The High Court confirmed the said
D order. In so far as submissions of counsel for the appellants
regarding the property, which was purchased in 1955, counsel
for the State submitted that power to attach the property docs
not confine only to the properties acquired hy ill-gotten money
but to secure the property misappropriated, any property of the
accused can be attached. A perusal of Section ·4 indicate that
E . power to attach the money or other property alleged to have been
so procured is very much there. Further, section provides that
"if it transpires that such money or other property is not available
for attachment, such other property of the said person of
equivalent value as the District Judge may think fit ... " Thus, the
F power is not confined and the power can be exercised for attaching
several properties to take care of the amount which alleged to
be defaulted. Thus, the submission that the property which was
acquired in the year 1955 could not have been attached, cannot
be accepted. The appellants in the instant case virtually are
asking to reappraise the evidence and record a finding that the
G properties attached were purchased by them of their own
finances; which exercise need not be gone into for exercise of
. jurisdiction under Article 136 in facts and circumstances of the
instant case. [Para 29, 30) [931-E-H; 932-A-E]
H
RAVI SINHA & ORS. v. THE STATE OF JHARKHAND 917
State of Bihar & Anr. v. Ranchi Zila Samta Party A
& Anr.. (1996) 3 sec 682 : [1996) 3 SCR 663;
U. Subhadramma & Ors. v. State of Andhra Pradesh,
(2016) 7 SCC 797 : [2016) 3 SCR 469; State of
Jharkhand v. Laloo Prasad Yadav (2017) 8 SCC 1
[2017) 3 SCR 630 - referred to.
B
Case Law Reference
[1996) 3 SCR 663 referred to Para3
[2016) 3 SCR 469 referred to Para 13
[2017) 3 SCR 630 referred to Para 16 c
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1561 of2008. ·
From the Judgment and Order dated 21.06.2007 of the High Court
of Jharkhand at Ranchi in Cr. Appeal No. 307 of2001
D
WITH
Crl.A. Nos. 1521, 1542-1543 and 1558-1559 of2008.
K. V. Viswanathan, Guru Krishna Kumar, Sr. Advs. Amit Pawan,
Abhishek Amritanshu, Hassan Zubair Waris, Akshay Sinha, Akshat
Srivastava, Mukunda Rao Angara, Ms. Vrinda Bhandari, Anand Nandan,' E
Ujjwal Jain, Pranay Jain, D. N. Goburdhan, Advs. for the Appellants.
K. K. Venugopal, AG, Vibha Datta Makhija, Sr. Adv., Ms. Ranjana
Narayan, R. Balasubramanian, Prabhas Bajaj,Akshay Amritanshu, Ms.
Aaiti Sharma, Mukesh Kumar Maroria, Ms. Disha Vaish,AnkurTalwar,
Harish Vaidyanathan Shankar, Ms. Nisha Mohandas, B. Krishna Prasad, F
Anil K. Jha, Advs. for the Respondent.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. I. All these appeals arise out of
proceedings unde1taken under Criminal Law (Amendment) Ordinance, ·
1944, by which certain properties were attached on an application filed G
on behalf of the State, which attachments were subsequently made
absolute. Criminal appeals filed before the High Comt by the appellants
were dismissed leading to filing of these criminal appeals. Criminal
Appeal No. 1561 of 2008 and Criminal Appeal No. 1521 of 2008 have
H
918 SUPREME COURT REPORTS [2017] 12 S.C.R.
A been filed against the cominonjudgment dated 21 .06.2007 ofJharkhand ·
High Court dismissing two criminal appeals filed by the appellants.
2. Criminal Appeal Nos. 1542-1543 of2008 as well as Criminal
Appeal Nos. 1558-1559 of2008 have been filed against the common·
judgment dated 21.06.2007 of Jharkhand High Court by which two criminal
B appeals filed by appellants were dismissed.
Facts of Criminal Appeal No. 1561 of 2008 and Criminal Appeal
No. 1521 of 2008
3. This Court vi de its order dated 19.03. I 996 in State ofBi/tar &
Anr. Vs. Ranchi Zila Samta Party & Am., (1996) 3 SCC 682,
C entrusted a case of large-scale defalcation of public funds, fraudulent
transactions and falsification of accounts, to the tune of around Rs. 500
crores, which came to light in the Animal Husbandry Department of the
State ofBihar.Asimilar situation prevailed in the Education, Cooperation
and Fisheries Departments. It was agreed by alt the counsel in above
D case that an in-depth investigation is required to be made. The only
controversy between counsel on either side was whether the High Court,
in exercise of its power under Article 226, could take the investigation
away from the State police and entrust it to the Central Bureau of
Investigation (CBI).
E 4. The allegation in brief was that the large number of accused
persons in pursuance of a conspiracy defrauded Government ofBihar
(now Jharkhand) to the extent of several hundred crores during the period
1990 to 1994 on the basis of fake allotment letters purported to have
been issued by the Director, A.H. Department. for purchase of medicines.
Fake supplies were shown by the suppliers and money was withdrawn
F on the basis of fake allotment orders and the same was misappropriated
by the accused persons, suppliers, public servants and others. Several
criminal cases under Sections 120B, 409, 420, 467, 468, 471 and 472
with Sections 13(2) and 13( I)(c) & (d) of the Prevention of Corruption
Act, I 988 were registered.
G 5. One Dr. S.B. Sinha, who was a public servant, was found
involved in 41 criminal cases registered against various accused. Dr.
S.B. Sinha was father of Ravi Sinha, appellant No.I, appellant No.2
Nephew of Dr. S.B. Sinha, appellant No.3 wife of Dr. S.B. Sinha and
appellant No. 4 is wife of Ravi Sinha, appellant No. I. An application
H was filed by the State ofBihar before the Court of Judicial Commissioner,
RAVI SINHA & ORS. v. THE STATE OF JHARKHAND 919
[ASHOK BHUSHAN, J.]
Ranchi under Section 3 of Criminal Law (Amendment) Order, 1944, A
arraying Dr. S.B. Sinha as respondent No.l, the appellant No.l, Ravi
Sinha as respondent No.2, the appellant No. 2 as respondent No.4,
appellant No.3 as respondent No.5 and appellant No.4 as respondent
No.6 to the petition by which properties mentioned in Annexure-II to the
petition were to be attached. It was further prayed that the said
attachments be made absolute till final termination of the criminal B
proceedings after submission of charge-sheet, if µny, by the C.B.I. In
the application, it was mentioned that in the investigation by the C.B.I., it
has been found that Dr. S.B. Sinha was involved in 41 cases registered
and consequent to conspiracy, Government ofBihar was defrauded to
the tune ofRs.600 crores. C
6. Application was filed in RC No.31 (A)/96, in which it was stated
that money was misappropriated by the accused by causing wrongful
gains to themselves and the substantial po1tion of the money was procured
in obtaining various properties. Details of properties possessed by Dr.
S.B. Sinha through self and other respondents were mentioned in D
Annexure-II. In that application, it was further stated that it is apprehended
that Dr. S.B. Sinha, his wife, children and other respondents will withdraw
the amounts and dispose of the properties during the course of
investigation which is in an advanced stage. On the basis of said
application, an order was passed on 30.08.1996 by the Judicial
· Commissioner, Ranchi, by which the application was allowed for ad- E
interim attachment of the properties detailed in Annexure-II. It was
further directed that notice be issued to the opposite parties to show-
cause as to why the interim order of attachment be not made absolute.
Response to show-cause was shown by respondent Nos. 1, 3, 4 and 5 to
the application on 21.02.1997 and respondent Nos. 2 and 6 to the f
application on 26.11.1998/08.12.1998. The respondents also challenged
the jurisdiction of Judicial Commissioner, Ranchi. Dr. S.B. Sinha died
on 25.10.1999. Opportunity was granted by Judicial Commissioner to
produce evidence in support of show-cause given to the Judicial
Commissioner.
G
7. On 26.03.2001, a petition was filed by C.B.I. praying therein
that order of ad-interim attachment be made absolute. The respondent
Nos. 2 to 6 to the application did not participate in the proceedings before
the Judicial Commissioner, Ranchi. After April, 1999, various dates were
fixed by the Judicial Commissioner whereby several opportunities were
H
920 SUPREME COURT REPORTS [2017] 12 S.C.R.
A given to the respondents for adducing evidence. Since these opportunities
were not availed of by the respondents, Judicial Commissioner by an
order dated 03.05.200 I made the ad-interim attachment of properties
absolute. On a petition filed under Clause 9(2) of Ordinance for
appointment of a receiver to manage the attached prope1ties, the Judicial
B Commissioner passed an order on 12.06.2001 djrecting the C.B.I. to
suggest the names of competent persons for appointment of receiver.
Aggrieved by the orders dated 03.05.2001 and 12.06.200I, Criminal
Appeal Nos. 307 and310 of200I was filed by the appellants in the High
Court. The Division Bench of the High Court vide its judgment dated
21.06.2007 dismissed the criminal appeals. Aggrieved by the said
C . judgment, Criminal Appeal Nos. 156I of2008 and I521 of2008 has
been filed.
Criminal Appeal Nos. 1542-1543 of 2008 and Criminal Appeal
Nos. 1558-1559 of 2008
8. Several criminal cases were got registered by the C .B.I. against
D different accused persons including one Vijay Kumar Mallick. Vijay
Kumar Mallick was also an accused in R.C. Case No.28(A)/96, R.C.
Case No.32(A)/96 and R.C. Case No.33(A)/96. The alleged amount of
fraud in the said three cases was to the extent ofRs.24,69,60,090/- as
reported in the First Information Reports. An application was filed before
E the Judicial Commissioner, Ranchi by State ofBihar against Vijay Kumar
Mallick( as O.P. No.I), Smt. Koma! Mallick, (as O.P. No.2) and Sandeep
Mallick and three other persons. It was alleged in the applicatiol) that in
the course ofinvestigation, it bas transpired that Vijay Kumar Mallick is
involved in three cases being R.C. Case No. 28(A)/96, R.C. Case No.
32(a)/96 and R.C. Case No. 33(A)/96 in which prima facie the amount
F . defrauded is to the extent ofRs.24,69,60,090/-. It was further alleged
· that VijayKumar Mallick has acquired huge movable and immovable
assets in his own name and in the name of his wife and children and
others at different places. In Annexure-ll, the statement and details of ·
the properties was given. It was further stated that O.P. No. I and
G others have not invested in the properties from their own source of
income. Request was made in the application for issuing an ad-interim
order for attachment of properties. On 30.08.1996, the Judicial
Commissioner passed an ad-interim order attaching the properties as
per details given in Annexure-IT. The ad-interim order of attachment
was made absolute on 27.04.2001 and further order on 12.07.2001 was
H passed directing the C.B.I. to suggest names for appointment ofreceiver.
RAVI SINHA & ORS. v. THE STATE OF JHARKHAND 921
[ASHOK BHUSHAN, J.]
9. Respondent NOs. 2, 3 and 4 to the application had filed criminal A
appeals in the High Court of Jharkhand. The High Court of Jharkhand
vide its order dated 26.03.2003 set aside the orders passed by the Judicial
Commissioner and further directed the Judicial Commissioner to pass a
fresh order after hearing the parties. Show-cause was shown before
the Judicial Commissioner. The Judicial Commissioner after noticing B
the show-cause passed a detailed order dated 13. l 0.2004 making the
ad-interim order as an absolute. Vide order dated 18. l 0.2004, direction
was given for appointment of receiver to manage the attached properties.
By subsequent order dated 14.12.2004, Deputy Commissioner, Ranchi
was appointed as receiver.
10. Criminal appeals were filed against order dated 13.10.2004, c
18.10.2004 and 14.12.2004 being Criminal Appeal Nos. 193 l of 2004
and 694 of2005 before the Jharkhand High Court. The Division Bench
of the Jharkhand High Court dismissed both the appeals vide its judgment
dated 21.06.2007. Aggrieved by the said judgment Sandeep Malik has
filed Criminal Appeal Nos. 1542-1543 of 2008 and Kamal Malik has D
filed Criminal Appeal Nos. 1558-1559 of2008.
11. We have heard learned counsel for the appellants appearing
in these criminal appeals as well as learned counsel appearing for the
State of Jharkhand.
12. We first take up the Criminal Appeal Nos. 1561 of 2008 and E
1521 of2008 filed by Ravi Sinha & Ors. Shri K.V. Viswanathan, learned
senior counsel appearing for the appellants have raised various submissions
in support of the appeals. The foremost submission raised by Shri K.V.
Viswanathan is that Dr. S.B. Sinha, who was allegedly the brain behind
conspiracy having died on 25. l 0.1999, which fact having brought to the F
notice of the Judicial Commissioner, there was no reason to continue the
attachment and to make the attachment order absolute on 03.05.2001.
It is submitted that due to death of Dr. S.B. Sinha, criminal proceedings
against him has abated. Dr. S.B. Sinha no longer could have been
convicted due to abatement of proceedings and the order of attachment
ought to have been withdrawn. G
13. Learned senior counsel has relied on judgment of this Court in
U. Subhadramma & Ors. Vs. State of A11dhra Pradesh, (2016) 7
SCC 797. He submits that due to death of an accused neither any guilt
can be pronounced nor any conviction can be ordered and the order of
H
922 SUPREME COURT REPORTS [2017] 12 S.C.R.
A attachment of properties ought to have been withdrawn and the Judicial
Commissioner committed error in making the order absolute. It is further
submitted that appellants were alleged to be only name lenders and except
Ravi Sinha, other three appellants are not involved in fodder scam case.
In any case, the attachment could have been with regard to the properties
of Dr. S.B. Sinha and the properties of the present appellants were not
B
liable to be attached. Ravi Sinha has been accused in four cases out of
which in one case, he has been acquitted and in another case, he was
not sent up for trial. In one case, i.e. RC No. 39/1996, appeal has
already been filed in the High Court and the case i.e. R.C. No. 68/ 1996
is pending in the trial court. He fw1her submits that amount alleged to be
C misappropriated in R.C. No. 39/1996 and RC. No. 68/1996 stands secured
as the same was deposited before the trial court pursuant to orders of
the Hon 'ble High Court granting him bail.
14. It has been further contended that C.B.I. had not sought orders
under Section 12 of the 1944 Ordinance at the stage of conviction in
D R.C. No. 39/1996, it cannot now do so. The stage of Section 12 having
come and gone, no orders can be passed with regard to properties
attached.
15. Shri K.K. Vcnugopal, learned Attorney General refuting the
submission ofleamed senior counsel for the appellants contends that the
E order of attachment as well as order making the attachment absolute
are in accordance with law. He submits that in a fodder scam, which
relates to non-supply of medicines and in which money more than Rs.600
crores has been defrauded, the accused are pa11 of a larger conspiracy.
Ravi Sinha has already been convicted by judgment and order dated
12.06.2008 in R.C. No. 39(A) ofl 996 (Sp!. No. 41 of 1996), it has been
F proved that he has committed offence. Sentence of Rigorous
Imprisonment for various offences including fine has been awarded
against him. The properties at this state where a larger conspiracy was
hatched and large number of accused having been convicted and/or are
still facing trial, the attachment of the properties could not have been
G withdrawn. Even though Dr. S.B. Sinha had died in the year 1999, the
properties attached could not have been released. One of his legal heirs
was also facing criminal proceedings in the same larger conspiracy to
misappropriate the Government fund.
16. Shri K.K. Venugopal further submits that the mere fact that
H allegations against Shri Ravi Sinha in the charge sheet, which was filed
RAVI SINHA & ORS. v. THE STATE OF JHARKHAND 923
[ASHOK BHUSHAN, J.]
against him were of specific amount cannot be said to mean that once A
the aforesaid amount is mentioned, the properties already attached should
be withdrawn since properties were acquired under larger conspiracy
and the smaller conspiracy was part of a larger conspiracy. Shri
Venugupal has also referred to judgment of this Court in State of
Jharkhand Vs. Laloo Prasad Yadav, (2017) 8 SCC 1. Shri K.K.
B
Venugopal answering the submissions with regard to Sections 12 and 13
of Ordinance contends that proceedings under Sections 12 and 13 are
independent proceedings and merely because at the time of conviction
order passed against Ravi Sinha, no mention was made of properties,
which were attached shall not come in the way in passing an order
under Section 13 of the Ordinance, 1944. After completion of the criminal C
proceedings, order can be passed under Section 13.
Submissions in Criminal Appeal Nos. 1542-1543 of 2008 and
1558-1559 of 2008
l 7. Learned counsel appearing for the appellant in aforesaid
criminal appeals contends that the above appeals involved totally different D
issues from the Ravi Sinha's case. The trial court and the High Court
have not considered the various materials like Income Tax Returns, Wealth
Tax Returns, Electricity Receipts, House Tax Receipts, Bank Drafts
etc., which clearly established the independent status/sources ofincome
of the Appellants. The High Court has merely confirmed the order of E
trial comt without consideration ofthe material. There was no justification
for attachment of property at SI. No.3 i.e. Kashmere Gate property
since the said property was acquired in the year 1955 in the name of
Sandeep Malik. The Property No. 158, Gali Bagichewali, Kashmere
Gate, Delhi was purchased in the year 1955 in the public auction. The
property of Engineer's Enclave, New Delhi in which Sandeep Malik is a F
co-owner was purchased in the year 1991 i.e. much before the alleged
scam.
18. Learned counsel appearing for the State of Jharkhand has
refuted the above submission and submitted that application which was
filed by the State clearly alleged that properties were purchased out of G
ill-gotten money by Vijay Kumar Mallick in his name and in names ofhis
relatives. It is further stated that the value of properties was only about
Rs. 25 lakhs whereas the defalcation alleged was more than a crore,
hence attachment of other properties of acaused arc also permissible
under the provisions of Ordinance, 1944.
H
924 SUPREME COURT REPORTS [2017] 12 S.C.R.
A 19. We have considered the submissions of learned counsel for
the parties and have perused the records.
20. We first proceed to the submissions raised by Mr. K.V.
Viswanathan. The principal submission of Shri K.V. Viswanathan is
that after death of Dr. S.B. Sinha on 25.10.1999, the attachment of
B properties ought to have been withdrawn since after the death of the
accused neither any order of conviction can be passed nor even guilt
can be pronounced. He has placed reliance on judgment of this Court in
U. Subhadramma & Ors. Vs. State of Andhra Pradesh, (supra).
This Court in the said case was considering the provisions of Ordinance,
1944. The properties were attached after the death of accused and
c further conviction was pronounced several years after his death. This
Court held that no application for attachment could have been made
after the death of the accused and the conviction pronounced after death
of the accused was null and void. In Paragraph 12 of the judgment,
following has been held:-
D "12. 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 Section 3 of the Criminal Law Amendment
Ordinance, 1944, who was actually dead. Section 3 contemplates
E 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
F 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
G 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."
H
R,AVI SINHA & ORS. v. THE STATE OF JHARKHAND 925
[ASHOK BHUSHAN, J.]
21. There cannot be any dispute to the proposition that no A
proceedings under Ordinance, 1944 can be undertaken against the
accused after his death and the prosecution cannot continue after the
death of an accused. There cannot be any dispute that after death of
Dr. S.B. Sinha, no prosecution could have been continued against him, in
fact after noticing his death, the charge sheet was not submitted by
B
C.B.I. against Dr. S.B. Sinha.
22. In the present case, there is one fact, which makes the present
case different from the case of U. S11bltadra111111a & Ors. Vs. State of
Andhra Pradesh, (supra), i.e. in the present case, Ravi Sinha, the son
of Dr. S.B. Sinha was himself accused in large number of cases. In one
case, he had already been convicted and fined. In another case relating C
to the similar fodder scam, i.e., R.C. No. 36/1996, the trial is going on.
There is a specific allegation that he had received payment but did not
supply medicine worth Rs.9.75 lakhs in R.C. Case No. 3911996, in which
he has been convicted. Allegation was against him that the company
was paid a sum ofRs.5.90 lakhs and there was non-supply of medicine. D
The appellant himself in his appeal No. 1561 of2008 has filed a rejoinder
affidavit and in Paragraph 16, following has been stated:-
"That what emerges from the aforesaid facts is that out of four
cases against him Ravi Sinha has been acquitted in one and not
sent up for trial in another. Even in the other two, in one the trial E
is underway and in the other he has been convicted but his appeal
is pending before the Hon 'ble High Court. While nothing needs
to be said about the first two cases, even with respect to the latter
two cases, the amount allegedly misappropriated by Ravi Sinha,
assuming whilst denying that ultimately the charges are found
true, stands secured as he has already deposited the amount with F
the trial court. Therefore there can be absofutely no rationale for
initiating separate attachment proceedings against him as the very
object of the attachment proceedings, under the Ordinance is to
secure the amount allegedly misappropriated so that in case of
conviction, the attached assets could be forfeited and liquidated G
to make good the amount misappropriated. Being conscious of
this legal position, the CBI has not initiated and cannot initiate any
attachment proceedings against Ravi Sinha but is rising .this issue
of cases against Ravi Sinha just to prejudice this Hon'ble Court.
H
926 SUPREME COURT REPORTS [2017] 12 S.C.R.
A True copy of a chart dated Nil giving the status of the cases against
Ravi Sinha is appended hereto markedANNEXURE-R/11"
23. It is thus an admitted position that Ravi Sinha had been
convicted in the fodder scam case and in one case trial is already going
on. There being an order of conviction of Ravi Sinha and in other case
B trial being underway making attachment order absolute cannot be faulted
with. It is true that prosecution against Dr. S.B. Sinha could not have
been continued after his death and no guilt can be pronounced of Dr.
S.B. Sinha, he being dead. However, the properties which were already
under attachment, having come in the hands of accused Ravi Sinha as
one of the legal representatives, who has been convicted in a fodder
c scam case and is facing trial in another case, present is not a case where
this Court can exercise its jurisdiction under Article 136 to interfere with
the order of the High Court and of the Judicial Commissioner in making
the order of attachment absolute. We thus do not find the present case
fit to exercise our jurisdiction under Article 136 on the above submission
D of learned counsel for the appellants.
24. The submission raised by Mr. Viswanathan in regard to
Sections 12 and 13 of the Ordinance needs now to be considered. Sections
12 and 13 of the Ordinance are as under:-
"12. Criminal Courts to evaluate property procured by scheduled
E offences.
(I) Where before judgment is pronounced in any criminal trial for
a scheduled offence it is represented to the Court that an order of
attachment of property has been passed under this Ordinance in
connection with such offence, the Court shall, if it is Convicting
F the accused, record a finding as to the amount of money or value
of other property procured by the accused by means of the offence.
(2) fu any appeal or rcvisional proceedings against such conviction,
the appellate or rcvisional Court shall unless it sets aside the
conviction, either confirm such finding or modify it in such manner
G as it thinks proper.
(3) In any appeal or rcvisional proceedings against an order of
acquittal passed in a trial such as is referred to in sub-section ( l ),
the appellate or revisional Court, if it convicts the accused, shall
record a finding such as is referred to in that sub-section.
H
RAVI SINHA & ORS. v. THE STATE OF JHARKHAND 927
[ASHOK BHUSHAN, J.]
(4) Where the accused is convicted of a scheduled offence other A
than one specified in item I of the Schedule to this Ordinance and
where it appears that the offence has caused loss to more than
one Government referred to in the said schedule or local authority
the finding referred to in this section shall indicate the amount of
loss sustained by each such Government or local authority.
B
(5) Where the accused is convicted at the same trial of one or
more offences specified in item I of the Schedule to this Ordinance
and of one or more offences specified in any of the other items of
the said Schedule, the finding referred to in this section shall indicate
separately the amounts procured by means of the two classes of
offences. C
13. Disposal of attached property upon termination of criminal
proceedings.
( 1) Upon the termination of any criminal proceedings for any
scheduled offence in respect of which any order of attachment of D
property has been made under this Ordinance or security given in
lieu thereof, the agent of the [State Government or, as the case
may be, the Central Government] shall, without delay inform the
District Judge, and shall where criminal proceedings have been
taken in any Court, furnish the District Judge with a copy of the
judgment or order of the trying Court and with copies of the E
judgments or orders, if any, of the appellate or revisional Courts
thereon.
(2) Where it is reported to the District Judge under sub-section
( 1) that cognizance of the alleged scheduled offence has not been
taken or where the final judgment or order of the Criminal Court F
is one of acquittal, the District Judge shall forthwith withdraw any
orders of attachment of property made in connection with the
offence, or where security has been given in lieu of such
attachment, order such security to be returned.
(3) Where the final judgment or order of the Criminal Courts is G
one of conviction, the District Judge shall order that from the
property of the convicted person attached under this Ordinance
or out of the security given in lieu of such attachment, there shall
be forfeited to Government such amount or value as is found in
the final judgment or order of the Criminal Courts in pursuance of H
928 SUPREME COURT REPORTS [2017) 12 S.C.R.
A Section 12 to have been procured by the convicted person by
means of the offence, together with the costs of attachment as
determined by the District Judge and where the finaljudgment or
order of the Criminal Courts has imposed or upheld a sentence of
fine on the said person (whether alone or in conjunction with any
other punishment), the District Judge may order, without prejudice
B
to any other mode of recovery, that the said fine shall be recovered
from the residue of the said attached property or of the security
given in lieu ofattachment.
(4) Where the amounts ordered to be forfeited or recovered under
sub-section (3) exceed the value of the property of the convicted
c person attached, and where the property of any transferee of the
convicted person has been attached under Section 6, the District
Judge shall order that the balance of the amount ordered to be
forfeited under sub-section (3) together with the costs of
attachment of the transferee's property as determined by the
D District Judge shall be forfeited to Government from the attached
property of the transferee or out of the security given in lieu of
such attachment; and the District Judge may order, without
prejudice to any other mode of recovery that any fine referred to
in sub-section (3) or any portion thereofnot recovered under that
sub-section shall be recovered from the attached property of the
E transferee or out of security given in lieu of such attachment.
(5) If any property remains under attachment in respect of any
scheduled offence of any security given in lieu of such attachment
remains with the District Judge after his orders under sub-section
(3) and (4) have been carried into effect, the order of attachment
F in respect of such property remaining shall be forthwith withdrawn
or as the case may be, the remainder of the security returned,
under the orders of the District Judge.
(6) Every sum ordered to be forfeited under this section in
connection with any scheduled offence other than one specified
G in item I of the Schedule to this Ordinance shall, after deduction
of the costs ofattachment as determined by the District Judge, be
credited to the Government {being a Government referred to in
the said Schedule J or local authority to which the offence has
caused loss, or where there is more than one such Government or
H
RAVI SINHA & ORS. v. THE STATE OF JHARKHAND 929
[ASHOK BHUSHAN, J.]
local authority, the sum shall, after such deduction as aforesaid, A
be distributed among them in proportion to the loss sustained by
each."
25. A perusal of Section 12(1) indicates that when the Court in
any criminal trial is represented that an order of attachment of property
has already been passed, the Court shall, if it is convicting the accused, B
record a finding as to the amount of money or value of other property
procured by the accused by means of the offence. Thus, Section 12( 1)
is to be invoked before the judgment is pronounced and the Court is
obliged to record a finding when it is represented to the Court that an
order of attachment of property has been passed.
c
26. Learned Attorney General has placed before us a copy of the
judgment dated 12.06.2008 of trial court in R.C. No. 39(A) of 1996
convicting Ravi Sinha. A perusal of which does not indicate that Court
was represented by C.B.I. that any property has already been attached.
Thus, the present is not a case where any order was to be passed by the
Court under Section 12(1). In the submission, it has been pressed by D
Mr. Viswanathan that once stage under Section 12(1) has passed, on it
cannot be done later. According to him, now no order can be passed
with regard to attached properties, hence there is no justification for
continuation of attachment. Whether any order can still be passed with
regard to attached property is a question to be answered. Section 13 of E
the Ordinance, 1944 as stated above provides for disposal of attached
property upon termination of criminal proceedings. Termination of criminal
proceedings are defined in Section 2(2) of the Ordinance, 1944, which
provides as follows;-
"2(2). For the purpose of this Ordinance, the date of the termination F
of criminal proceeding shall be deemed to be
(a)where such proceeding are taken to the Supreme Court in
appeal, whether on the certificate of a High Court or otherwise,
the date on which the Supreme Court passes its final order in
such appeal; or G
(b) where such proceedings are taken to the High Court and orders
are passed thereon and
(i) no application for a certificate for leave to appeal to the
Supreme Court is made to the High Court, the day immediately
H
930 SUPREME COURT REPORTS [2017] 12 S.C.R.
A following the expiry of ninety days from the date on which the
High Court passes its final orders;
(ii) an application for a certificate for leave to appeal to the
Supreme Court has been refused by the High Court, the day
immediately following the expiry of sixty days from the date of
B the refusal of the certificate;
(iii) a certificate for leave to appeal to the Supreme Court has
been granted by the High Court, but no appeal is lodged in the
Supreme Court, the day immediately following the expiry of
thirty days from the date of the order granting the certificate;
c or
(c) where such proceedings are not taken to the High Court, the
day immediately following the expiry of sixty days from the date
of the last judgment or order of a Criminal Court in the
Proceedings."
D 27. In the present case against the order of conviction dated
12.06.2008, appeal is already pending in the High Court as has been
pleaded by the appellant. Thus, criminal proceedings have not yet been
terminated. Further, in one criminal case, trial is already pending against
the accused in which provisions of Sections 12 and 13 can still be resorted
E to. Thus, this submission cannot be accepted that once a j udgmcnt is
pronounced in a criminal case by the Court and if no findings have been
recorded with regard to attached properties, no order can be passed
· with regard to attached properties. Section 13 gives ample power to
deal with attached properties after termination of criminal proceedings.
Mr. Viswanathan has also submitted that even accepting the allegations
F against Ravi Sinha, the allegations centre around only to Rs. 9. 75 lakhs
and Rs. 2.95 lakhs in R.C. No. 39/1996. He submits that there can be no
justification for keeping the properties under attachment when the
allegations are only upto the amount given above and further in the order
granting bail, the appellant has already secured the aforesaid amount.
G We have already noticed that one more trial is still pending against Ravi
Sinha. It is not necessary for us to consider the extent of amount which
has been found to be misappropriated by Ravi Sinha and computing the
value of properties attached. These are the questions which can very
well be raised by the appellant Ravi Sinha in Section 13 proceedings or
at the time of judgment in pending trial by invoking Section 12 of the
H
RAVI SINHA & ORS. v. THE STATE OF JHARKHAND 931
[ASHOK BHUSHAN, J.]
Ordinance, 1944. We are since confined to the only question in the A
present case; i.e. whether the attachment order ought not to have been
made absolute, and thus need not go into this submission in detail or
express any opinion? We thus are of the view that order passed by the
Jharkhand High Court dismissing the criminal appeals filed by the appellant
against order of Judicial Commissioner making the attachment order B
absolute need no interference in exercise of our jurisdiction under Article
136.
28. Now, we come to the criminal appeals ofSandeep Malik and
Kamal Malik. The High Court while dismissing the criminal appeals
filed by the appellant has made following observations in Paragraph 8 :-
c
"Perusal of the impugned order dated 13 .10.2004 clearly indicates
that the court below had considered each and every aspect of the
matter and gave reasoning as to how the opp. party-appellants
have failed to prove that those properties were purchased out of
their own source of income. The court below, on the other hand,
would refer to various materials collected by the prosecuting D
agency to show that those properties must have been purchased
by the appellant no. l, Vijay Kumar Mallik, through ill-gotten money.
There is no dispute in the fact that other appellants arc closely
related with appellant no. l, Vijay Kumar Mallik, who has been
convicted ultimately by the court below." E
29. As noted above, earlier the interim attachment orders were
made absolute by Judicial Commissioner, which orders were set aside
by the High Court and the matter was remanded. After remand, show-
cause was given by the appellants which we have considered in detail
as given by the Judicial Commissioner. Judicial Commissioncrvide order F
dated 13.10.2004 has referred to the various evidences brought on the
record including oral evidence with regard to properties i.e. Engineers
Enclave, as well as 158, Bageechewali, Kashmere Gate, New Delhi.
There is a detailed consideration from Page 76 to Page 81 of the paper
book of Criminal Appeal Nos. 1558-1559 of2008. After considerntion
of facts and evidences, the Judicial Commissioner was found it a fit G
case to make an attachment absolute. The High Court has confirmed
the aforesaid order vidc its judgment dated 21.06.2007. In so far as
submissions oflcarned counsel for the appellants regarding Kashmcrc
Gate property, which was purchased in 1955, learned counsel for the
State has submitted that power to attach the property docs not confine H
932 SUPREME COURT REPORTS (2017] 12 S.C.R.
A only to the properties acquired by ill-gotten money but to secure the
property misappropriated, any property of the accused can be attached.
A perusal of Section 4 of Ordinance, 1944 indicate that power to attach
the money or other property alleged to have been so procured is very
much there. Further, section provides that "if it transpires that such
money or other property is not available for attachment, such other
B
property of the said person of equivalent value as the District Judge may
think fit ... " Thus, the power is not confined and the power can be
exercised for attaching several properties to take care of the amount
which alleged to be defaulted. In the present case, in the order making
. the attachment absolute, following observations have been made:-
c "In the present case annexure-I to the main application shows
that the amount allegedly received by O.P. No.I from A.S.D.
Chaibasa is Rs. l ,49,41,000/- Annexure-II to the main application
shows the valuation of the attached properties to be Rs.25 lacs
which is much less than the amount said to have been procured
D by means of scheduled offences .... "
Thus, the submission that the property which was acquired in the
year 1955 could not have been attached cannot be accepted.
30. The appellants in the present case virtually are asking us to
reappraise the evidence and record a finding that the properties attached
E rere purchased by them of their own finances; which exercise need not
be gone into for exercise of jurisdiction under Article 136 in facts and
circumstances of the present case.
31. In result, all the appeals are dismissed.
Nidhi Jain Appeals dismissed.
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