Holding

A prosecution cannot continue against a dead person and attachment of his property under the Criminal Law Amendment Ordinance, 1944 is invalid; such attachment orders must be withdrawn.

Summary

Ramachandraiah was charged under IPC sections 409, 468 and 471 for misappropriating Rs. 6,57,355.90. He died in 1991 while the trial was pending; the trial court nevertheless recorded a finding that he alone had committed the offence, though he could not be convicted. The State then invoked Clause 3 of the Criminal Law Amendment Ordinance, 1944 to attach his property, and the District Judge made the attachment absolute, a decision upheld by the High Court. The appellants challenged the attachment under CrPC Section 482, arguing that the Ordinance does not permit attachment against a deceased person. The Supreme Court held that prosecution cannot continue against a dead person, the presumption of innocence persists, and the attachment provisions require the existence of a living accused; consequently, the attachment orders were illegal and set aside. The appeal was allowed and the orders of the lower courts were vacated.

Issues considered

Whether the Criminal Law Amendment Ordinance, 1944 permits attachment of property of a deceased accused.
Whether prosecution can continue and a conviction be recorded against a person who dies during trial.
Whether attachment orders must be withdrawn upon abatement of prosecution due to the death of the accused.
Whether findings of guilt against a dead accused are legally valid.

Legislation cited

Code of Criminal Procedure, 1973s. Section 482
Criminal Law Amendment Ordinance, 1944s. Clause 13, s. Clause 3, s. Clause 4, s. Clause 5
Indian Penal Code, 1860s. Section 409, s. Section 468, s. Section 471
Prevention of Corruption Act, 1988

Subjects

attachment of propertydeath of accusedabated prosecutionCriminal Law Amendment Ordinance 1944presumption of innocenceCrPC Section 482misappropriationIPC 409IPC 468IPC 471

Judgment

[2016] 3 S.C.R. 469

U. SUBHADRAMMA & ORS. A
v.
STATE OF A.P. REP. BY PUB. PROSECUTOR & ANR.
(Criminal Appeal No. 1596of201 I)
JULY 04, 2016 B

[S.A. BOBDE AND AMITAVA ROY, JJ.]
Criminal Law Amendment Ordinance, 1944 -: Clause 3 -
Application for attachment of property - Misappropriation of fimds
by accused - Death of accused during the pendency of criminal
trial - Attachment of property of dead accused by District Judge -
c
Permissibility of- Held: Prosecution cannot cominue against a dead
person - Such proceedings and findings are contrary to the very
foundation of criminal jurisprudence - 111 such a case the accused
does not exist and cannot be convicted - District Judge committed
a gross error of law in acting upon such a finding and treating D
accused as guilty of such offences while making the order of
attachment and confirming the said order of attachment - Orders
of the criminal court vis-a-vis the said accused illegal and set aside.
Allowing the appeal, the Court
HELD: 1.1 If the law requires that the orders of attachment E
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 F
the Criminal Court is one of acquittal. 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. [Para 6] (475-D-F]
1.2 A prosecution cannot continue against a dead person. A G
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 docs not exist and cannot be convicted.
Consequently, the District Judge committed a gross error of law
H
469
470 SUPREME COURT REPORTS (2016] 3 S.C.R.

A in acting upon such a finding and treating R as guilty of such
offences while making the order of attachment and while
confirming the said order of attachment of properties. 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 Single Judge of
B
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. The facts involved
did not warrant presumption of commission of offence by appellant
No.1 and thus, the findings recorded by the courts below are not
c tenable. [Paras 7, 8, 9) [476-A-C; E-F]
1.3 The District Judge could not have proceeded with the
attachment proceedings at all since the attachment proceedings
were initiated by the State against R under clause 3 of the Criminal
Law Amendment Ordinance, 1944, who was actually dead. Clause
D 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
E 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. The proceedings and the decisions of the courts
below are disturbing, in the first place, though the accused had
F died, the trial court proceeded with the trial and recorded a
conviction two years after his death, then, this null and void
conviction was used as a basis for making an attachment of his
properties before the Sessions Court. Astonishingly, all
applications succeeded, the attachment was made absolute and
over and above all, the High Court upheld the attachment. The
G orders of the Criminal Court vis-a-vis R are illegal and is set
aside. The impugned judgment is unsustainable and is set aside.
[Paras 10, 11) [476-1!'-H; 477-A-C)
Willie (WILIAM) Slaney v. State of M.P. 1956 AIR 116 :
1955 SCR 1140; Babu Singh v. State ()f Punjab (1963)
H 3 SCR 749; Ashish Batham v. State of M.P. 2002 (2)
U. SUBHADRAMMA & ORS. v. STATE OF A.P. REP. BY PUB. 471
PROSECUTOR & ANR.

Suppl. SCR 146 : 2002 (7) SCC 317; Ranjitsing A
Brahmajeetsing Sharma v. State Of Maharashtra & Anr.
2005 (3) SCR 345 : 2005 (5) SCC 294; Sher Singh @
Partapa v. State of Haryana 2015 (1) SCR 29 : 2015
(3) SCC 724; State of Punjab v. .!agbir Singh. Baljit
Singh and Karan Singh AIR 1973 SC 2407 - referred
B
to.
Case Law Reference

1955 SCR 1140 referred to Para6

(1963) 3 SCR 749 referred to Para6 c
2002 (2) Suppl. SCR 146 referred to Para6

2005 (3) SCR 345 referred to Para6

2015 (1) SCR 29 referred to Para6
D
AIR 1973 SC 2407 referred to Para8
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1596 of201 l.
From the Judgment and Order dated 28.06.2006 of the High Court
E
of Judicature of Andhra Pradesh at Hyderabad in Criminal Petition No.
5922 of2002.

J.M. Sharma, Sr.Adv.. R. S. Krishnan, Ms. Suruchi, Syed Ahmad
Naqvi, Ms. Sweta Jain, D. Mahesh Babu, Advs. for the Appellants.

Guntur Prabhakar, Ms. Prerna Singh, G. N. Reddy, Advs. for the F
Respondents.

The Judgment of the Com1 was delivered by
S. A, BOBDE, J. 1. The appellants being legal representatives
of one Ramachandraiah who was accused of offences under Sections G
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
H
472 SUPREME COURT REPORTS (2016] 3 S.C.R.

A Appellant Nos. 2 and 3, was prosecuted under the aforesaid sections in
respect of misappropriation of funds. He was charged with
misappropriation ofan 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
B
Judgment dated 25.10.1993. However, the trial court observed on the
basis of oral and documenta1·y 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
c 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
D
2. In 1997, the State moved an application under the Criminal
Law Amendment Ordinance, 1944 (Ordinance No. XXXVlll of 1944)
for attachment of property of the appellant under the criminal law.
Thereon, the DistrictJudge passed an orderofinterim attachment under
Clause 4 of the ordinance on the basis that Ramachandraiah has
E 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
orderofattachment should not be made absolute. In this order, the District
Judge observed that according to the state as many as 30 items mentioned
F 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. I 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
G 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 of2 I 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/-.
H
U. SUBHADRAMMA & ORS. v. STATE OF A.P. REP. BY PUB. 473
PROSECUTOR & ANR. [S. A. BOBDE, J.]

3. Thereafter on 1-10-2002", the learned District Judge heard A
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 prope1iies as mentioned in the
B
schedule are the selt~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
c
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 !Je innocent. Against the aforesaid
order, the appellants have preferred this appeal. D
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 E
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 F
obtained by ill-gotten means and it was legal for the learned District
Judge to have passed the order ofattachment 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 G
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
H
474 SUPREME COURT REPORTS [2016J 3 S.C.R.

A 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
B
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 i1iterim attachment
on prima facie grounds for believing that the person in respect of whom
c the application is made has committed any scheduled offence or has
procured any money or prope1iy 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
D 3. Application for attachment of property:-
( I) Where the [State Government or as the case may be. the Central Government]
has reason to believe that any person has committed (whether alter 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,
E 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]
F (2) The provisions of Order XXYll 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 (I) shall be accompanied by one or more
aftidavits, 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 ofother property
believed to have been procured by means of the offence. The application shall also
G
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
H claim. any interest or title in the property of the said person. ·
U. SUBHADRAMMA & ORS. v. STATE OF A.P. REP. BY PUB. 475
PROSECUTOR & ANR. [S. A. BOBDE, J.]

investigation of objections to the attachment who have been served with A
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
B
furnish the District Judge with a copy of the judgment or order of the
trial court and with copies of the judgment or orders, ifany 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 ofalleged scheduled offence
has not been taken or (b) where the final judgment and orders of the c
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 . D
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 E
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
F
is convicted.'
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 G
since Ramachandraiah had admittedly died on the date this finding was
2
(1955)2SCR 1140atpage 1195
(1963) 3 SCR 749 at page 766
(2002) 7 sec 317 at para 8
(2005) 5 sec 294 at para 35
(2015) 3 sec 724 at paras 12 and 17 H
476 SUPREME COURT REPORTS [2016) 3 S.C.R.

A rendered. It is too well settled that a prosecution cannot continue against
a dead person. A fortiori a criminal court cannot continue proceedi11gs
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 oflaw
B
in acting upon such a finding and treating Ramachandraiah as guilty of
such offences while makingthe order ofattachment 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. I had committed the offence as alleged by the
c 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
D 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
E of witness 3•
9. The facts involved herein did not warrant presumption of
commission of offence by Appellant No. I and thus the findings recorded
by the courts below are not tenable.
I 0. In fact, we find that the learned District Judge could not have
F
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
G 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
3 State of Punjab v.Jagbir Singh,Baljit Singh and Karan Singh.AIR 1973 SC 2407
H
U. SUBHADRAMMA & ORS. v. STATE OF A.P. REP. BY PUB. 477
PROSECUTOR & ANR. [S. A. BOBDE, J.]

business anywhere. There is no legal provision which enables continuance A
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
B
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 Com1 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
c
orders of the Courts below are accordingly set aside. The appeal
succeeds.

Nidhi Jain Appeal allowed.