Saturday, 13 August 2016

Whether accused can be convicted after his death?

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.
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1596 OF 2011
U. SUBHADRAMMA & ORS. .
VS
STATE OF A.P. REP.BY PUB. PROSECUTOR & ANR. 
Citation:AIR 2016 SC 3095
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
2Page 3
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
3Page 4
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
4Page 5
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.
5Page 6
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.

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

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

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