TMI Blog1962 (4) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... ecuted under ss. 120-B and 409 of the Indian Penal Code before the Second Special Tribunal constituted under the Criminal Law Amendment Ordinance, No. 29 of 1943 (hereinafter referred to as the 1943-Ordinance). In the mean time, the Criminal Law Amendment Ordinance No. 38 of 1944 (hereinafter referred to as the 1944 Ordinance) was passed. The object of this Ordinance was to prevent the disposal or concealment of money or other property procured by means of certain scheduled offences punishable under the Indian Penal Code, and one of the offences to which this Ordinance applied was s. 409 of the Indian Penal Code, and any conspiracy to commit such offence. Section 3 of this Ordinance provided that where the Provincial Government had reason to believe that any person had committed (whether after the commencement of this Ordinance or not) any scheduled offence, the Provincial Government was empowered (whether or not the Court had taken cognizance of the offence) to make an application to the District Judge within the local limits of whose jurisdiction the said person ordinarily resided or carried on his business, for the attachment of the money or other property which the Provincial G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent guilty of the offences under ss. 120-B and 409 of the Indian Penal Code it sentenced him to rigorous imprisonment for five years and a fine of Es. 45 lacs ON the charge of conspiracy, and the reason why the fine was fixed at ₹ 45 lacs was that in the view of the Special Tribunal, the money procured by the respondent by means of the offence was over ₹ 45 lacs. The respondent went in appeal to the High Court from his conviction and the High Court upheld the conviction as well as the sentence of fine. The High Court however found that the money procured by the respondent by the commission of the offence of conspiracy was at least ₹ 30 lacs Even so, the High Court did not interfere with the sentence of fine imposed by the Special Tribunal as it was of the view that s. 10 of the 1943 Ordinance as amended in 1945 prescribed the minimum limit of fine only and it was open to the Special Tribunal under the ordinary law to impose any amount of fine. The respondent then came in appeal to this Court, which was dismissed. This Court held that on the finding it was clear that at least ₹ 30 lacs had been misappropriated by the respondent as a result of the consp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court and challenged the order of the District Judge. This appeal was heard by a Division Bench of the High Court consisting of Mitter and Bhattacharya, JJ. Two points were urged before the High Court in this connection. The first was. that as no proceedings under s. 12 of' the 1944 Ordinance had been taken as to the money which had been procured by the commission of the offence and no finding had been arrived at under that Section, it was not open to the District Judge to take proceedings under s. 13 of the 1944-Ordinance. Secondly, it ,as urged that even if it were open to the District Judge to take proceedings under s. 13, the proceedings could not go on in view of Art. 20(1) of the Constitution. Mitter, J., on a construction of SS. 12 and 13 of the 1914Ordinance held that only it an order s. 12 had been obtained, it would be open to take action under s. 13; but as in his view no order under S 3.12 had been obtained, and all that had been found was that the respondent had obtained at least ₹ 30 lacs by the commission of the offence under s. 10 of the 1943 Ordinance as amended in 1945, that was not what was required under s. 12. Therefore, he held that no proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies in the circumstances of this case, and it is contended that the provision in s. 13 of the 1944-Ordinance for forfeiture is not a punishment but merely a method of realising money of the Government which bad been embezzled by the respondent and therefore Art. 20(1) had no application. It is urged that it would have been open to Government to file a suit to recover the money or, the property embezzled and that s. 13 only provides a speedier remedy for attaining the same object. Learned counsel for the respondents on the other hand supports the view taken by the High Court on both points and urges that there is no reason to interfere with the order passed by the High Court. We shall first consider the view of Mitter J. as to the interpretation of se. 12 and 13 of the 1944, Ordinance. The two sections read as follows 12. Criminal Courts to evaluate property procured by scheduled offence: (1) 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 the accused, record a findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, without prejudice 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 of attachment. (4) Where the amounts ordered to be forfeited or recovered under subsection (3) exceed the 'Value of the property of the convicted 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 cost of attachment of the transferee's property as determined by the District Judge shall be forfeited to His Majesty 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 thereof not recovered under the sub-section shall be recovered from the attached property of the transferee or out of the security given in lie of such attachment. (5) If any property remains under attachment in respect of any scheduled offence or any security ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er property procured by the accused before it by means of the offence for which be is being tried. There is no procedure provided for making the representation to the court to record a finding as to the amount of money or value of other property procured by the offence. In our view, all that s. 12(1) requires is that at the request of the prosecution the court should give a finding as to the amount of money or value of other property procured by the accused. Representation may be by application or even oral so long as the court gives a finding as to the amount of money or value of other property procured by the offence that would in our opinion be sufficient compliance with s. 12(1). It is not necessary that the court when it gives a finding as to the amount of money or value of other property procured by means of the offence should say in so many words in passing the order that it is making that finding on a representation under s. 12 (1). It is true that under S. 10 of the 1943Ordinance as amended in 1945 the court when imposing a fine has to give a finding as to the amount of money or value of other property found to have been procured by the offender by mean,% of the offence in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a mere formality. Obviously, even a determination under s. 10 of the 1943Ordinance as amended in 1945 of the amount procured by the offence must be at the instance of the prosecution, for it is the prosecution which will provide the material for that determination which in turn will be the basis on which the fine will be determined by the court under s. 10. The view taken therefore by Mitter J. that there must be a specific finding in terms to the effect that on the representation of the prosecution the court finds under s. 12(1) that such and such amount was procured by means of the offence is not correct. In our opinion, there was a finding in this case by the criminal court about the amount of money procured by the respondent by means of the offence, namely at least ₹ 30 lacs. Therefore the District Judge would have jurisdiction on the basis of the finding to proceed to forfeit the property attached up to that value. We are further of opinion that the view taken by Mitter J. that the property attached under s. 3 of the 1944 Ordinance has to be valued by the criminal court is obviously incorrect and is not born out by the terms of s. 12(1). We have pointed out that under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount found by the criminal court to have been procured by the commission of the offence, and in order to effect forfeiture he would naturally have jurisdiction to have the property attached valued in order' to enable him to forfeit it under s. 19(3) to the extent of the amount procured by means of the offence. This brings us to the contention which found favour with Bhattacharya J., namely, that the provision of s. 13(3) is a punishment and that as the 1944-Ordinance was not in force at the time when the offence was committed s. 13(3) could not be applied to the respondent inasmuch as Art. 20(1) lays down that no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Two arguments have been urged on behalf of the appellant in this connection. In the first place, it is urged that the respondent remained in office till August 25, 1944 while the Ordinance came into force on August 23, 1944 and therefore the conspiracy by means of which the money was procured continued till after the Ordinance had come into force and therefore Art.20(1) can have no application, for it cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is to prevent the disposal or concealment of such property. Section 13(3) with which we are particularly concerned lays down that 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 His Majesty such amount or value as is found in the final judgment or order of the criminal courts in pursuance of a. 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. It is further provided, that where the final judgment or order of the criminal court has imposed or upheld a sentence of fine on the said person, the District Judge may order without prejudice 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 of attachment. The forfeiture by the District Judge s. 13 (3) cannot in our opinion be equated to forfeiture of property which is provided in s. 53 of the Indian Penal Code. The forfeiture provided in s. 53 is undoubtedly a penalty or punishment within the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e procured by embezzlement etc. The mere use of the word 'forfeited would not necessarily make it a penalty. The word ,'forfeiture' has been used in other laws without importing the idea of penalty or punishment within the meaning of Art. 20(1). Reference in this connection may be made to s. III (g) of the Transfer of Property Act (No. 4 of 1882) which talks of determination of a lease by forfeiture. We are therefore of opinion that forfeiture provided in, a. 13(3) in case of offences which involve the embezzlement etc. of government money or property is really a speedier method of realising Government money or property as compared to a suit which it is not disputed the Government could bring for realising the money or property and is not punishment or penalty within the meaning of Art. 20(1). Such a suit could ordinarily be brought without in any way affecting the right to realise the fine that may have been imposed by a criminal court in connection with the offence. We may in this connection refer to Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh ([1953] S.C.R. 1188.) where Art. 20(1) came to be considered. In that case it was held that (,the prohibition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of imprisonment for an offence of criminal breach of trust by a public servant, or for an offence of criminal conspiracy to commit an offence under section 409 of the Indian Penal Code was thus not created for the first time by section 10 of the Ordinance. The liability was already there under the Indian Penal Code. But while under the Penal Code, it was discretionary for the court to pass a sentence of fine, in addition to a term of imprisonment, section 10 of the Ordinance (the 1943-Ordinance) made it compulsory for the court to pass a sentence of fine also- and fixed the minimum. But it was always open to a Court of Session under the Penal Code to award any amount of fine and there was no statutory upper limit to such imposition except that it shall not be excessive (see a. 63 of the Indian Penal Code). Therefore, the fine of ₹ 45 lacs imposed in this case has nothing to do with the amount to be forfeited under s. 13(3) and simply because that fine was imposed after taking into account the amount embezzled would make no difference so far as s. 13(3) is concerned. That section clearly contemplates that the District Judge will first forfeit the Attached properties upto ..... X X X X Extracts X X X X X X X X Extracts X X X X
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