Ravi Sinha vs The State Of Jharkhand

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1561 OF 2008

RAVI SINHA & ORS. … APPELLANTS

VERSUS

THE STATE OF JHARKHAND … RESPONDENT WITH

CRIMINAL APPEAL NO.1521 OF 2008

RAVI SINHA & ORS. … APPELLANTS VERSUS THE STATE OF BIHAR (NOW JHARKHAND) … RESPONDENT THROUGH C.B.I. WITH CRIMINAL APPEAL NOS.1542-1543 OF 2008

SANDEEP MALIK … APPELLANT VERSUS STATE OF JHARKHAND & Anr. … RESPONDENTS WITH

CRIMINAL APPEAL NOS.1558-1559 OF 2008

KAMAL MALIK … APPELLANT VERSUS C.B.I. & ANR. … RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

Signature Not Verified Digitally signed by ASHWANI KUMAR Date: 2017.10.07 12:57:58 IST Reason: 1. All these appeals arise out of proceedings undertaken 2

under Criminal Law (Amendment) Ordinance, 1944, by

which certain properties were attached on an

application filed on behalf of the State, which

attachments were subsequently made absolute.

Criminal appeals filed before the High Court 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 been filed

against the common judgment dated 21.06.2007 of

Jharkhand High Court dismissing two criminal appeals

filed by the appellants.

2. Criminal Appeal Nos. 1542-1543 of 2008 as well as

Criminal Appeal Nos. 1558-1559 of 2008 have been

filed against the common judgment dated 21.06.2007 of

Jharkhand High Court by which two criminal appeals

filed by appellants were dismissed.

Facts of Criminal Appeal No. 1561 of 2008 and Criminal Appeal No. 1521 of 2008

3. This Court vide its order dated 19.03.1996 in State 3

of Bihar & Anr. Vs. Ranchi Zila Samta Party & Anr.,

(1996) 3 SCC 682, 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 of Bihar. A similar

situation prevailed in the Education, Cooperation and

Fisheries Departments. It was agreed by all the

counsel in above 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).

4. The allegation in brief was that the large number of

accused persons in pursuance of a conspiracy

defrauded Government of Bihar (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. 4

Department, for purchase of medicines. Fake supplies

were shown by the suppliers and money was withdrawn

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(1)(c) &

(d) of the Prevention of Corruption Act, 1988 were

registered.

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.1, 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.1. An application was filed by the State of Bihar

before the Court of Judicial Commissioner, Ranchi

under Section 3 of Criminal Law (Amendment) Order,

1944, arraying Dr. S.B. Sinha as respondent No.1, the

appellant No.1, Ravi Sinha as respondent No.2, the

appellant No. 2 as respondent No.4, appellant No.3 as 5

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

proceedings after submission of charge-sheet, if any,

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

of Bihar was defrauded to the tune of Rs.600 crores.

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 portion 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 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 6

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-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 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.

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 7

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 given

to the respondents for adducing evidence. Since

these opportunities were not availed of by the

respondents, Judicial Commissioner by an order dated

03.05.2001 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 properties, the

Judicial Commissioner passed an order on 12.06.2001

directing the C.B.I. to suggest the names of

competent persons for appointment of receiver.

Aggrieved by the orders dated 03.05.2001 and

12.06.2001, Criminal Appeal Nos. 307 and 310 of 2001

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 judgment, Criminal Appeal Nos.

1561 of 2008 and 1521 of 2008 has been filed. 8

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 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 of Rs.24,69,60,090/- as reported in the First

Information Reports. An application was filed before

the Judicial Commissioner, Ranchi by State of Bihar

against Vijay Kumar Mallick(as O.P. No.1), Smt. Komal

Mallick, (as O.P. No.2) and Sandeep Mallick and three

other persons. It was alleged in the application that

in the course of investigation, it has 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 defrauded is to the extent of

Rs.24,69,60,090/-. It was further alleged that Vijay

Kumar Mallick has acquired huge movable and immovable

assets in his own name and in the name of his wife 9

and children and others at different places. In

Annexure-II, the statement and details of the

properties was given. It was further stated that

O.P. No.1 and 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-II. The ad-interim order of attachment was

made absolute on 27.04.2001 and further order on

12.07.2001 was passed directing the C.B.I. to suggest

names for appointment of receiver.

9. Respondent NOs. 2, 3 and 4 to the application had

filed criminal 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 10

after noticing the show-cause passed a detailed order

dated 13.10.2004 making the ad-interim order as an

absolute. Vide order dated 18.10.2004, 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, 18.10.2004 and 14.12.2004 being Criminal

Appeal Nos. 1931 of 2004 and 694 of 2005 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 filed Criminal

Appeal Nos. 1558-1559 of 2008.

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 11

2008 and 1521 of 2008 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 25.10.1999, which fact having brought

to the 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.

13.Learned senior counsel has relied on judgment of this

Court in U. Subhadramma & Ors. Vs. State of Andhra

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 attachment of properties ought to have been 12

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 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 further

submits that amount alleged to be misappropriated in

R.C. No. 39/1996 and R.C. 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 13

at the stage of conviction in 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. Venugopal, learned Attorney General

refuting the submission of learned senior counsel for

the appellants contends that the 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 part of a larger

conspiracy. Ravi Sinha has already been convicted by

judgment and order dated 12.06.2008 in R.C. No. 39(A)

of 1996 (Spl. No. 41 of 1996), it has been 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 14

could not have been 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 allegations against Shri Ravi Sinha in the

charge sheet, which was filed against him were of

specific amount cannot be said to mean that once 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. 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 15

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 proceedings, order can be

passed under Section 13.

Submissions in Criminal Appeal Nos. 1542-1543 of 2008 and 1558—1559 of 2008

17.Learned counsel appearing for the appellant in

aforesaid criminal appeals contends that the above

appeals involved totally different 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 of

income of the Appellants. The High Court has merely

confirmed the order of trial court without

consideration of the material. There was no

justification for attachment of property at Sl. 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, 16

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

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

ill-gotten money by Vijay Kumar Mallick in his name

and in names of his 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

accused are also permissible under the provisions of

Ordinance, 1944.

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 17

K.V. Viswanathan is that after death of Dr. S.B.

Sinha on 25.10.1999, the attachment of 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 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:-

“12. In fact, we find that the learned District Judge could not have proceeded with the attach- ment 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 that such an appli- cation must be made to the District Judge within the local limits of whose jurisdiction the said person ordinarily resides or carries on busi- ness, in respect of property which the State 18

Government believes the said person to have pro- cured by means of the offences. It is incompre- hensible, 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 deci- sions of the courts below are disturbing, to say the least. In the first place, though the ac- cused had died, the trial court proceeded with the trial and recorded a conviction two years after his death. Then, this null and void con- viction was used as a basis for making an at- tachment of his properties before the Sessions Court. Astonishingly, all applications suc- ceeded, the attachment was made absolute and over and above all, the High Court upheld the attachment.”

21.There cannot be any dispute to the proposition that

no 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

C.B.I. against Dr. S.B. Sinha.

22. In the present case, there is one fact, which makes 19

the present case different from the case of U.

Subhadramma & 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 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.

39/1996, in which he has been convicted. Allegation

was against him that the company was paid a sum of

Rs.5.90 lakhs and there was non-supply of medicine.

The appellant himself in his appeal No. 1561 of 2008

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 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 20

charges are found true, stands secured as he has already deposited the amount with the trial court. Therefore there can be absolutely 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 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. True copy of a chart dated Nil giving the status of the cases against Ravi Sinha is appended hereto marked ANNEXURE –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 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 21

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 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 offences.

(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 finding as to the amount of money or value of other property procured by the accused by means of the offence.

(2) In any appeal or revisional proceedings against such conviction, the appellate or revisional Court shall unless it sets aside the 22

conviction, either confirm such finding or modify it in such manner as it thinks proper.

(3) In any appeal or revisional proceedings against an order of acquittal passed in a trial such as is referred to in sub-section (1), the appellate or revisional Court, if it convicts the accused, shall record a finding such as is referred to in that sub-section.

(4) Where the accused is convicted of a scheduled offence other 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.

(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.

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 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 23

copies of the 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 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 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 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 final judgment 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 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 sub-section (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 24

ordered to be forfeited under sub-section (3) together with the costs of attachment of the transferee's property as determined by the 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 thereof not recovered under that sub-section shall be recovered from the attached property of the 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 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 in item I of the Schedule to this Ordinance shall, after deduction of the costs of attachment as determined by the District Judge, be credited to the Government {being a Government referred to in the said Schedule} or local authority to which the offence has caused loss, or where there is more than one such Government or local authority, the sum shall, after such deduction as aforesaid, 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 25

order of attachment of property has already been

passed, the Court shall, if it is convicting 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. 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.

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 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 26

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 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 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

(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 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 the refusal of the certificate;

27

(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; 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.”

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 to. Thus, this submission cannot be

accepted 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 deal

with attached properties after termination of 28

criminal proceedings. Mr. Viswanathan has also

submitted that even accepting the allegations 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. 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 Ordinance, 1944. We are since confined to the

only question in the 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 29

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 absolute need no

interference in exercise of our jurisdiction under

Article 136.

28.Now, we come to the criminal appeals of Sandeep Malik

and Kamal Malik. The High Court while dismissing the

criminal appeals filed by the appellant has made

following observations in Paragraph 8 :-

“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 agency to show that those properties must have been purchased by the appellant no.1, Vijay Kumar Mallik, through ill-gotten money. There is no dispute in the fact that other appellants are closely related with appellant no.1, Vijay Kumar Mallik, who has been convicted ultimately by the court below.”

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 30

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 Commissioner vide order 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 of 2008.

After consideration of facts and evidences, the

Judicial Commissioner was found it a fit case to make

an attachment absolute. The High Court has confirmed

the aforesaid order vide its judgment dated

21.06.2007. In so far as submissions of learned

counsel for the appellants regarding Kashmere Gate

property, which was purchased in 1955, learned

counsel for the State has submitted that power to

attach the property does not confine 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 31

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 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:-

“In the present case annexure-I to the main application shows that the amount allegedly received by O.P. No.1 from A.S.D. Chaibasa is Rs.1,49,41,000/- 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 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 32

asking us to reappraise the evidence and record a

finding that the 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 present

case.

31.In result, all the appeals are dismissed.

..........................J. ( A.K. SIKRI )

..........................J. NEW DELHI, ( ASHOK BHUSHAN ) OCTOBER 05, 2017.

33

ITEM NO.1501 COURT NO.5 SECTION II-A (FOR JUDGMENT) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No(s). 1561/2008

RAVI SINHA & ORS. Appellant(s)

VERSUS

THE STATE OF JHARKHAND Respondent(s)

(HEARD BY HON'BLE A.K. SIKRI AND HON'BLE ASHOK BHUSHAN, JJ.)

WITH Crl.A. No. 1521/2008 (II-A) Crl.A. No. 1542-1543/2008 (II-A) Crl.A. No. 1558-1559/2008 (II-A)

Date : 05-10-2017 These appeals were called on for pronouncement of judgment today.

For Appellant(s) Mr. K.V. Viswanathan, Sr.Adv.

Mr. Amit Pawan, AOR Mr. Abhishek Amritanshu, Adv.

Mr. Hassan Zubair Waris, Adv.

Mr. Akshat Srivastava, Adv.

Mr. Akshay Sinha, Adv.

Ms. Vrinda Bhandari, Adv.

Mr. Mukunda Rao Angara, Adv.

Mr. D. N. Goburdhan, AOR

For Respondent(s) Ms. Ranjana Narayan, Adv.

Mr. Mukesh Kumar Maroria, AOR

Mr. B. Krishna Prasad, AOR

Mr. Anil K. Jha, AOR Mr. R.K. Ojha, Adv.

Hon'ble Mr. Justice Ashok Bhushan pronounced the judgment of

the Bench comprising Hon'ble Mr. Justice A.K. Sikri and His

Lordship. The appeals are dismissed in terms of the signed 34

reportable judgment.

Pending application(s), if any, stands disposed of accordingly.

(ASHWANI KUMAR) (MADHU NARULA) COURT MASTER COURT MASTER

(Signed reportable judgment is placed on the file)