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Attached Property, Disposal of - Termination of Criminal Proceeding for scheduled offence—Order of District Judge-- Validity—Forfeiture, if a penalty—Criminal Law Amendment Ordinance: 1944(38 of 1944), ss. 13(3), 12(1)3.—Criminal Law Amendment Ordinance, 1943 (29 of 1943), as amended by Criminal Law (1943 Amendment) Amending Ordinance, 1945 (12 of 1945), S.10-Constitution of India, Art. 20(1)—Indian Penal Code, 1860(Act 56 of 1860), ss. 120B, 409, 53.The respondent, who was the Chief Refugee Administrator of Burma Refugee Organisation from November, 1942, to August 25, 1944, was tried under ss. 120B and 409 of the Indian Penal Code by the Second Special Tribunal, functioning under the Criminal Law Ordinance No, 29 of 1943 as amended by Criminal Law (1943 Amendment) Amending Ordinance No. 12 of 1945. On an application made on behalf of the Provincial Government under s. 3 of the Criminal Law Amendment Ordinance, Now 38 of 1944, the District Judge attached certain properties as having been purchased by the respondent with money procured by the said offence. The Special Tribunal found the respondent guilty and sentenced him to rigorous imprisonment for five years and a fine of Rs. 45 lacs as in its view the money procured by the offences exceeded that amount. On appeal by the respondent the High Court affirmed the order of conviction and sentence. ‘There was a further appeal to this Court and this Court affirmed the finding of the High Court that at least Rs. 30 lacs must have been misappropriated and refused to interfere. Thereafter the District Judge, on an application made under s. 13 of the 1944 Ordinance passed the order, out of which the present appeal arose, directing that Rs. 30 lacs together with the cost of attachment should first be forfeited to the Union of India from the attached properties and thereafter the fine of Rs. 45 lacs was to be recovered from the residue of the attached properties and directed the receiver to report as to the valuation and the cost of attachment and management of the attached properties. The respondent appealed to the High Court and the two Judges of the Division Bench hearing the appeal agreed in quashing the order of the District Judge; one of them on the ground that no order having been obtained under s. 12(1) of that Ordinance, no application lay under s. 13(3) thereof and the other on the ground that since forfeiture was not prescribed as punishment before the 1944 Ordinance and that Ordinance came into force after the offence has been committed, any forfeiture ordered under the Ordinance would contravene Art. 20(1) of the Constitution. The State of West Bengal appealed. Held, that the order of the High Court must be set aside and that of the District Judge resorted. Section 12(1) of the 1944 Ordinance only required that at the request of the prosecution the court should give a finding as to the amount of money or the value of the property that had been procured by the accused by the commission of the offence, no matter whether such representation was by application or oral, and if the court gave the finding that would be sufficient compliance with the section. Where such a finding was given under s. 10 of the 1943 Ordinance as amended in 1945, that finding would also satisfy the requirement of s. 12(1) of the 1944 Ordinance. Of the two kinds of property contemplated by s. 3 of the 1944 Ordinance for the purpose of attachment, s. 12 was concerned only with the determination of the value of such property alone as had been procured by the offence and the Criminal Court had thereunder to evaluate such property and none others. Since what was attached in this case was not property procured by the commission of the offence, what the Criminal court was required to do was to declare the amount of money procured by the offence. It was for the District Judge to value other properties purchased by that money when he considered the question of forfeiture under s. 13(3) and that was what the District Judge did in this case, The forfeiture provided under s. 18(3) of the 1944 Ordinance was not a penalty within the meaning of Art.20(1) of the Constitution. Nor could it be equated to forfeiture of property under s. 53 of the Indian Penal Code The Ordinance provided.for no punishment or penalty, but for attachment of the money or property procured by the offence or any other property of the offender in case the above property was not available, to prevent the disposal or concealment of such property. The forfeiture provided by it was in effect a speedier method of realising Government money or property than by a suit which the Government was entitled to bring without in any way affecting the right to realised the fine imposed by the Criminal Court in connection with the offence. That section was not concerned with any conviction or punishment and Art. 20(1) could, therefore, have no applications to orders passed under it. |
