Back
Supreme Court Of India
State of West Bengal
Versus
S. K. Ghosh
Decided On : April 16, 1962
CRIMINAL LAW - FORFEITURE - CRIMINAL LAW AMENDMENT ORDINANCE (NO. 38 OF 1944), SECTIONS 3, 12, 13 - INTERPRETATION - SCOPE AND APPLICABILITY - CONSTITUTION OF INDIA, ART. 20 (1) - APPLICABILITY.
Fact of the Case:
The respondent, a Chief Refugee Administrator, was convicted of embezzlement and conspiracy under Sections 120B and 409 of the Indian Penal Code. During the pendency of the trial, the Criminal Law Amendment Ordinance (No. 38 of 1944) was enacted, which provided for the attachment and forfeiture of property procured by means of certain scheduled offenses, including Section 409 IPC. The respondent's properties were attached under Section 3 of the Ordinance, and after his conviction, the District Judge ordered the forfeiture of properties worth Rs. 30 lacs, the amount found to have been procured by the respondent through the offense, under Section 13(3) of the Ordinance. The respondent challenged the order, arguing that a specific finding under Section 12 of the Ordinance was required before forfeiture could be ordered, and that the forfeiture amounted to a penalty violative of Article 20(1) of the Constitution.
Finding of the Court:
The Supreme Court held that a specific finding under Section 12 of the Ordinance was not required, as the finding of the amount procured by the offense made by the trial court under Section 10 of the Criminal Law Amendment Ordinance (No. 29 of 1943), as amended in 1945, was sufficient compliance with the requirement of Section 12(1). The Court further held that the forfeiture under Section 13(3) was not a penalty within the meaning of Article 20(1) of the Constitution, but a method of recovering government property embezzled by the respondent, and therefore, Article 20(1) did not apply.
Issues: 1. Whether a specific finding under Section 12 of the Criminal Law Amendment Ordinance (No. 38 of 1944) was required before forfeiture could be ordered under Section 13(3) of the Ordinance. 2. Whether the forfeiture under Section 13(3) of the Ordinance amounted to a penalty violative of Article 20(1) of the Constitution.
Ratio Decidendi: 1. A specific finding under Section 12 of the Ordinance was not required, as the finding of the amount procured by the offense made by the trial court under Section 10 of the Criminal Law Amendment Ordinance (No. 29 of 1943), as amended in 1945, was sufficient compliance with the requirement of Section 12(1). 2. The forfeiture under Section 13(3) of the Ordinance was not a penalty within the meaning of Article 20(1) of the Constitution, but a method of recovering government property embezzled by the respondent, and therefore, Article 20(1) did not apply.
Final Decision: The Supreme Court allowed the appeal, set aside the order of the High Court, and restored the order of the District Judge, directing the forfeiture of properties worth Rs. 30 lacs under Section 13(3) of the Ordinance.
Judgment
WANCHOO
( 1 ) THIS is an appeal on a certificate granted by the Calcutta High Court. The respondent was appointed the Chief Refugee Administrator of the Burma Refugee Organisation in November 1942 and held that post till 25/08/1944, when he was suspended. He was believed to have embezzled large sums of money belonging to Government which were at his disposal as the Chief Refugee Administrator in conspiracy with certain persons. It was in that connection that he was suspended on 25/08/1944 and investigation into the alleged offences began thereafter. In that connection, the respondent was arrested in October 1914 and was bailed out. Eventually on 21/07/1945 the respondent was prosecuted under Sections 120b 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 meantime, 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, S. 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 Government believed the said person to have procured by means of the offence. But if for some reason such money or property could not be attached, the Provincial Government was given power to apply for the attachment of other property of the said person of value as nearly as might be equivalent to that of the aforesaid money or property. S. 3 therefore provided for something like what is attachment before judgment in a civil Court, and the Provincial Government was authorised to apply for attachment either of the money or property with respect to which the offence was said to have been committed and if that was not available, other property of equal value could be attached even though no offence had been committed with respect to that other property. Consequently, on 21/11/1944, an application was made on behalf of the Provincial Government before the District Judge for attachment of certain properties under S. 13 of the 1944 - Ordinance on the ground that these properties had been purchased by the respondent with moneys procured by him by committing offences under Sections 120-B and 409 of the Indian Penal Code. On 22/02/1945, another application was made for attachment of certain other properties. The District Judge ordered attachment of these two sets of properties after hearing the respondent and the orders of attachment have been extended from time to time. This took place even before the case of the respondent was sent up for trial before the Special Tribunal.
( 2 ) THE respondent was eventually convicted by the Special Tribunal after a protracted trial on 31/08/1949. In the meantime the Criminal Law (1943 Amendment) Amending Ordinance No. 12 of 1945, (hereinafter REFERRED TO as the 1945 - Ordinance) came into force on 12/05/1945. By this Ordinance, S. 10 of the 1943-Ordinance was amended and the amended section was in these terms :
"when any person charged before a Special Tribunal with an offence specified in the Schedule is found guilty of that offence, the Special Tribunal shall, notwithstanding anything contained in the Indian Penal Code (XLV of 1860), whether
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
