# STATE OF WEST BENGAL v. S. K. GHOSH

- **Citation:** [1963] 2 S.C.R. 111
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** Special Tribunal, functioning under the Criminal Law Ordinance No. 29 of 1943
- **Bench:** H.P. Sinha, P. B. Gajendragadkar, K. N. Wanchoo, N. Rajagopala Ayyangar, T. L. Venkatarama Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-west-bengal-v-s-k-ghosh-2656
- **Pages:** 24

## Headnote

' Attached Property, Disp(,sal of-TerminatiOn of Orimi..al
Proceeding for scheduled offence-Order of District Judge-- Vali·
dity-Forfeiture, if a penalty-Criminal Law Amendm~nt
Ordinance; 1944(38 of 1944), ss. 13(3), 12(1)3.-0riminal Law
Amendment Ordinance, 1943 (29 of 1943), aa amended by Criminal Law (11143 Amendment) Amending 0, dinance, 1945( 12
of 1945), s.10---0onstitution of India, Art. 20(1)-lndian
Penal Gode, 1860(Act 56 of 1860), sa. 120B, 409, 53.
The respondent, who was the Chief Refugee Administrator
of Burma Rofugec Orga':'isatfon from November, 1942, to
August 25, I 944, was
tried
under ss. I 20B and 409 of the
Indian Penal Code by the Second Special Tribunal, functioning under the Criminal Law Ordinance No. 29 of 1943 as
amr.nded by Criminal Law (1943 Amendment) Amending
Ordinance No. I 2 11f I 945. On an application made on
1962 -
.4pril 16.
1962
S~ rif U'ut B1ngal
••
S.K. i·hosli
112
SUPREME OOURT REPORTS (1963J
behalf of the Provincial Government under s. 3 of the Criminal Law Amendment Ordinance, ]l;o. 38 of 1944, the District
Judge atlachcd cettain properties as having been purchased
by the respondent with QJ.Oncy procured by the said offence.
The Special Tribunal found the respondl:nt guilty and sentenced him to rigorous itnprisonment for five years and a fine of
Rs. 45 lacs as in its view the money procured by the offences
exceeded thiit amount. On appeal by the respondent the
High Court affirmed the order of conviction and sentence.
"fhcrc 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. 1 ~ of the l 944 Ordinance passed the order, out of which
the present appeal arose, directing that Rs. 30 lacs together
with the co<t 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 res.idue of
the attached properties and directed the receiver to report
as to the valuation and the cost of attachment and manage·
ment 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 heen obtained under s. 12(1) of that Ordinance, no
application lay under s. 13(3) thereof and the other on the
ground that since forfeiti.Jre \\'3S not prescrib<:d as punishment hc!ore the 1944 Ordinance and that Ordinance came
into force after the offence has Ueen committed, any forfeiture
ordered under tne 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 Pi:<>-
pcrty that had been procured by the accused by the com~IS
sion 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 .•·
~ 0 of the 1943 Or~inance
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 bys. 3 of
the l 944 Or;linance for the purpose of attachment, s. 12 wa•
ooncerocd only with the determination of the value of such
>
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2 S.C.R.
SUPREME COURT REPORTS
113
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 proc

## Text

_Characters 0–39,986 of 48,007. This is a partial read: ask again with offset=39986 for what follows._

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•
2 s.c.R.
SUPREME OOUR'r REPOR'l's
111
I do not see how these observations help the appelI9BB
lant. They only state the obvious, ne.mely, the.t if
Da••,.,, of BAimJi
there was a law within the meaning of the amended
Goliil
article, no question of infringing -the fundamental
Joint cM:icontrolu•
right would arise. There is no force in this .arguof Imports 4' Eyor11
ment. This question anyhow does not affect my
Subb• Rao J•
decision, as I have come to the conclusion that the
Press Notes issued by the Government dearly infringed the fundamental right of the petitioner.
But, in view of the fact that the period for
which licence was asked had run out, the application in respect thereof has become infructuous and,
therefore has to be dismissed. In the result, the
appeal is dismissed, but, in the circumstances· of
this case, without costs.
STATE OF WEST BENGAL
v.
S. K. GHOSH
(H.P. SINHA, c. J., P. B. GAJENDRAGADKAR, K. N.
WANCHOO, N. RAJAGOPALA AYYANGAR and
T. L. VENKATARAMA AIYAR, JJ.,)
' Attached Property, Disp(,sal of-TerminatiOn of Orimi..al
Proceeding for scheduled offence-Order of District Judge-- Vali·
dity-Forfeiture, if a penalty-Criminal Law Amendm~nt
Ordinance; 1944(38 of 1944), ss. 13(3), 12(1)3.-0riminal Law
Amendment Ordinance, 1943 (29 of 1943), aa amended by Criminal Law (11143 Amendment) Amending 0, dinance, 1945( 12
of 1945), s.10---0onstitution of India, Art. 20(1)-lndian
Penal Gode, 1860(Act 56 of 1860), sa. 120B, 409, 53.
The respondent, who was the Chief Refugee Administrator
of Burma Rofugec Orga':'isatfon from November, 1942, to
August 25, I 944, was
tried
under ss. I 20B and 409 of the
Indian Penal Code by the Second Special Tribunal, functioning under the Criminal Law Ordinance No. 29 of 1943 as
amr.nded by Criminal Law (1943 Amendment) Amending
Ordinance No. I 2 11f I 945. On an application made on
1962 -
.4pril 16.
1962
S~ rif U'ut B1ngal
••
S.K. i·hosli
112
SUPREME OOURT REPORTS (1963J
behalf of the Provincial Government under s. 3 of the Criminal Law Amendment Ordinance, ]l;o. 38 of 1944, the District
Judge atlachcd cettain properties as having been purchased
by the respondent with QJ.Oncy procured by the said offence.
The Special Tribunal found the respondl:nt guilty and sentenced him to rigorous itnprisonment for five years and a fine of
Rs. 45 lacs as in its view the money procured by the offences
exceeded thiit amount. On appeal by the respondent the
High Court affirmed the order of conviction and sentence.
"fhcrc 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. 1 ~ of the l 944 Ordinance passed the order, out of which
the present appeal arose, directing that Rs. 30 lacs together
with the co<t 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 res.idue of
the attached properties and directed the receiver to report
as to the valuation and the cost of attachment and manage·
ment 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 heen obtained under s. 12(1) of that Ordinance, no
application lay under s. 13(3) thereof and the other on the
ground that since forfeiti.Jre \\'3S not prescrib<:d as punishment hc!ore the 1944 Ordinance and that Ordinance came
into force after the offence has Ueen committed, any forfeiture
ordered under tne 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 Pi:<>-
pcrty that had been procured by the accused by the com~IS
sion 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 .•·
~ 0 of the 1943 Or~inance
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 bys. 3 of
the l 944 Or;linance for the purpose of attachment, s. 12 wa•
ooncerocd only with the determination of the value of such
>
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•
) )
2 S.C.R.
SUPREME COURT REPORTS
113
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 propertie• 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(31 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 pro·
perty was not available, to prevent the disposal or conceal·
ment of such property. The forfeiture provided by it was
in effect a sp"edier 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. 'fhat section was not concerned with any convic~
tion <r punishment and Art. 20(1) could, therefore, have no
applications to orders passed under it.
Rao Shiv Bahadur Singh v. Stat• of Vindha Pradesh,
(1953) S.C.R. 1188, referred to.
CRIMINAL APPELLATE JURISDICTION,
Criminal Appeal No. 140 of 1959.
Appeal from the judgment and order dated
August ·10/22, 1958, of the Calcutta High Court
in Criminal Appeal No. 176 of 1958.
'
the
B. Sen, P. K. Ohatterju and P. K. Bose, for
appellant.
N. O. Chatterjee and S. 0. Mazumdar, for the
respondent.
.
0. K. Daphtary, 1Solicitor-General of India, ·
,~ B. R. L. lyengar and P. D. JJ!enon, for the Inter.
vener,
1961
Slate of W esl B1n1ol
••
S,K, G;osh
1963
Stau oj W esl l:fengal
••
S.K. Ghosh
WanohOfJ J.
114
SUPREME OOURT REPOB.TS.[1963]
1962. April 16. The Judgment of the Court was
delivered by
WANCHQO, J.-'This is an _appeal on a certifieata granted by th() Calcutta. High Court. The res·
pon<).ent was appointed the Chief: Refugee Administrator 0£ the Burma Refugee Organisation in~Nov
ember, }942, ann held that post till August 25, .1944
when he was suspended. He was believed to have
emb_ezzled large sums of money belonging GovernmC1ntwhic4 were at his disposal as the Chief Refu-
/
gee Administrator, in conspiracy with certain per-
~
sons. It was in t.hat connection that he was sμspended on 4.ugust 25, ,1944, and investigation into
t.he alleged offences began thereafter. In tqat connection, the respondent waa arrestell"in Oc:tober,
1944, and was bailed out. Eventually, on July 21,
1945.
the resp01;1dent
was prosecuted
under
ss. 120-B and 409 of the Indian Penal Code "before
the Second Special Tribunal constituted under the
Criminal Law. Amendment Urdinance, No. 29 of
194.;
(hereinafter refnre<l to as the 1943-0rdinanC'e). In the mean time, the Criminal Law
Amendment Ordinance No. 38 of 1944 (hereinafter
referred to as the L944-0rdinance) was passed. The
object of this Ordinance was to prevent the disposal or concealment of money or other property
procur1id by means of certain schodnled offences
punishable uncler th" Tndian Penal. Code, and one
or the offenoos to which this Ordinance applied was
s. 409 of t])e Indian Penal Code, and any conspiracy
to commit suuh offen0e.
Section 3 of this ·Ordinance provided that whPTe tho Provincial Government had reason ,to belir.ve that any person had
committed (whbth-.r after t4o commencement. of
this Ordinance or not) any scheduled offence~ the
Provincial Governmc·nt was empnwer~d (whether
or not thP. Court had taken cognizance of the off.
ence) to make an application to th" District Judge
within thH Jorn,] limits of whose jurisdict.ion the r
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2 ~.C.R.
SUPREME COURT REPORTS
115
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 perdon to have procured by means of the
offence. But if for some reason such money ·or
propertJI could not be attached, the Provincial
Government was given power to apply for the att·
achment of other property of the said person of
value as nearly as might be equivalent to that of
the aforesaid money or property. Section 3 there·
fo:re provided for something like what is attachment before judgment in a civil. court, and the
Pfovincial 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 be<>n committed with
respect to that other property. Consequently on
Noveip.ber 21, I 944, an application was made on be·
half of the Provincial Government before the District
Judge for att~chment of certain properties under
s. 3 of the 1944-0rdinanoe on the ground that these
properties had been purchased by the respondent
with moneys procured by him by committing offfnces
under ss. 120-B and 409 of the Indian Penal Cude.
On February 22, 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 · t.ime. This took place even before
the case of the. respondent was sent up for trial
before the Special Tribunal.
The respondent was eventually convicted by
the Special Tribunal after a protracted trial on
August 31, 194'9. Io the meantime, the Criminal
.,.t,
Law ( 1943 Amendment) Amending Ordinance, NC>.
12 of 1945, (hereinafter referred to as the 1945
196!
81°'6 of West Bengal
v.
S K. G.los\
w.nehoo J,
19et
Stdt~ •J lt'1st Btng!l/
..
S. X. Glrosh
Wanc:hoo J
116
SUPREME COURT .REPORTS [1963)
Or.dinance) came into force on May 12, 1945.
By
this Ordinance, s. 10 of the l!l4:! Ordinance was
amended and the amended section was in these
terms:-
"When any person charged before :
Special Trihunal with an off Pnce specified i ,
the Schldule is found guilty of that offencu,
the t'pecial Tribunal shall. notwithstandir!<;
an:vthing contained in the Indian Penal Cocle
(XLV of 1860), whether or not it impcses a
sentence of imprisonment, impo•e a sentence
of fine which shall not be less in amount than
the amount of money or value of other property found to have been procured by the
offender by means of the offence."
Therefore, when the Special Tribunal found the
respondent guilty of the offences undflr BB. 120-B
and 409 of the Indian Penal Corle it sentenced him
to rigorous imprisonment for five years and a fine
of :k~. 4} lacs on the charge of conspiracy, and the
reason why the fine was fixed at Rs. 45 lace was
that in the view of the Special Tribunal, the money
procured by the respondent by means o( the offence
was over R~. 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 Hi~h Court however
found that 1ho money prorured by the respondent
by the commission of the offence of conspiracy was
at least Rs. 30 lacs.
Even so, the High Court did
not interfere with the sentence of fine imposed by
the Special Trihunal as it was of the view thats. 10
of tho 1943·0rdinance as amended in 1945 prescri·
bed 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 dismiBSed.
This Court held that on the finding it was clear that
at least Rs. 30 lacs had been misappropriated by
the respondent as a result of the oonspiracy and the
,.
-,
2 S.O.R.
SOPREME COORT REPORTS
117
minimum fine therefore had to be of that order;
but considering the serious nature of the defalcation
made by the respondent and the posilion of trust
in which he had been placed, this Court found it
impossible to interfere with the sentence. Judg·
ment of this Co'· ·: was delivered en December
12, 1956.
On January 8, 1957, an aμplioadon was made
to the District Judge concerned under s. 13 of the
194!-0rdinance, and it was prayed that as it had
been found by the courts that the respondent had
procured at least a sum of Rs. 30 lacd by corl!lJlitting
thll offences specified .in the Schedule to the 1943· ·
Ordinance, the properties attached under s. 3 of the
19<l4-0rdinance, which were in the hands of a
receiver, might be confiscated and receiver be ordered to hand over all the properties in his hands to
the Government of India. An ex parte order was
passed by the District Judge nllowing the applica·
tion on January 10, 1957.
Thereafter, applications
were made by the respondent and his wife for vacating this ex parte order and on May 11, 1957, the ex
parte order was vacated. Finally, on March 22,1958,
the District Judge passed the order which is now
under appeal, after hearing the respondent and his
wife. The main objection taken before the District
Judge appears to have been that there was no finding under s. 12 of the 1914-0rdinance and therefore
it was not open to the District Judge to take action
under s. 13 of the 1944-0rdinance. The District
Judge repelled this objection and held on a construction of ss. 12 and 13 (a) of the 1914-0rdinance that
the amount of .Rs. 30 111.cs together with the cost of
s.ttabhment had first to be forfeited to th., Union
1>f India from the properties attached and thereafter
'he fine of Rs. 45 laos was to be recovered from the
Tesidue of the said attached properties. As however
it was not possible to forfeit pre1pertJes to the
1962
Star~ of lf es' Bengal
v.
S. K. Ghosh
W .. nc.~oo J.
1961
8falc •f w "' &ogol
••
S.IL GA06A
iv""'""" J.
118
SUPREME COURT REPORTS (19Ci3J
value of Ra. 30 lacs without valuation of the p110pertiea, the District Judge directed the receiver to
report as to the coat of attachme_ni including the
C05t of management of the properties attached. He
also directed the parties to submit their e~t imat ea
ae to the value of the propertteA attached, with the
proviso that, if there was no agreement between
them, a. valun would be appointed by the court to
evaluate the propertie~ under attachment.
The resvondent then went in appeal to the
High Court and challenged the order of the District
J uage. This appeal we.~ beard by a. Division Bench
of theHigh l.Jourt conai•tiug of Mitter and
Bhattacha.ry .. , JJ.
.l wo pointa were urged before
the High Cou1t in thi~ cOllllt:ction.
The first we.a
that a.a no proccedmga under a. J 2 ot the 1944·
Ordinllllce ha.d been ta.ken as to the money which
had been procured by the commie:;ion of th" offence
and no finding had betin arrived a.t under that sec·
Lion, it we.a not open to the District Judge to take
vroceedinga unaer a. 13 of the llH4-0rdina.nce.
l:)eeondly, 1t was urged that even if it were open to
the Dititrict Judge to take proceedings under s. 13,
the proceeuings could not go on in vww of Art. zO( 1)
of the Constitution.
Mitter, ,)., on a construction of llS. 12 and 13
of the 1944-0idma.nce held that only if an order s. l:l
had been obtained, it would Ile open to take acuon
under s. 13; t..ut a.a in hia view no order under a. 12
'"
had been obti>ined, and a.II that had been found wae
that the r :ispondent had obta.mea at lea.at Ha. aO
lacs by the commission of the offence under s. 10 of
the 194::! Ordinance a.a a.mended in 1945, th"t wl>B
not what we.a required under 8. I :l. Therefore, he
held that no proceedings under 8. 13 could be taken
for forfeiture of Ha. ;JO is.ca worth of properties and
,.
a.II that could be done was only to recover the fine
of .!:ts. 45 la.cs.
In vew of this finding, Mitter, J., ;.
,
, ,•
1
2 S.C.R. SUPREME COURT REPORTS
119
did not expre~s any opinion as to the applicability
of Art. 20(1} of the C<•nstitution.
Bhattacharya J. on the other hand did not
agree with the view expressed by Mitter J. on the
interpretation of ss. 12 and 13
of the 19440rdinance. In his opinion, the District Judge had
jurisdiction to forfeit properties worth Rs. 30 lacs
under s. 13. But he was of opinion that s. , 53 of
the Indian Penal Code refers to forfeiture as punishment as distinct from fine and as the punishment
of forfeiture, as contemplated by the 19440rdinance had yet to take place, Art. 20(1) of the
Constitution would apply. His reason for coming
to this conclusion was that the 1944-0rdinance came
into force on Augu~t 23, 1944, while the real aud
effective period during which the offences were
committed ended with July 1944. Therefore,
accor,ding to him, as forfeiture was not prescribed
as a punishment before the 1944-0rdinance and as
that Ordinance came into force after the offences
with which the respondent was charged had been
committed, no forfeiture could be ordered under the
1944-0rdinance as that would be violative of
Art. 20(1) of the Constitution. He therefore agreed
with Mitter J. that the order of the District Judge
should be quashed but for a different reason.
Thereafter, the State of West Bengal applied for a
certificate, which was granted; and that is how the
matter has come up before us.
The contention of the appellant is that the
view of Mitter J. that a specific order in terms of
s. 12 of the 1944-0rdinance was required in this case
was .not correct, and that in any case an order
under s. 12 had been passed in substance in this
case by the court trying the respondent and therefore the Distriot Judge would have jurisdiction to
...i.
forfeit properties up to the value of Rs. 30 lacs
under s. 1 3.
Incidentally, Mitter J. had also held
1961
State of Wist Btntal
••
S. K, Ghosh
Wanchoo J.
J~&I
S1e1e of Wu• Bengal
••
S.K. GllH/o
Wenchoo J.
120
SliPREME OOOR.T REPORTS [1963)
that it was the duty of the court trying the reapon ·
dent to value properties attached under s. 12, a.nd
as tha.t had not been <lone it was another ground
for holding tha.t no action could be taken und•·r
s. 13. This view of Mitter J. is also challenged by
the appellant. The appellant further challenges
the view of Bhattacharya J. that Art. 20( 1) applies
in the circum;tances of this ca.se, and it is contend·
cd that the provision in s. 13 ,,f the 1944-0rdinance
for forfeiture is not a punishment but m•~rely !\
method of realising money of the Government which
had been embezzled by the respondent and therefore
Art. 20(1) had no application. It is urged th1t it
would have been open t,0 Governmont to file a suit
to recover the money or the property embezzled
and that s. 13 only provides a speedier remedy for
attaining the Ma.me object.
Learned counsel for the
respondents on the other hand supports the viow
taken by the High Court on both points a.nd
Url!~S
that there is no rea.son to interfere with the order
passed by the High Court.
We shall first consider the view of Mitter J.
as to the interpretation of ss. 12 and 13 of the I !l4t.
Ordinance. The two sections read as follows : -
• '] 2.
Criminal Courts w evaluate property
procured /,y scheduled offence.:-
( I) Where before judgment is pronounced
in any criminal trial for a scheduled offence it
is representi:d to the Court that an order of
attachment of property has been passed under
this Ordinance in oonni:ction with such offence,
the Court shall, if it is convicting the ac<;Used,
record a finding as to thl'I amount of money or
value of other property procured by the a.ccus·
ed by means of the offence.
(2) In any appeal or revisional proceedinge against such conviction, the apJ>6llate or
••
,
f
2 s.c.R.
SUPREME COURT REPORTS
121
revisional court shall, unless it sets aside the
conviction, either confirm
suuh finding or
modify it in such manner as it thinks proper.
.
(:3)
In any appeal or. revisional proceed·
ings against an order of acquittal in a trial
such as is referred to in sub-section ( lJ, the
appellate or revisioual Court, if it convicts the
accused, shall record a finding such as is
referred to in that sub-section.
13. Disposal of attached property upon
t.ermination of criminal proceeriings :-
( 1) Upon the termination of any criminal
proceeding~ for any scheduled offence in
respect of which any order of attachment of
property has been made under this Ordinance
or secul'ity given i11 lieu thereof, the agent of
the Provincial Government ~hall 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 trJ·ing Court
and with copies of the judgments or orders,
if any, of the appellate or revisiorial Courts
thereon.
·
(2)
Where it is reported to the District
Judge under sub section (l) that cognizance of
the alleged scheduled offence has not been
t>:iken or where the final judgment or order of
the criminal Courts is one of acquittal, the
District Judge shall forthwith withd.raw any
orders of attachment of property made in
connection with the offence, or whf1re 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 th~
1961
Stale 11/rV~st Beng,t
..
S. K. Ghosh
Wanch•o J.
19a!~
S la/1 oJ U'1.C Bent'l
v.
S. Ir Ghosh
WGllchoo J•
122
SCPREME COURT REPORTS [1963)
property of the convicted person attached
und..r this Or<liuanc:e or out of the security
given in lieu of such attachment, the-re shall
b1• forfeited to His Majesty fiuch amount or
value as is found in the final judgment or
order of the cri.m inal Courts in purHuance of
section i 2 to h1wo been proc\lr"d by the con·
victed pnreon by means of the offence, tcigether "ith the cost of attachment ae determin·
ed by the District Judge; a.nd where th" final
jn<lgmPnt or order of the r,riminal Courts has
impo~ed or upheld a sentence of fine on the
said person (whether alone or in conjunct ion
with any other punishment), the District
Judge ma.y order, without prejudice to any
other mode of recovery, that the said fine
shall bfl recovered from the residue of the
said a.t tached prope1 ty or of the security given
in lieu of attachment.
(4)
Where the a.mounts ordered to be
forfeited or recovered under su !.-section ( 3)
P.Xceed the value of the property of the convicted person attached, and where the property ofauy trausforee of the convicted person
hl\8 been attached under section 6 the District
Judge shall order that the balance of the
amount nrdered to be forfeited under subsection (ii) together with the cost of attachment of the tra.nsferee'o property as. determin·
ed by the District ,Jurlge shall be forfeit<'d to
His Majesty from tho attached property of
the transferee or out of the security given in
lieu of such attaohment ; and the DiRtrict
Judge may order, without prt'judice to any
other modo of recovery, that any fine referred
to in sub.section (3) or any portion thereof
not recovt'red under the sub-section shall be
recovered from the attached property of the
..
•
2 S.C.R.
SUPREME COURT RFl'ORTS
traMferee or out of the security given in lieu
of such attachment.
(5) If any property remains under aUachment in respect of any scheduled offence or
any security given in lieu of mch attachment
remains with the District Judge after his
ordf'rs under eub-section (3) and (4) have been
carried into effect, the order of attachment in
respect of such prnperty remaining 'shall be
forthwith withdrawn, or as the case may be,
the remainder of the. security returned, under
the orders of the Di:!trict Judge."
We have already pointed out that the provision for
making an application for attachment iH contained
in B. 3 of the Aot.
tlection 5 then provides for
investigation of objections to attachment and under
sub-s. \3) thereof th"' District Judge is authorised
to pass an order making the attachment absolnt!)
or varying its by releasing a portion of the property
from attachment or withdrawing the order. In
the presertt case, the Distt-ict Judge made t.be order
absolute and the properties have continued under
attachment ever since. It may be mentioned that
under 's. 3 two kinds of properties may be attached;
namely, (i) the property which has been procured
by the commission of the offence, whether it be in
the form of money or in the form of movable or
immoval property, and (ii) properties other than
the above. In this case, the charge against the
respondent was that be had embezzled money. The
reason why the application for attachment under
s. 3 was made was that he had used the money
prucured by commissiou of the offence in purch11.sit;g certain properties. Therefore, the properties
attached in this case were not actually the properties procured b.v the offence but other properties.
-' But s. 13 applies whether the property attached
is of one kind or the other, and the Diatriot Judge
would have jurisdiction to deal with the prop<:irty
1962
State •J Weft Be11gal
••
s. K. Ghosh
Wanehoo J.
19fll
S.•lt of Wt.s1 B1ngol
••
I!. E. GJ..,~
WatUAu J,
124
SUPREME COUHT REPORTS [1963]
attar.bed under s. 13 for the purpose of forfeiture
provided a. 12 bas been complied with.
The qutation therefore that falls for oonsideratiou is the meani11g of s. 12( I). The sub-section
lays down that before the judgment is Jironounced
by the court trying the offender if it is represented
to the court that an order of attachment of property
hau been passed under s. 3 in connection \Ii th
such offence, the court shall, if it is convicting the
accused, n·cord a finding aa to the amount of money
or value of other property procured by "the accused
by means of the offence.
Clearly all that a. 12( If
requires is that the co11rt trying the offender should
be asked to record a finding as to the amount of
mouey or value of other property procured by the
accused before it by means of the olfenco fc.,r which
he is being tried. There is no procedure provided
for making the representation to the court to record
a finding ..a to the amount of money or value of
other prvperty prucured by the offence. In our
view, all thats. 12(1) requires ia that at the request
of the prosecution the court should give a findi
as to the amount of mon.ey or V<l.iue of other p: ,,_
pcrty procured by the accused.
H.eprel!eutation
may be.by application or even oral so Jong as the
court gives a. finding aa to the a.mount of money or
value of other property procured by the offence
that would in our opinion be sufficient oomplia.nce
with s. 12( l ).
It ia not neceaaary that the court
when it gives. a finding as to the amount of money
or value of other propert.y procured by means of
the offence should say in so many words in passing
the order that it is making th>1.t finding on a reprea1mtation
under s.
Ii ( 1). H ia
true
that
under a. 10 of the HJ43·0rdinance as amended
in 1945 the court when imposing a fine has to give
a finding aa to the a.mount of money or value of
other property found to have been procured by the
offender by means of the offence in order that it
•
• '
"
·I ,
2 S.C.R.
SUPREME COURT REPORTS
125
may comply with the provisions of s. IO as to the
minimum fine to be imposed. We see no reason
however why a finding given for the purpose of s. IO
determining the amount of money or the value of
other p~operty found to have been procured by
the offender by means of the offence should not·
also be taken as a finding under s. 12( l) of the
19!4-0rdinance. The result of the two findings in
our opinion is exactly the same, the only defference being that under s. 10 of 1943-0rdinance, as
amended in 1945, the court may do this suo mote
while under s. 12 (1) of the 1944-0rdinance it
has to be done on the 1 epresentation made by the
prosecution.
The
result
however in
either
case
is that a finding as
to
the
amount
of money or the value of other property procured
by the offender by means of the offence is given.
That is what both s. 10 of the 1943-0rdinance, as
amended in 1945, ands. 12(1) of the 1944-0rdinance require. It is true that in this case ~here was
no written application by the prosecution under
s. 12(1) of the 1914-0rdinance, but it may very well
be that the court. may have been asked orally to
determine the amount of money or value of property
procured by ·the offence. In any case so long as
a finding is there as to the amount of money or
value of other property found to have buen procured by means of the offence that will satisfy the
requirement of s.i3(1) of the 1944-0rdinance. We
are therefore of opinion that the view taken by
Bhattacharya J. is the· correct view and the view
taken by Mitter J. is not correct.
F,irther whats. 13(3) of the 194-i-Ordinance
which provides for forfeiture requires is that there
should be in· the final judgment of the criminal
court a finding as to the amount of money or value
of property in pursuance of s. 12. As soon as
.-( that finding is there, the District Judge would know
the amount he is to forfeit, and the purpose of the
. 1962
State ofWest B1ttgal
v.
S. K. Ghosh
Won,hoo J,
St.11 oj W1a1 Btng.Z
..
S, E. Ghosh
Wonchoa J.
126
SUPREME COURT REPORTS [1963)
finding is that if the District Judge is a~ked to
make a fo1feiture under s. 13 (3) he should know
exactly the amount which he is require to forfeit .
So long therefore as the criminal court trying an
offender has given a finding as the amount of
money or value of other propnty prorured by
means of tho offence in the judgment that in our
opinion is sufficient compliance withs. 12( l) of tbe
I 944·0rdinance and the rPquirement therein that it
should be o" the representation of the prosecution is
a mere formality. Obviously, even a d~t~rmination
under s. IO of the 1943.0rdinance as amended in
1945 of the amount procured by the offence must
be at the instance of the proMcution, for it is the
pro~ecution which will T·rovide the material for
that determination which in turn will be the basis
on which thf· fine will be determined by the court
unckr s. IO.
The view taken therefore hy Mitter
J. that. thne must. be a specific finding in terms to
the tfFPrt that on the representation of the prosecutic>n the court finds under s. 12(1) that such and
~uch amount was procured by means of the offence
i• not corr!'ct. In our opinion, there w11s a finding
in this case bv the criminal court about the amount
of money procured by the rc~pondent hy means of
th•' offonce. namrly at l•'ast Rs. 30 lacs. Thrrefor.,,
the District Judge would have jurisdiction on the
basis of the finding to proceed to forfeit the property a.ttar·hcd up t,o that value.
We are fnl'ther of opinion that the view taken
b.v Mittnr ,J. that the property attached uu<l"r &. 3
of the 1944 Ordinance has to be valuer! by the
criminal court is ohviou~ly incorrect and is not
born out by the terms .of a. 12(1 ). We have poinlf·d
ont that under s.~ an application can be made for
attaching two kinds of property, namely. (i) the
moiliiy or otlier Property procured by meam; of the
offence; and (ii) property other than the above.
~
What a. 12(1) requires is that where m• ney has
. '
r
____ 1
2 s.c.R.
SUPREME COURT REPORTS
127
been procured by the offence, the Criminal Court
-J
shall determine the amount of that money. Where
instead of money some other property, say, for
example, diamonds or rubies, have been procured
bv means of the offence, the Criminal court shall
value that other property. But under s. 12(1) only
the amount of money procured by means of the
offence or the value of the property procured
by means of the offence has to be determined by
the criminal court. Section 12 has notbine to do
'"
.\- , with the determination of the value of the property
other than that procured by the offence and the
criminal court has not to eyalnate thie other property, which comes under the second head under
s. 3 mentioned above. We have already pointed
out that in this case, the property procured by the
offence was only money and therefore all that the
criminal court had to do was to declare the amount
of money procured by the offence and that it has
done by finding that it was at least Rs. 30 lacs.
,.._,, Property attached under_ s. 3 in this caso was not
the property procured by the commission of the
offence. The two applications under s. 3 themselves
show that the respondent had procured money by
means of the offer1ce and had later converted that
money into this property. The property attached
in this case therefore was not property which had
been procured by the commission of the offence and
..,
\
there was therefore no question of the valuation of
the property attached under s. 3 by the criminal
court under s. 12. With rE'spect, the error in which
• Mitter J. seems to have fallen is to confuse the property which was procured by the commission of the
offence with the other property which was not
procured by the commission of the offence and
which could also be attached under s. 3. This other
property has not to be valued by the criminal court.;
it will be valued by the District Judge when he
-l comes to consider the question of forfeiture under
s, 13(3) and this is exactly what the District Judge
1962
Slat~ of We.rt Biy gal
v.
8. K. Ch1ah
IHI
State oJ .,.,,, &ngal
v.
S. li'. Ghosh
128
SUPREME COURT REPORTS (1963]
has ordered in this case. We must therefore hold
that the District Judge had jurisdiction to order
forfeiture out of the property attached to the extent
of Rs. 30 la.cs, as that was amount found by the
criminal court to have been procured hy the com·
mis•ion of the offence, and in order to effect forfeiture he would naturally have juri>diction to have
the propei:ty attached valued in order to enable
him to forfeit it under s. 19(:1) to the extent of the
a.mount procured by means of the offence.
This brings us to the oontention whioh found
favour with Bhattacharya J., namely, that the provision of s. 13{3) is a punishment a.nd that as the
l 944·0rdinance was not in force at the time when
the offence was committed s. 13(3) could not be
a.ppli!'d to the respondent inasmuch as Art. 20( 1)
lays down that no person shall be s•1bjectl'd to a
penalty grPater than that which might have been
inflicted under the law in force a.t the time of the
commi;sion of the offence. Two arguments have
been urged on behalf of the appellant in this connection.
1n 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,
19a and therefore the conspiracy by mean• of
which the money was procured continued till after the
Ordinance had come into force and thflrefore Art.20( l)
can ha.ve no application, for it cannot be said that
the respondent wRS being subjected to a penalty
greater than that which might have been inflict rd
under the law in force at the time of the commission
of the offence.
In the second place, it is urged that
the forfeiture provideri bys. 13(3) is not a penalty
at all within the meaning of Art. 2t:( I J, lout is
merely a method of recovering money belonging to
the Government which had been embazzl•·d. It is
urged that the Government could file a suit tu
recover the money embezzled and· s. 13(3) only ,.
provides a speedier remedy for that purpose and
\
..
-
2 s.c.R.
SUPREME COURT REPORTS
129
the forfeiture provided therein is not a. penalty
within the meaning of Art. 20(1).
We do not think it necessary for the purpose
of this appeal to decide whether the facts that the
respondent continued in office till August 25, 1944
and the Ordinance came into force on Augnst 23,
1944, would take the case out of the ambit of
Art. 20(1)1 for we have come to the conclusion tha.t
the forfeiture provided under s, 13(3) is not a
penalty at all within the meaning of Art. 20(1) and
the second argument urged on behalf of the appel·
lant must prevail. Now the 1944-0rdinance is a.n
independent Ordinance and is not an amendment to
the 1943-0rdinance. It is true that the Ordinance
is termed "The Criminal Law Amendment ordinan·
ce": but its provisions will show that it deals mainly
with recovery of money or property belonging to
Goverpment procured by the offender by means of
the offence. An analysis of provisions of the 1944
Ordinance will show this clearly. Section 3 provides
for application for attachment of property; s. 4
provides for an ad interim attachment; s. 5 provides
for investigation of objections to attachment; s. 6
provides for attachment of property of mala /id~
transferees; s. 7 provides for execution of orders of
attachment and s. 8 for security in lieu of attachment; s. 9 for administration of attached property
and s. IO for the duration of attachment. Section
11 provides for appeals. . Then come ss. 12 and 13.
Lastly there ares. 14 which bars certain procee·
dings and s. 15 which protects certain actions taken
in pursuance of the Ordinance. It will therefore be
clear that the Ordinance provides for no punishment
or penalty; all that it provides is attachment of the
money or property procured by the offence or any
other property of the offender ifthe above property
is not available and the. purpose of the attachment
-\ is to prevent the disposal or concealment of such
1962
State of W esl
Yo
S.K. Gh,sh
IHJ
SW, of Wm lhnl•I
••
S.lr.GhHl
W-4ooJ.
i3o SUPREME OOURT REPORTS [1963]
property. Section 13(3) with which we a.re pa.rticula.rly concerned la.ya down tha.t the District Judge
eha.ll order that from the property of the convicted
person a.tta.ohe~ under this Ordinance or out of tho'
security given in lieu of rnch atta.chment, there
shall be forfeited to His Majesty such amount or
value a.a is found in the final judgment or order of
the criminal courts in pursuance of s. 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
proTided that where the final judgmt!l1t or order of
the criminal court bas imposed ur upheld ·~sentence
of fine on the said ptrsc.in, the District Judge may
order without prejudice to any ether mode of recovery, that the said fine shall be recon·red from the
residue of tho said attached property or of the
security given in lieu of attachment. The forfeiture
by the District Judges. 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 ia undoubtedly a penalty
or punishment within the meaning of Art. 20( l );
but that order of forfeiture has to be pa6sed by the
court trying the offence, wbt re there is a provision
for forfeiture in the aecton concerned in the Indian
Penal Code. There is nothing however in tho 19440rdinance to show that it provides for any kind of
punishment for a.ny offenct>.
Further it is clear
tha.t the Court of District Judge which is a principal
oourt of civil jurisdiction can have no jurisdiction
to try an offence under the Indian Pena.I Code. The
order of forfeiture therefor~ by the District Judge
under s. 13(3) cannot bo equa.t<d to the infliction of
a penalty within tho meaning of A1t. 20(1}. Article
20(1) dee.ls with conviction of persons for offences
and for subjection of them to penalties.