N. Naveen Kumar and Ors Vs. State of A.P.
EmailAppeal: Criminal Appeal No. 1627 of 2008
Arising out of SLP (Crl) No. 5252 of 2006
[From the Judgement and Order dated 27.4.2006 of High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Misc. Petition No. 247 of 2006 in Criminal Appeal No. 1524 of 1998]
Arising out of SLP (Crl) No. 5252 of 2006
[From the Judgement and Order dated 27.4.2006 of High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Misc. Petition No. 247 of 2006 in Criminal Appeal No. 1524 of 1998]
Petitioner: N. Naveen Kumar and Ors
Respondent: State of A.P.
Apeal: Criminal Appeal No. 1627 of 2008
Arising out of SLP (Crl) No. 5252 of 2006
[From the Judgement and Order dated 27.4.2006 of High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Misc. Petition No. 247 of 2006 in Criminal Appeal No. 1524 of 1998]
Arising out of SLP (Crl) No. 5252 of 2006
[From the Judgement and Order dated 27.4.2006 of High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Misc. Petition No. 247 of 2006 in Criminal Appeal No. 1524 of 1998]
Judges: Dr. Arijit Pasayat & P. Sathasivam, jj
Date of Judgment: Oct 17, 2008
Appearances:
Appearances
Mr. Sarvesh Bisaria and Mr. Anil Nag., Advocates for the Appellant.
Ms. Altaf Fathima and Mrs. D.Bharathi Reddy, Advocates for the Respondents
Mr. Sarvesh Bisaria and Mr. Anil Nag., Advocates for the Appellant.
Ms. Altaf Fathima and Mrs. D.Bharathi Reddy, Advocates for the Respondents
Head Note:
Criminal Laws
Criminal Procedure Code, 1973
Section 482 – Power and extent – Conviction under prevention of Corruption Act 1947 Properties ordered to be sold in auction – Appeal preferred by convict, but dismissed – Convict also died-Application by LRs for permission to deposit the amount in lieu of confiscation – Denial of grounds that there is no power to review – If High Court has power to make such order. Held that High Court was justified in observing that present value of properties is relevant and not value at relevant time. (Paras 3.1- 7)
Criminal Procedure Code, 1973
Section 482 – Power and extent – Conviction under prevention of Corruption Act 1947 Properties ordered to be sold in auction – Appeal preferred by convict, but dismissed – Convict also died-Application by LRs for permission to deposit the amount in lieu of confiscation – Denial of grounds that there is no power to review – If High Court has power to make such order. Held that High Court was justified in observing that present value of properties is relevant and not value at relevant time. (Paras 3.1- 7)
JUDGEMENT:
Dr. ARIJIT PASAYAT, J
1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Andhra Pradesh High Court dismissing the application filed by the appellants.
3. Background facts in a nutshell are as follows:
3.1 The appellants are the sons and daughters of the accused N. Ramakrishnaiah in C.C. No.64 of 1992 on the file of the Principal Special Judge, for SPE and ACB Cases, Hyderabad. He was charged for the offence under Section 5 (1)(e) read with Section 5 (2) of the Prevention of Corruption Act, 1947 (in short the `Old Act’) possessing the pecuniary resources disproportionate to the known sources of income. The accused worked as Executive Engineer as on the date of search of his house and other properties. Evidence was adduced and the Special Judge found the accused guilty, convicted him for the above mentioned offence and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.20,000/- in default to suffer simple imprisonment for three months. The Special Judge also directed that item No 1 to 4 of the assets shall be sold in public auction and the sale proceeds shall be confiscated to the State. The accused, being aggrieved by the conviction and the sentence imposed by the Special Judge preferred Criminal Appeal No.1524 of 1998. The High Court dismissed the appeal. As noted above, during the pendency of the appeal before the High Court, the appellant died, therefore, the sentence of imprisonment stood abated against the appellant. Prayer before the High Court was that the appellants may be permitted to deposit entire amount of Rs.6,37,850.92 or such sum as may be considered appropriate in lieu of the confiscation of Item Nos.1 to 4 of the assets possessed by the accused in the case. It was pointed out that Item No.1 was a house property. The appellants had sentimental attachment to the properties. Stand of the State was that since Criminal Appeal was dismissed there was no scope for passing the order as the Court had become functus officio. The appellants’ stand was that Section 482 of the Code of Criminal Procedure, 1973 (in short `CrPC’) permitted the course to be adopted. The High Court did not find any substance in the plea and it was held that Section 482 CrPC did not empower the Court to review its own judgment by exercising inherent powers.
4. Learned counsel for the appellants submitted that since the appellants are willing to deposit money there is no reason as to why the High Court should not permit release of the properties in favour of the legal heir of deceased accused. Undisputedly, when the offence was committed Section 5(2) of the Old Act was in force which reads as follows:
‘5(2)- Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine:
Provided that the Court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year.’
5. The corresponding Section 13(2) of the Prevention of Corruption Act, 1988 (in short the `Act’) reads as follows:
‘Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.’
6. According to the appellants in an appropriate case the fine amount as imposed can be enhanced and the custodial sentence can be reduced. We need not go into that question because Section 16 of the Act reads as follows:
‘Matters to be taken into consideration for fixing fine- Where a sentence of fine is imposed under sub-section (2) of Section 13 or Section 14, the court fixing the amount of the fine shall take into consideration the amount or the value of the property, if any, which the accused person has obtained by committing the offence or where the conviction is for an offence referred to in clause (c) of sub-section (1) of section 13, the pecuniary resources or property referred to in that clause for which the accused person is unable to account satisfactorily.’
7. The High Court has rightly noted that it is the present value of the properties which is of relevance and not the value of the assets at the relevant point of time of seizure. We find no substance in the plea of the appellants as canvassed in this appeal. It is open to the appellants to participate in the auction for sale of the properties in question as and when held.
8. The appeal is dismissed.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Andhra Pradesh High Court dismissing the application filed by the appellants.
3. Background facts in a nutshell are as follows:
3.1 The appellants are the sons and daughters of the accused N. Ramakrishnaiah in C.C. No.64 of 1992 on the file of the Principal Special Judge, for SPE and ACB Cases, Hyderabad. He was charged for the offence under Section 5 (1)(e) read with Section 5 (2) of the Prevention of Corruption Act, 1947 (in short the `Old Act’) possessing the pecuniary resources disproportionate to the known sources of income. The accused worked as Executive Engineer as on the date of search of his house and other properties. Evidence was adduced and the Special Judge found the accused guilty, convicted him for the above mentioned offence and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.20,000/- in default to suffer simple imprisonment for three months. The Special Judge also directed that item No 1 to 4 of the assets shall be sold in public auction and the sale proceeds shall be confiscated to the State. The accused, being aggrieved by the conviction and the sentence imposed by the Special Judge preferred Criminal Appeal No.1524 of 1998. The High Court dismissed the appeal. As noted above, during the pendency of the appeal before the High Court, the appellant died, therefore, the sentence of imprisonment stood abated against the appellant. Prayer before the High Court was that the appellants may be permitted to deposit entire amount of Rs.6,37,850.92 or such sum as may be considered appropriate in lieu of the confiscation of Item Nos.1 to 4 of the assets possessed by the accused in the case. It was pointed out that Item No.1 was a house property. The appellants had sentimental attachment to the properties. Stand of the State was that since Criminal Appeal was dismissed there was no scope for passing the order as the Court had become functus officio. The appellants’ stand was that Section 482 of the Code of Criminal Procedure, 1973 (in short `CrPC’) permitted the course to be adopted. The High Court did not find any substance in the plea and it was held that Section 482 CrPC did not empower the Court to review its own judgment by exercising inherent powers.
4. Learned counsel for the appellants submitted that since the appellants are willing to deposit money there is no reason as to why the High Court should not permit release of the properties in favour of the legal heir of deceased accused. Undisputedly, when the offence was committed Section 5(2) of the Old Act was in force which reads as follows:
‘5(2)- Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine:
Provided that the Court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year.’
5. The corresponding Section 13(2) of the Prevention of Corruption Act, 1988 (in short the `Act’) reads as follows:
‘Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.’
6. According to the appellants in an appropriate case the fine amount as imposed can be enhanced and the custodial sentence can be reduced. We need not go into that question because Section 16 of the Act reads as follows:
‘Matters to be taken into consideration for fixing fine- Where a sentence of fine is imposed under sub-section (2) of Section 13 or Section 14, the court fixing the amount of the fine shall take into consideration the amount or the value of the property, if any, which the accused person has obtained by committing the offence or where the conviction is for an offence referred to in clause (c) of sub-section (1) of section 13, the pecuniary resources or property referred to in that clause for which the accused person is unable to account satisfactorily.’
7. The High Court has rightly noted that it is the present value of the properties which is of relevance and not the value of the assets at the relevant point of time of seizure. We find no substance in the plea of the appellants as canvassed in this appeal. It is open to the appellants to participate in the auction for sale of the properties in question as and when held.
8. The appeal is dismissed.
