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PETITIONER: STATE OF WEST BENGAL

       Vs.

RESPONDENT: S. K. GHOSH

DATE OF JUDGMENT: 16/04/1962

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. AYYANGAR, N. RAJAGOPALA

CITATION:  1963 AIR  255            1963 SCR  (2) 111  CITATOR INFO :  R          1984 SC1194  (26)

ACT: 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.

HEADNOTE: 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 112 behalf of the Provincial Government under s. 3 of the Crimi- nal  Law Amendment Ordinance, No. 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 senten- ced  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

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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  pro- perty  that had been procured by the accused by the  commis- 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 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                             113 property  alone as bad 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  convic- tion  punishment  and Art. 20(1) could, therefore,  have  no applications to orders passed under it. Rao  Shiv Bahadur Singh v. State of Vindha  Pradesh,  (1953) S.C.R. 1188, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION, Criminal Appeal No. 140  of 1959. Appeal from the judgment and order dated August 20/22, 1958, of  the Calcutta High Court, in Criminal Appeal No.  176  of

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1958. B.   Sen,  P.  K.  Chatterjee  and  P.  K.  Bose,  for   the appellant. N.   C. Chatterjee and S. 0. Mazumdar, for the respondent. C. K. Daphtary, Solicitor-General of India, B B. L.  Iyengar and P. D. Menon, for the Intervener, 114 1962.  April 16.  The Judgment of the Court was delivered by WANCHOO,  J.-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 August  25, 1944 when he was suspended.  He was believed  to have  embezzled  large sums of  money  belonging  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 August 25, 1944, and   investigation   into  the   alleged   offences   began thereafter.  In that connection, the respondent was arrested in  October, 1944, and was bailed out.  Eventually, on  July 21, 1945, the respondent was prosecuted under ss. 120-B  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  mean  time,  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.  Section 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 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  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.   Section 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 November 21, 1944,  an application was made on behalf of the Provincial  Government before   the  District  Judge  for  attachment  of   certain properties  under s. 3 of the 1944-Ordinance on  the  ground that  these properties had been purchased by the  respondent with  moneys procured by him by committing off(- noes  under ss. 120-B and 409 of the Indian Penal Code.  On February 22, 1945, another application was made for attachment of certain other properties.  The District Judge ordered attachment  of

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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. The  respondent  was  eventually convicted  by  the  Special Tribunal  after a protracted trial on August 31,  1949.   In the  meantime,  the Criminal Law (1943  Amendment)  Amending Ordinance,  No. 12 of 1945, (hereinafter referred to as  the 1945 116 Ordinance)  came  into  force  on May  12,  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 or not it  imposes  a               sentence of imprisonment, impose 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 under ss. 120-B and 409 of the Indian Penal  Code  it sentenced him to rigorous  imprisonment  for five  years  and  a fine of Es. 45 lacs  ON  the  charge  of conspiracy, and the reason why the fine was fixed at Rs.  45 lacs was that in the view of the Special Tribunal, the money procured by the respondent by means of the offence was  over Rs.  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 High  Court however  found that the money procured 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 Tribunal as it  was of  the view that s. 10 of the 1943-Ordinance as amended  in 1945  prescribed 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 dismissed.  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 conspiracy and the 117 minimum  fine  therefore  had  to  be  of  that  order;  but considering  the serious nature of the defalcation  made  by the  respondent  and the position of trust in which  he  had been  placed,  this Court found it impossible  to  interfere with the sentence.  Judgment of this Court was delivered  on December 12, 1956. On January 8, 1957, an application was made to the  District Judge  concerned under s. 13 of the 1944-Ordinance,  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  lacs  by committing  the  offences specified in the Schedule  to  the 1943Ordinance,  the  properties attached under s. 3  of  the 1944-Ordinance, 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  allowing  the application  on January 10, 1957.  Thereafter,  applications

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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-Ordinance  and therefore  it  was not open to the District  Judge  to  take action  under  s. 13 of the 1944-Ordinance.   ’The  District Judge repelled this objection and held on a construction  of ss.  12 and 13(3) of the 1944-Ordinance that the  amount  of Rs.  30 lacs together with the cost of attachment had  first to  be forfeited to the Union of India from  the  properties attached  and thereafter the fine of Rs. 45 lacs was  to  be recovered from the ,residue of the said attached properties. As however it was not possible to forfeit properties to the 118 value  of Rs. 30 lacs without valuation of  the  properties, the District Judge directed the receiver to report as to the cost of attachment, including the cost of management of  the properties attached.  He also directed the parties to submit their estimates as to the value of the properties  attached, with  the  proviso that, if there was no  agreement  between them,  a valuer would be appointed by the court to  evaluate the properties under attachment. The  respondent  then went in appeal to the High  Court  and challenged the order of the District Judge.  This appeal was heard  by a Division Bench of the High Court  consisting  of Mitter  and Bhattacharya, JJ.  Two points were urged  before the  High Court in this connection.  The first was. that  as no  proceedings under s. 12 of’ the 1944 Ordinance had  been taken  as  to  the  money which had  been  procured  by  the commission of the offence and no finding had been arrived at under that Section, it was not open to the District Judge to take   proceedings  under  s.  13  of  the   1944-Ordinance. Secondly,  it  ",as urged that even if it were open  to  the District  Judge  to  take  proceedings  under  s.  13,   the proceedings  could  not go on in view of Art. 20(1)  of  the Constitution. Mitter, J., on a construction of SS. 12 and 13 of the  1914- Ordinance  held  that  only  it an  order  s.  12  had  been obtained,  it would be open to take action under s. 13;  but as in his view no order under S 3.12 had been obtained,  and all that had been found was that the respondent had obtained at least Rs. 30 lacs by the commission of the offence  under s. 10 of the 1943 Ordinance as amended in 1945, that was not what  was required under s. 12.  Therefore, he held that  no proceedings  under is. 13 could be taken for  forfeiture  of Rs.  30 lacs worth of properties and all that could be  done was  only  to recover the fine of Rs. 45 lacs.  In  view  of this finding, Mitter, J.,                             119 did not express any opinion as to the applicability of  Art. 20(1) of the Constitution. Bhattacharya  J.  on the other hand did not agree  with  the view expressed by Hitter J. on the interpretation of ss.  12 and 13 of the 1944 Ordinance.  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 1944 Ordinance had yet to  take  place, Art. 20(1) of the Constitution would Apply.  His reason  for coming  to this conclusion was that the 1944-Ordinance  came into force on August 23, 1944, while the real and  effective

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period  during which the offences were committed ended  with July  1944.  Therefore, according to him, as forfeiture  was not prescribed as a punishment before the 1914-Ordinance 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-Ordinance 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- Ordinance  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 District Judge would have jurisdiction  to forfeit properties up to the value of Rs. 30 lacs under s. 1 3. Incidentally, Mitter J. had also held 120 that  it was the duty of the court trying the respondent  to value  properties attached under S. 12, and as that had  not been  done it was another ground for holding that no  action could be taken under 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  circumstances  of this  case,  and  it  is contended that the provision in s. 13 of the  1944-Ordinance for  forfeiture is not a punishment but merely a  method  of realising  money of the Government which bad been  embezzled by   the  respondent  and  therefore  Art.  20(1)   had   no application.   It is urged that it would have been  open  to Government  to  file  a suit to recover the  money  or,  the property  embezzled and that s. 13 only provides a  speedier remedy  for attaining the same object.  Learned counsel  for the respondents on the other hand supports the view taken by the  High  Court on both points and urges that there  is  no reason to interfere with the order passed by the High Court. We  shall  first consider the view of Mitter J.  as  to  the interpretation of se. 12 and 13 of the 1944, Ordinance.  The two sections read as follows               "12.   Criminal  Courts to  evaluate  property               procured by scheduled offence:-               (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.               (1)  In any appeal or  revisional  proceedings               against such conviction, the appellate or               121               revisional  court shall, unless it sets  aside               the 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 in a trial  such               as  is  referred to in  sub-section  (1),  the               appellate or revisional Court, it convicts the               accused,  shall  record a finding such  as  is               referred to in that sub-section.

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             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 Provincial 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 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 Courts 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               122               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 His Majesty 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 con-               victed  person by means of the offence,  toge-               ther with the cost 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  subsection  (3)               exceed the ’Value of the property of the  con-               victed 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  ordered  to be  forfeited  under  sub-               section (3) together with the cost of  attach-               ment of the transferee’s property as determin-               ed by the District Judge shall be forfeited to               His Majesty 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

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             not  recovered under the sub-section shall  be               recovered from the attached property of the               123               transferee or out of the security given in lie               of such    attachment.               (5)   If any property remains under attachment               in    respect of any scheduled offence or  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." We have already pointed out that the provision for making an application for attachment is contained in a. 3 of the  Act. Section  5 then provides for investigation of objections  to attachment  and under sub-s. (3) thereof the District  Judge is  authorised  to  pass  an  order  making  the  attachment absolute  or  varying  its by releasing  a  portion  of  the property  from attachment or withdrawing the order.  In  the present case, the District Judge made the 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  immoral property,  and (ii) properties other than the above In  this case,  the  charge against the respondent was  that  he  had embezzled  money.   The  reason  why  the  application   for attachment  under  s. 3 was made was that he  had  used  the money  procured by commission of the offence  in  purchasing certain  properties.  Therefore, the properties attached  in this  case were not actually the properties procured by  the offence but other properties.  But s. 13 applies whether the property  attached  is  of one kind or the  other,  and  the District  Judge  would have jurisdiction to  deal  with  the property 124 attached under a. 13 for the purpose of forfeiture  provided s. 12 has been complied with. The  question therefore that falls for consideration is  the meaning  of s. 12(1).  The subsection lays down that  before the judgment is pronounced by the court trying the  offender if  it  is  represented  to  the  court  that  an  order  of attachment  of  property  bad  been passed  under  s.  3  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.  Clearly all that s. 12(1) requires is that the court trying the offender should be asked to record a  finding  as  to the amount of .money or  value  of  other property  procured by the accused before it by means of  the offence for which be is being tried.  There is no  procedure provided  for  making  the representation to  the  court  to record a finding as to the amount of money or value of other property procured by the offence.  In our view, all that  s. 12(1) requires is that at the request of the prosecution the court  should  give a finding as to the amount of  money  or value   of   other  property  procured   by   the   accused. Representation may be by application or even oral so long as the court gives a finding as to the amount of money or value of other property procured by the offence that would in  our opinion  be sufficient compliance with s. 12(1).  It is  not

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necessary  that the court when it gives a finding as to  the amount of money or value of other property procured by means of  the offence should say in so many words in  passing  the order  that  it is making that finding on  a  representation under  s. 12 (1).  It is true that under S. 10 of the  1943- Ordinance as amended in 1945 the court when imposing a  fine has to give a finding as to the amount of money or value  of other  property found to have been procured by the  offender by mean,% of the offence in order that it 125 may  comply with the provisions of s. 10 as to  the  minimum fine to be imposed.  We see no reason however why a  finding given  for  the purpose of s. 10 determining the  amount  of money  or  the value of other property found  to  have  been procured by the offender by means of the offence should  not also  be  taken  as a finding under  s.  12(1)  of  the1914- Ordinance.  The result of the two findings in our opinion is exactly the same, the only difference being that under s. 10 of 1943-Ordinance, as amended in 1945, the court may do this suo mote .while under s. 12 (1) of the 1944-Ordinance it has to  be done on the representation 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  if; what  both s. 10 of the 1943-Ordinance, as amended in  1945, and s. 12(1) of the 1944-Ordinance require.  It is true that in  this  case  there  was no  written  application  by  the prosecution under s. 12(1) of the 1914-Ordinance, 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  been procured by means of the  offence  that  will satisfy the requirement of s. (12)(1) of the 1944-Ordinance. 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. Further  what a. 13(3) of the 1944-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 126 finding  is  that if the District Judge is asked to  make  a forfeiture 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 property procured by means of  the  offence  in the judgment that  in  our  opinion  is sufficient compliance with S. (21) of the 1944-Ordinance and the   requirement   therein  that  it  should  be   on   the representation  of  the  prosecution is  a  mere  formality. Obviously,  even  a determination under s. 10 of  the  1943- Ordinance  as amended in 1945 of the amount procured by  the offence  must be at the instance of the prosecution, for  it is the prosecution which will provide the material for  that determination  which in turn will be the basis on which  the fine will be determined by the court under s. 10.  The  view taken  therefore by Mitter J. that there must be a  specific finding in terms to the effect that on the representation of the prosecution the court finds under s. 12(1) that such and such  amount  was procured by means of the  offence  is  not correct.   In our opinion, there was a finding in this  case by the criminal court about the amount of money procured  by

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the respondent by means of the offence, namely at least  Rs. 30   lacs.    Therefore  the  District  Judge   would   have jurisdiction  on  the  basis of the finding  to  proceed  to forfeit the property attached up to that value. We  are further of opinion that the view taken by Mitter  J. that the property attached under s. 3 of the 1944  Ordinance has  to  be  valued  by  the  criminal  court  is  obviously incorrect and is not born out by the terms of s. 12(1).  We have  pointed out that under s-3 an application can be  made for  attaching two kinds of property, namely, (i) the  money or other property procured by means of the offence; and (ii) property  other than the above.  What s. 12(1)  requires  is that where money has                             127 been  procured  by  the offence, the  Criminal  Court  shall determine the amount of that money.  Where instead of  money some  other property, say, for example, diamonds or  rubies, have  been  procured by 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 nothing  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 evaluate  this  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  case  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 offence and  had  later converted  that  Money  into this  property.   The  property attached  in this case therefore was not property which  bad 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 respect,  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 Dot to be valued by the criminal court it will be valued  by the District Judge when he comes to consider the question of forfeiture  under  s.  13(3) and this is  exactly  what  the District Judge 128 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 lacs, as  that was amount found by the criminal court to have been procured by  the  commission of the offence, and in order  to  effect forfeiture he would naturally have jurisdiction to have  the property attached valued in order’ to enable him to  forfeit it under s.  19(3) to the extent of the amount procured  by means of the offence. This  brings  us to the contention which found  favour  with Bhattacharya J., namely, that the provision of s. 13(3) is a punishment  and that as the 1944-Ordinance was not in  force at  the time when the offence was committed s.  13(3)  could not be applied to the respondent inasmuch as Art. 20(1) lays down that no person shall be subjected to a penalty  greater

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than  that which might have been inflicted under the law  in force  at  the time of the commission of the  offence.   Two arguments have been urged on behalf of the appellant in this connection.   In  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, 1944 and  therefore the  conspiracy  by means of which the  money  was  procured continued  till after the Ordinance had come into force  and therefore  Art.20(1) can have no application, for it  cannot be said that the respondent was being subjected to a penalty greater than that which might have been inflicted under  the law  in force at the time of the commission of the  offence. In  the  second  place,  it is  urged  that  the  forfeiture provided  by  s. 13(3) is not a penalty at  all  within  the meaning  of Art. 2(1), but is merely a method of  recovering money ’belonging to the Government which had been embazzled. It is urged that the Government could file a suit to recover the  money embezzled and s. 13(3) only provides  a  Speedier remedy for that purpose and  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  August 23; 1944, would take the case out  of  the ambit of Art. 20(1), for we have come to the conclusion that the  forfeiture provided under a. 13(3) is not a penalty  at all within the meaning of Art. 20(1) and the second argument urged  on  behalf of the appellant must  prevail.   Now  the 1944-Ordinance  is  an independent Ordinance and is  not  an amendment  to  the  1943-Ordinance,  It  is  true  that  the Ordinance  is termed "The Criminal Law  Amendment  ordinance but  its  provisions  will show that it  deals  mainly  with recovery  of  money  or  property  belonging  to  Government 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   fide transferees;  s.  7  provides for  execution  of  orders  of attachment and s. 8 for security in lieu of attachment; a. 9 for  administration of attached property and a. 10  for  the duration  of attachment.  Section 11 provides  for  appeals. Then come ss. 12 and 13.  Lastly there are s. 14 which  bars certain proceedings 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 if the above property is not available and  the purpose  of  the attachment is to prevent  the  disposal  or concealment of such 130 property.   Section  13(3) with which  we  are  particularly concerned lays down that 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 His  Majesty  such amount  or value as is found in the final judgment or  order of  the criminal courts in pursuance of a. 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 provided,  that  where  the

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final judgment or order of the criminal court has imposed or upheld  a sentence of fine on the said person, the  District Judge may order without prejudice to any other mode of reco- very, that the said fine shall be recovered from the residue of  the said attached property or of the security  given  in lieu of attachment.  The forfeiture by the District Judge s. 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 is  undoubtedly  a penalty or punishment within the meaning of Art. 20(1);  but that  order  of  forfeiture has to be passed  by  the  court trying   the  offence,  where  there  is  a  provision   for forfeiture  in  the section concerned in  the  Indian  Penal Code.   There is nothing however in the 1944.  Ordinance  to show  that  it provides for any kind of punishment  for  any offence.   Further  it is clear that the Court  of  District Judge  which is a principal court of civil jurisdiction  can have  no  jurisdiction to try an offence  under  the  Indian Penal  Code.   The  order of  forfeiture  therefore  by  the District  Judge  under  s. 13(3) cannot be  equated  to  the infliction  of a penalty within the meaning of  Art.  20(1). Article 20(1) deals with conviction of persons for  offences and  for  subjection  of them  to  penalties.   It  provides firstly  that "no person shall be convicted of  any  offence except for violation of a law in force at the                             131 time  of the commission of the act charged as  an  offence". Secondly, it provides that no person shall be "subjected  to a penalty greater than that which might have been  inflicted under the law in force at the time of the commission of  the offence".   Clearly,  therefore  Art.  20  is  dealing  with punishment for offences and provides two safeguards, namely, (1)  that no one shall be punished for an act which was  not an offence under the law in force when it was committed, and (ii) that no one shall be subjected to a greater penalty for an  offence  than what was provided under the law  in  force when   the  offence  was  committed.   The   provision   for forfeiture  under  s.  13(3)  has nothing  to  do  with  the infliction of any penalty on any person for an offence.   If the forfeiture provided in s. 13(3) were really a penalty on a  convicted person for commission of an offence  we  should have  found  it  provided in  the  1943-Ordinance  and  that penalty  of  forfeiture  would have been  inflicted  by  the criminal court trying the offender. The  argument for the respondent is apparently based on  the use of the word "forfeited" in s. 13(3) and also on the  use of the word "forfeiture"’ in s. 53 of the Indian Penal Code. There  is  no doubt that forfeiture in s. 53 of  the  Indian Penal Code is a penalty but when s. 13(3) speaks of  forfei- ting  to His Majesty the amount of money or value the  other property procured by the accused by means of the offence, it in  effect  provides for recovery by the Government  of  the property  belonging  to  it, which the  accused  might  have procured  by  embezzlement etc.  The mere use  of  the  word "’forfeited"  would not necessarily make it a penalty.   The word  ,’forfeiture’  has  been used in  other  laws  without importing  the  idea  of penalty or  punishment  within  the meaning of Art. 20(1).  Reference in this connection may  be made to s. III (g) of the Transfer of Property Act (No. 4 of 1882) which talks of 132 determination of a lease by forfeiture. We are therefore of opinion  that  forfeiture provided in, a. 13(3) in  case  of offences  which involve the embezzlement etc. of  government money  or property is really a speedier method of  realising

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Government money or property as compared to a suit which  it is not disputed the Government could bring for realising the money  or property and is not punishment or  penalty  within the meaning of Art. 20(1).  Such a suit could ordinarily  be brought  without in any way affecting the right  to  realise the  fine that may have been imposed by a criminal court  in connection with the offence. We may in this connection refer to Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh (1) where Art. 20(1) came to be considered.  In that case it was held that (,the prohibition contained in Art. 20 of the Constitution against convictions and  subjections to penalty under ex post facto laws is  not confined  in  its operation to  post-Constitution  laws  but applies  also  to  ex  post facto  laws  passed  before  the Constitution  in their application to pending  proceedings." This  Court  further  held  that  Art.  20  prohibits   only conviction  or sentence under an ex post facto law, and  not the  trial thereof.  Such trial under a procedure  different from what obtained at the time of the offence or by a court, different from that which had competence at that time can- not  ipso facto be held to be unconstitutional.   Therefore, this case shows that it is only conviction and punishment as defined in s. 53 of the Indian Penal Code which are included within  Art. 20(1) and a conviction under an ex  post  facto law or a punishment under an ex post facto law would be hit by Art. 20(1); but the provisions of s. 13(3) with which  we are concerned in the present appeal have nothing to do  with conviction or punishment and (1)  [1953] S.C.R. 1188.                             133 therefore Art. 20(1) in our opinion can have no  application to the orders passed under s. 13 (3). Learned   counsel  for  the  respondent  however  drew   our attention  to  the Criminal Law  (1943  Amendment)  Amending Ordinance,  No.  7  of 1946, by which s.  10  of  the  1943- Ordinance was further amended.  It is not disputed that  the Ordinance of 1946 by which s. 10 was further amended had  no application to the trial of the respondent.  This will clear from  the judgment of the High Court in appeal filed by  the respondent  from  his conviction.  In that appeal  the  High Court  held  that s. 10, as amended by  the  1946-Ordinance, could  not apply to the case, which was pending  before  the tribunal  on  the date when the 1946-Ordinance  became  law. Therefore,  the  respondent  cannot take  advantage  of  the provisions  of s. 10, as amended by the 1946  Ordinance  and his  case  must  be governed by s. 10 as it  was  after  the amendment  of  1945.  It is clear that though s. 10  of  the 1943-ordinance,  as amended in 1945, provided for a  minimum fine,  it still left it open to the criminal court  to  pass any  fine  above the minimum.  Further the  fine  as  passed under s.10, as it was in 1945, was one fine and not  divided into two parts as was the case under the Ordinance of  1946. Again,  as the High Court pointed out in the appeal  of  the respondent  from his conviction, "the liability to  fine  in addition  to  a sentence of imprisonment for an  offence  of criminal  breach  of trust by a public servant,  or  for  an offence  of criminal conspiracy to commit an  offence  under section  409 of the Indian Penal Code was thus  not  created for  the  first time by section 10 of  the  Ordinance.   The liability  was  already there under the Indian  Penal  Code. But while under the Penal Code, it was discretionary for the court  to pass a sentence of fine, in addition to a term  of imprisonment, section 10 of the Ordinance (the 1943-Ordinan- ce) made it compulsory for the court to pass a 134

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sentence  of fine also-" and fixed the minimum.  But it  was always  open to a Court of Session under the Penal  Code  to award  any amount of fine and there was no  statutory  upper limit  to  such  imposition  except that  it  shall  not  be excessive   (see   a.  63  of  the   Indian   Penal   Code). Therefore, the fine of Rs. 45 lacs imposed in this case has nothing to do with  the amount  to  be forfeited under s. 13(3) and  simply  because that  fine was imposed after taking into account the  amount embezzled  would  make no difference so far as s.  13(3)  is concerned.   That  section  clearly  contemplates  that  the District  Judge will first forfeit the  Attached  properties upto  the  amount  of  money  determined  under  s.  12  and thereafter  if  any  further properties are  left  the  fine imposed  by  the criminal court may be realised  from  those properties.  The fact that the fine imposed by the  criminal court  may have taken into account under s. 10 of the  1943- Ordinance  the  amount  of money procured by  means  of  the offence  makes  no difference to the  interpretation  of  s. 13(3).   Therefore, the District Judge was right in  holding that out of the properties attached he had first to  forfeit properties up to the value of Rs. 30 lacs under s. 13(3) and thereafter  if any properties are left, it will be  open  to Government  to  realise the fine of Rs. 45  lacs  from  such properties.  The respondent therefore cannot take  advantage of the amendment of a. 10 of the 1943-Ordinance by the 1946- Ordinance,  and  on  the  law as it stood  in  1945  and  as applicable  to  the respondent, the order  of  the  District judge is in our opinion correct. We therefore allow the appeal and setting aside the order of the  High court restore the order of the District Judge  who will now take further steps in accordance with law. Appeal allowed,                             135