Karnataka High Court
Selvi J Jayalalitha(Deceased) vs Superintendent Of Police on 13 January, 2025
Author: V Srishananda
Bench: V Srishananda
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NC: 2025:KHC:1142
CRL.A No. 1972 of 2023
C/W CRL.A No. 1973 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO. 1972 OF 2023
C/W
CRIMINAL APPEAL NO. 1973 OF 2023
IN CRL.A No. 1972/2023:
BETWEEN:
SELVI J JAYALALITHA (DECEASED)
D/O JAYARAMAN,
REP. BY LEGAL HEIR J DEEPAK,
S/O JAYAKUMAR,
NO.13, SIVANAGNAM STREET,
T. NAGAR, CHENNAI-600 017.
...APPELLANT
(BY SRI. S. SATHEESH KUMAR, ADVOCATE FOR
SRI. UDHAYA KUMAR G., ADVOCATE)
Digitally signed AND:
by MALATESH
KC
Location: HIGH SUPERINTENDENT OF POLICE,
COURT OF
KARNATAKA VIGILANCE AND ANTI CORRUPTION,
SPL. INVESTIGATION CELL,
293, MNK RAOD, ALANDUR,
CHENNAI-600 016.
...RESPONDENT
(BY SRI. KIRAN S JAVALI, SPECIAL P.P. A/W
SRI. SANDESH J CHOUTA, SENIOR COUNSEL)
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NC: 2025:KHC:1142
CRL.A No. 1972 of 2023
C/W CRL.A No. 1973 of 2023
THIS CRL.A. IS FILED U/S 454 OF THE CR.P.C. PRAYING
TO SET ASIDE THE ORDER AND JUDGMENT PASSED BY THE
HONBLE C/C SPL.JUDGE AND XXXVI ADDL. CITY CIVIL AND
SESSIONS JUDGE, AT BENGALURU IN SPL.C.C.NO.208/2004
AS PER IMPUGNED ORDER DOC.NO.1 ORDER DATED
12.07.2023 AND THIS HONBLE COURT MAY BE PLEASED TO
PASS AN ORDER OF RETURN OF ARTICLES BOTH MOVABLE
AND IMMOVABLE UNDER SEIZURE AS PER IN ANNEXURE-I AND
ANNEXURE-II AND LIFE THE ATTACHMENT IN RESPECT OF
IMMOVABLE PROPERTIES IN ABOVE SPL.C.C.NO.208 OF 2004
BEFORE HONBLE SPECIAL COURT FOR THE TRIAL OF
PREVENTION OF CORRUPTION ACT CASES, BANGALORE,
KARNATAKA PERTAINING TO LATE DR. J. JAYALALITHAA, A-1
AND PASS SUCH FURTHER OR OTHER ORDERS.
IN CRL.A NO. 1973/2023:
BETWEEN:
J. DEEPA,
AGED ABOUT 48 YEARS,
D/O JAYAKUMAR,
OLD NO. 9, NEW NO. 13,
SIVAGNANAM STREET,
T. NAGAR,
CHENNAI - 600 017
...APPELLANT
(BY SRI. SATHYAKUMAR M., ADVOCATE)
AND:
THE SUPERINTENDENT OF POLICE,
DVAC, 293, MKN ROAD, ALANDUR,
CHENNAI- 600 016,
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NC: 2025:KHC:1142
CRL.A No. 1972 of 2023
C/W CRL.A No. 1973 of 2023
REP. BY SPL. PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE 560 001.
...RESPONDENT
(BY SRI. KIRAN S JAVALI, SPECIAL P.P. A/W
SRI. SANDESH J CHOUTA, SENIOR COUNSEL)
THIS CRL.A IS FILED U/S.454 OF CR.P.C PRAYING
TO SET ASIDE THE ORDER AND JUDGMENT DATED
12.07.2023 PASSED BY XXXVI ADDL.CITY CIVIL AND
SESSIONS JUDGE AT BENGALURU AND SPL.COURT FOR
TRAIL OF CRL.CASES AGAINST KUM.JAYALALITHA AND
OTHERS C.C.NO.208/2004.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Shri S.Satheesh Kumar, learned counsel for the appellant in Crl.A.No.1972 of 2023 and Shri Sathyakumar.M., learned counsel for the appellant in Crl.A.No.1973 of 2023. Both the appellants claiming to be the legal representatives of the deceased Selvi J.Jayalalitha-accused No.1 in Special Case No.208 of 2004 and Shri Kiran S.Javali, learned Special Public Prosecutor -4- NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 along with Shri Sandesh J Chouta, learned Senior Counsel for the Respondent.
2. These two appeals are filed by two of legal representatives of Selvi J.Jayalalitha-accused No.1 in Special Case No.208 of 2004, which ended in an order of conviction by the learned Trial Judge; acquitted by this Court in Criminal Appeal Nos.835 to 838 of 2014 by order dated 11.05.2015, which was set aside by the Hon'ble Apex Court in Criminal Appeal Nos.300 to 303 of 2017 dated 14.02.2017.
3. Relevant portion of the order of the Hon'ble Apex Court is in paragraph No.541, which is culled out herein for ready reference:
"xxxx Therefore, we hold that as the sole public servant has died being A1 in this matter, in our opinion, though the appeals against her have abated, even then A2 to A4 are liable to be convicted and sentenced in the manner as has been held by the Trial Judge".-5-
NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023
4. After the order of the Hon'ble Apex Court in the criminal appeal as referred to supra, an application under Section 452 of the Criminal Procedure Code (for short, Cr.P.C.) came to be filed by the appellants herein separately seeking for lifting the attachment in respect of immovable properties in Special Case No.208 of 2004.
Both the applications were opposed by the prosecution.
The learned Judge heard the matter on those applications filed by Shri J.Deepa, and Smt.J.Deepa who are the legal representatives of deceased accused No.1 in Special Case No.208 of 2004. Those applications were dismissed by order dated 12.07.2023.
5. Being aggrieved by the same, the applicants are before this Court in these two appeals.
6. Shri S.Satheesh Kumar and Shri Sathya Kumar.M., learned counsel representing Shri J.Deepak and Smt.J.Deepa reiterating the grounds urged in the appeal memorandum vehemently contended that as could be seen from the order of the Hon'ble Apex Court, the -6- NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 accused No.1 was convicted by the Trial Judge, acquitted by this Court in the aforesaid appeal and later on, the proceedings instituted by the State as against the accused No.1 stood abated. Therefore, accused No.1 cannot be treated as a convict resulting in the properties seized by the prosecution to be confiscated, which was the subject matter of Special Case No.208 of 2004. As such, those properties are to be returned by lifting the attachment order passed under the Ordinance to Prevention of Corruption Act, 1947.
7. They further submitted that the assets seized by the Prosecution Agency also includes the assets, which were possessed by accused No.1 earlier to check period and unless there is a segregation made by the prosecution as to what are the assets possessed by the accused No.1 before the check period and after the check period. As such, there cannot be any order of attachment which would be permitted to continue, having regard to the fact that conviction order passed by the Trial Judge, set aside -7- NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 by this Court and the appeal of the State against accused No.1 stood abated. Therefore, the impugned order in both the appeals needs to be set aside by allowing the application filed under Section 452 of Cr.P.C.
8. Shri S.Satheesh Kumar, learned counsel for the appellant representing Shri J.Deepak, one of the legal representatives of the deceased accused No.1, in addition to the oral submissions has filed written submissions.
9. For the sake of certainty, the written submissions filed by Shri S.Satheesh Kumar is culled out hereunder:
1) The Petitioner is the nephew of Selvi.J.Jayalalitha who was the A1 in the main C.C. and convicted by the Special Court for the Trial of Prevention of Corruption Act Cases, Bangalore, Karnataka, for the commission of offences under the Prevention of Corruption Act, 1988 and other related I.P.C offences, in SPL CC.No.208 of 2004 vide judgment dated 27.09.2014 and on appeal by her and other convicted accused, the judgment of conviction and Sentence passed by the Trial Court was set aside by the Hon'ble Karnataka High Court. The Judgment of acquittal passed by the Hon'ble Karnataka High Court was put to challenge in Criminal Appeal Nos.300 to 303 of 2017 and -8- NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 Criminal Appeal Nos.314 to 319 of 2017 before the Hon'ble Supreme Court. The Hon'ble Supreme Court, vide common judgment dated 14.02.2017 had passed an order of abatement as against A-1 Dr.J.Jayalalitha as she died before pronouncement of the judgment.
2) The Petitioner preferred an application under Sec.452 of Criminal procedure code read with section 13 (2) of The Criminal law(Amendment) Ordinance, 1944(38 of 1944), to claim the articles both movable and immovable under seizure as reported in Annexure-I and Annexure-II of the final report of SPL CC.No.208 of 2004 before the Hon'ble Special Court for the Trial of Prevention of Corruption Act Cases, Bangalore, Karnataka and to lift the attachment in respect of immovable properties as the Division Bench of Hon'ble Madras High Court was pleased to pass an order dated 27.05.2020 in O.P.No.630 of 2018 declaring petitioner J.Deepak and his sister J.Deepa as Legal Heirs of their Aunt A-1 Dr.J.Jayalalithaa. Further Letters of Administration has been ordered to administer the Estate of Dr.J.Jayalalithaa, both of which entitles the petitioner and his sister J.Deepa to claim whatsoever of the legal rights over the properties which the deceased A-1 possessed as she died intestate and been acquitted by the judgment and order of Hon'ble Karnataka High Court dated 11.05.2015.
3) The Petitioner submits the assets which the deceased A-1 possessed as on 01.07.1991 at the beginning of check period, i.e, the assets which cannot be quantified as disproportionate were not the subject matter of trial. The operative portion of the sentence passed by Hon'ble Special Court for -9- NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 the Trial of Prevention of Corruption Act Cases, Bangalore, Karnataka reads:
"If after adjustment, still the fine falls short, the gold and diamond ornaments seized and produced before the Court (after setting apart 7040 grams of gold with proportionate diamond jewellery), as observed in the body of the judgment shall be sold to RBI or SBI or by public auction to make deficit of fine amount good. The rest of the gold and diamond jewellery shall be confiscated to the Government."
"79.20) From the above evidence, the prosecution has proved the seizure of gold and diamond jewellery of the total weight of 27588 grams. But as it is proved in evidence that 7040 grams of gold and diamond jewellery were in possession of A-1 prior to the check period, the said quantity is required to be left out from the total computation of the value of the gold and diamond jewellery found in the possession of A-1. Thus, the total weight of the gold jewellery found in the possession of A-1 as on 30.04.1996 comes to 20548 grams."
Hence the 7040 grams of gold and jewellery and 700 Kg of Silverware which belong to A-1 prior the check period which is under seizure do not hold any attachment and has to be returned to the petitioner's as per law and therefore the application made by petitioner's U/s 452 of CR.P.C is tenable in law. Therefore the orders dated 12.07.2023 passed by the Hon'ble Special Court for the Trial of Prevention of Corruption Act Cases, Bangalore, Karnataka that "All the properties were acquired by illegal means and accordingly, ordered to be confiscated. Therefore, the properties shall go to the Government only and not in favour of the
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 Petitioners" is wrong and not sustainable in law. Further the Hon'ble Supreme court insists through its various precedents, the parties to exhaust and litigate under appropriate section at appropriate forum before approaching Apex Court.
Whether the
Asset
S.No of Asset acquired
in Annexure- Description before the
II check period
and listed in
Annexure-I
Value of seven Costly Wrist No
282. watches seized from 36, Poes No Garden on 21-12-96.
Value of 91 Wrist watches seized No
283. during the house search at No
Poes Garden.
86 items of Jewels of Yes, 86
284. Selvi.J.Jayalalitha as evaluated Items
by M/s.VBC Trust on 31-3-91.
26 items of Jewels No
286. Selvi.J.Jayalalitha as evaluated by M/s.VBC Trust on 16-1-92.
41 items of Jewels of No Selvi.J.Jayalalitha as evaluated
288. by No M/s.VBC Trust on 31-3- 92. 228 items of Jewels of No
289. Selvi.J.Jayalalitha as evaluated by No M/s.Kirtilal Kalidas and Co.
Value of 394 items of jewels No seized from the house of No Selvi.J.Jayalalitha during 12/96 (after excluding 74 items of
290. jewels out of 468 Jewels already evaluated by M/s Kirtilal Kalidas & Co. (21 items of jewels) and M/s.VBC Trust (53) items of
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 jewels).
SILVER WARE WEIGHING 1116 Yes,
KGS. The value of 700 Kgs. at Silverware
Rs.4000/- per Kg. 416. Kgs. at Weighing
291. Rs.5000/- per Kg. 700 Kgs.
=Rs.28,00,000+ Rs.20,80,000/-
(AS PER SEARCH LIST AND Kgs.
ESTIMATION) (AS OBSERVED
DURING SEARCH)
4) The Petitioner extracts and submits the relevant portion of the judgments of both Hon'ble Karnataka High Court and Supreme Court hereunder for reference with regard to the Wrist watches, remaining 20548 grams of gold and diamond jewellery out of 27588 grams of gold, and 416 Kg of Silverware out of 1116 Kg as tabulated in Annexure-II of the final report during the check period which is under seizure as follows:
Relevent portion of Judgments by Hon'ble Karnataka High Court and Supreme Court:
Criminal Appeal No.835/2014(Hon'ble Karnataka High Court):
Page 901: The Trial Court has failed to appreciate the evidence in a proper perspective. The immovable properties were acquired by borrowing huge loan from the Nationalised Banks. It is difficult to infer that the properties were acquired by means of ill-gotten money. Therefore, in my view, confiscation of the properties by the Trial Court is not sustainable in law.
Page 917: "Taking into consideration of overall circumstances and material placed on record, in my view, the Judgment and finding recorded by the
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 Trial Court suffers from infirmity and it is not sustainable in law".
Page 918 & 919: "12. In view of the above discussion, I pass the following:
[A] Criminal Appeal Nos. 835/2014, 836/2014, 837/2014 and 838/2014 are allowed.
[1] The Judgment of Conviction and Sentence passed in Spl.C.C. No. 208 of 2004, dated 27.9.2014, on the file of the 36 Additional City Civii & Sessions Judge (Spl. Court for Trial of Criminal Cases against Kum. Jayalalitha & Ors.), Bengaluru, is hereby set-aside. Appellants- Accused Nos. 1 to 4 are acquitted of all the charges leveled against them.
[ii] The Bail bonds of A-1 to A-4 are discharged.
[B] The Appeals in Criminal Appeal Nos. 17/2015, 18/2015, 19/2015, 20/2015, 21/2015 and 22/2015 are allowed in part.
[i] Order of the Trial Court relating to confiscation of the properties both movable and immovable, is hereby set aside.
Criminal Appeal No's.300-303/2017 (Hon'ble Supreme Court):
Page 536(Para-541): "Therefore, we hold that as the sole public servant has died being A1 in this matter, in our opinion, though the appeals against her have abated, even then A2 to A4 are liable to be convicted and sentenced in the manner as has been held by the Trial Judge."
Page 540(Para-542): "Accordingly, din pisw of the reasoning recorded page Soove in the preceding
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 paragraphs, we set aside the judgment and order of the High Court and affirm and restore the judgment of the trial court in toto against A-2 to A-4. However, though in the process of scrutiny of the facts and the law involved and the procericable nexus of A1 with A2 to A4, reference to her role as well as the evidence pertaining to her had been made, she having expired meanwhile, the appeals, so far as those relate to her stand abated. Nevertheless, to reiterate, having regard to the fact that the charge framed against A2 to A4 is proved, the conviction and sentence recorded against them by the Trial Court is restored in full including the consequential directions.
Respondents A2 to A4, in view of this determination and the restoration of their conviction and sentence, would surrender before the Trial Court forthwith...."
Hence it is very clear that from the date of acquittal order dated 11.05.2015 by the Hon'ble Karnataka High Court till the Hon'ble Supreme Court's judgment i.e, on 14.02.2017 and further all the charges against A-1 were discharged and there is no presumption of guilt based on the conviction and sentence passed by the trial court. With the death of an acquitted person the appeals against acquittal shall abate and there is no question of restoration of conviction, sentence and fine. With A-1 Dr.J.Jayalalithaa dies on 05.12.2016 and since the appeals so far as those relate to her stand abated by the Judgment of Hon'ble Supreme court as mentioned above, her legal heirs J.Deepak and his sister J.Deepa gets entitled with rights to claim back all the properties both movable and immovable, which are all confiscated and attached.
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 Therefore the remaining 20548 grams of gold and diamond jewellery out of 27588 grams of gold and 416 Kg of Silverware out of 1116 Kg which belong to A-1 as tabulated in Annexure-II during the check period which is under seizure do not hold any attachment and has to be returned to the petitioner's as per law and therefore the application made by petitioner's U/s 452 of CR.P.C is tenable in law.
5) The Petitioner submits that the word "Abatement" in P. Ramanatha Alyar's The Law Lexicon 5th Edition is that "In Criminal Law:
Abatement of proceedings connotes their termination without any decision on the merits and without the assent of the prosecutor".
It is humbly submitted that The Hon'ble Supreme Court in B.R. Kapur v. State of Tamil Nadu [(2001) 7 SCC 231] in para 40 observed as under:
40. .... When a lower court convicts an accused and sentences him, the presumption that the accused is innocent comes to an end. The conviction operates and the accused has to undergo the sentence. The execution of the sentence can be stayed by an appellate court and the accused released on bail. In many cases, the accused is released on bail so that the appeal is not rendered infructuous, at least in part, because the accused has already undergone imprisonment. If the appeal of the accused succeeds the conviction is wiped out as cleanly as if it had never existed and the sentence is set aside.
A successful appeal means that the stigma of the offence is altogether erased."... In this case the A-1 Dr.J.Jayalalithaa succeeded in her appeal before
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 Hon'ble Karnataka High Court in Criminal Appeal No.835 of 2014 and hence her conviction in trial court was wiped out as cleanly as if it had never existed. Since there is no charge of conviction attached to her from the date of the order dated 11.05.2015 by the Hon'ble Karnataka High Court till her date of death i.e, on 05.12.2016 and as she was under the state of acquittal during the appeal proceedings under Article 136 of Indian constitution, also as the Hon'ble supreme court abates the appeals against her, only the acquittal judgment/order of Hon'ble Karnataka High Court applies with regard to the name and properties of A-1 Dr.J.Jayalalithaa.
6) The Petitioner submits, based on the findings from both Hon'ble Karnataka High Court and Hon'ble Supreme court as submitted above the petitioner humbly submits restoration of conviction and sentence recorded by trial court were only applicable as explicitly mentioned for A2, A3 and A4, not for A1 as the appeal against her acquittal got abated by the Apex court's Judgment.
7) For the above foregoing reasons, the Petitioner therefore pray this Hon'ble court may be pleased to pass an order allowing the application under Sec.452 of Criminal procedure code read with section 13 (2) of The Criminal law(Amendment) Ordinance, 1944(38 of 1944) for the return of movable Articles under seizure as tabulated in Annexure-I and Annexure-II of the final report in above SPL CC.No.208 of 2004 before Hon'ble Special Court for the Trial of Prevention of Corruption Act Cases, Bangalore, Karnataka pertaining to Late Dr.J.Jayalalithaa, A - 1 and pass
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 such further or other orders and thus render justice.
Dated at Bengaluru on this the 13(th) day of January 2025.
10. Shri M.Sathya Kumar also filed written submissions and additional written submissions in addition to the oral arguments on behalf of Smt.J.Deepa, which reads as under:
WRITTEN SUBMISSIONS FILED ON BEHALF OF THE APPELLANT:
FACTS OF THE CASE:
It is respectfully submitted that the petitioner narrates the sequence of legal proceedings involving Former Chief Minister of Tamil Nadu Late Selvi J. Jayalalitha:
1. Trial Court Conviction:
On 27.09.2014, the Special Court for Prevention of Corruption Act Cases in Bangalore convicted Former Chief Minister of Tamil Nadu Late Selvi J. Jayalalitha under the Prevention of Corruption Act, 1988, and related IPC offenses. This judgment was based on charges of accumulating wealth disproportionate to her known sources of income.
2. High Court Acquittal:
Upon appeal by the accused, the Karnataka High Court overturned the trial court's judgment on
11.05.2015. This acquittal was based on specific grounds, including mathematical errors in
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 calculating the disproportionate assets ratio, which brought the figure below the statutory threshold for conviction.
3. Supreme Court Appeal:
Dissatisfied with the acquittal, the State of Karnataka, along with other appellants, challenged this verdict before the Hon'ble Supreme Court in Criminal Appeal Nos. 300-303 of 2017 and Criminal Appeal Nos. 314-319 of 2017.
4. Demise and Abatement:
During the pendency of these appeals, Former Chief Minister of Tamil Nadu Late Selvi J. Jayalalitha passed away on 05.12.2016. Consequently, the appeals against her stood abated in law. The Hon'ble Supreme Court, in its judgment dated 14.02.2017, expressly acknowledged this abatement, declaring that the proceedings against her had legally terminated.
5. It is humbly submitted that myself Smt. J. Deepa along with my brother Shri. J. Deepak became the legal heirs of Late Selvi. J Jayalalitha (A-1) after her demise on 05.12.2016 only by an order of the Hon'ble Madras High Court vide its order OP No 630 of 2018 dated 27.05.2020. The process of being declared the legal heir of Former Chief Minister of Tamil Nadu Late Selvi J.Jayalalitha was after such a long legal struggle.
6. It is further submitted that Former Chief Minister of Tamil Nadu Late Selvi J. Jayalalitha deceased on 05.12.2016 and during that time the appeal Criminal Appeal Nos. 300-303 of 2017 State of Karnataka vs. Selvi. J. Jayalalitha & ors was pending disposal by the Hon'ble Supreme Court of India.
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7. It is further submitted that the Respondent deceased during the pendency of the appeal and the charges got Abated as mentioned in the Page No. 562 & para 542 stated as "Accordingly, in view of the reasoning recorded hereinabove in the preceding paragraphs, we set aside the judgment and order of the High Court and affirm and restore the judgment of the Trial Court in Toto against A2 to A4. However, though in the process of scrutiny of the facts and the law involved and the inextricable nexus of Al with A2 to A4, reference to her role as well as the evidence pertaining to her had been made, she having expired meanwhile, the appeals, So far as those relate to her stand abated."
DOCTRINE OF ABATEMENT:
8. It is humbly submitted that the meaning of "abatement" can only be taken in criminal proceedings as "discontinuation of such proceedings owing to the death of the accused/convict pending such proceedings". In short, it would reveal that an appeal against conviction (except an appeal from a sentence of fine) would abate on the death of the appellant as in such a situation, the sentence under appeal could no longer be executed. The abatement is certainly different from acquittal and a mere glance at the proviso to Section 394(2) of the Criminal Procedure Code, will make this position very clear.
9. It is humbly submitted that according to Black's Law Dictionary 11th edition, "Abatement is the dismissal or discontinuance of a legal proceeding "for a reason unrelated to the merits of the claim". The negation of a criminal trial and verdict after a convicted defendant has died before exhausting all legal appeals. The case reverts to the beginning point as if the trial and conviction had never occurred. It is also termed doctrine of abatement ab initio.
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023
10. It is humbly submitted that the Doctrine of Abatement is as follows Abatement is the dismissal or discontinuance of a legal proceeding for a reason unrelated to the merits of the claim. It is available in both the civil context and the criminal context. Traditionally, the death of a criminal defendant following conviction, but before an appeal can be made, is a ground for abatement. The effect of abatement is to discontinue all proceedings ab initio-dismiss the appeal as moot, overturn the conviction, and dismiss the indictment. Essentially, the defendant is left as if he or she had never been charged. These effects of abatement have some significant legal consequences. Since the conviction no longer exists, it cannot be used in a civil suit related to the criminal activity.
11. It is humbly submitted that the word "Abatement" in P. Ramanatha Aiyar's The Law Lexicon 5 Edition is that "In Criminal Law:
Abatement of proceedings connotes their termination without any decision on the merits and without the assent of the prosecutor"
12. It is humbly submitted that the interpretation of the term Abatement as held in various foreign court judgements under common law jurisdiction and civil law jurisdiction are as under:
(a) The effect of abatement is to discontinue all proceedings ab initio dismiss the appeal as moot, overturn the conviction, and dismiss the indictment.
Essentially, the defendant is left as if he or she had never been charged. (United States v. Schuster, 778 F.2d 1132, 1133 (5th Circuit. 1985))
(b) The effects of abatement have some significant legal consequences. Since the conviction no longer exists, it cannot be used in a civil suit related to the
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 criminal activity. (United States v. Schumann, 861 F.2d 1234, 1237 (11th Cir. 1988))
(c) As the Defendant had died before the appeal was decided, the court declared, without citation to authority, that "the prosecution abate[d] in Toto"
because the proceeding was still pending. (United States v. Pauline, 625 F.2d 684, 684 (5th Cir. 1980);
13. It is further submitted that in the light of abatement of the appeals, it cannot be said that she was convicted and therefore, there is no stigma of conviction attached to her. Accordingly, the Defendant has an absolute right over the claim of the property.
14. It is humbly submitted that Section 401 Criminal Procedure Code, 1973 which speaks about the High Court's power of revision says that the "High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307...." Therefore, Section 394 Criminal Procedure Code, 1973 equally applies to revision against conviction and sentence also. Accordingly it is abated.
15. It is further submitted that it was held in State of A.P. v. S. Narasimha Kumar [(2006) 5 SCC 683], the question arose for consideration before the Hon'ble Supreme Court was as to whether an appeal from a composite order of sentence combining the substantive imprisonment with fine is for the purposes of Section 431 Criminal Procedure Code, (Old Code) corresponding to Section 394 Criminal Procedure Code, 1973, is not an appeal from the sentence of fine. It is relevant to extract Para 9 (Pg No. 20 of the Typed set of papers) of the said decision:
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 "9. Every other appeal under Chapter XXXI, except an appeal from a sentence of fine, finally abates on the death of the appellant. By "every other appeal"
is meant an appeal other than one against an order of acquittal, that is to say, an appeal against an order of conviction. Every appeal against conviction therefore abates on the death of the accused except an appeal from a sentence of fine. An appeal from a sentence of fine is excepted from the all- pervasive rule of abatement of criminal appeals for the reason that the fine constitutes a liability on the estate of the deceased and the legal representatives on whom the estate devolves are entitled to ward off that liability. By Section 70 of the Penal Code the fine can be levied at any time within six years after the passing of the sentence and if the offender has been sentenced for a longer period than six years, then at any time previous to the expiration of that period; "and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts". The fact that the offender has served the sentence in default of payment of fine is not a complete answer to the right of the Government to realize the fine because under the proviso to Section 386(1) (b) of the Code the court can, for special reasons to be recorded in writing issue a warrant for realizing the fine even if the offender has undergone the whole of the imprisonment in default of payment of fine. The sentence of fine remains outstanding though the right to recover the fine is circumscribed by a sort of a period of limitation prescribed by Section 70 Penal Code."
16. It is further submitted that it was held in the Landmark Supreme Court Judgement State of Andhra Pradesh v. S. Narasimha Kumar, (2006) 5 SCC 683 that "if there is an appeal against the sentence on the ground of its inadequacy under section 377, or if there is an appeal in case of an Acquittal of the accused under
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 section 378, the appeal finally abates on the death of the accused person."
17. It is humbly submitted that The Hon'ble Supreme Court in B.R. Kapur v. State of Tamil Nadu [(2001) 7 SCC 231] in para 40 (Page No. 87 of Typed set pf papers) observed as under:
"40. In much the same vein, it was submitted that the presumption of innocence continued until the final judgment affirming the conviction and sentence was passed and, therefore, no disqualification operated as of now against the second respondent. Before we advert to the four judgments relied upon in support of this submission, let us clear the air. When a lower court convicts an accused and sentences him, the presumption that the accused is innocent comes to an end. The conviction operates and the accused has to undergo the sentence. The execution of the sentence can be stayed by an appellate court and the accused released on bail. In many cases, the accused is released on bail so that the appeal is not rendered infructuous, at least in part, because the accused has already undergone imprisonment. If the appeal of the accused succeeds the conviction is wiped out as cleanly as if it had never existed and the sentence is set aside. A successful appeal means that the stigma of the offence is altogether erased. But that is not to say that the presumption of innocence continues after the conviction by the trial court. That conviction and the sentence it carries operate against the accused in all their rigour until set aside in appeal, and a disqualification that attaches to the conviction and sentence applies as well."
THERE IS NO STIGMA OF CONVICTION:
18. It is further submitted that in the light of the observations made in the above said paragraph, if
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 an accused succeeds in the appeal against conviction, the stigma of conviction is wiped.
19. It is humbly submitted that the Hon'ble Madras High Court in M.L Ravi vs. Chief Secretary Government of Tamil Nadu and ors (2019 SCC Online Mad 5687) in para 27 (Page No. 116 of Typed set of papers) it was held as follows:
In the case on hand, the former Chief Minister of Tamil Nadu, namely Selvi J. Jayalalitha was originally convicted by the Trial Court for the commission of offences under the Prevention of Corruption Act, 1988 and other related offences under the Indian Penal Code and on appeal filed by her and other accused before the High Court of Karnataka, the conviction and sentence passed against them were set aside and all of them were acquitted. Challenging the same, the State of Karnataka and others preferred criminal appeals before the Hon'ble Supreme Court and by the time before the orders could be pronounced, A-1 breathed her last and therefore, the appeal against her acquittal came to be dismissed as abated. It is to be remembered at this juncture that the said person had already had the benefit acquittal operating in her favour and in the light of the judgment in B.K. Kapur v. State of Tamil Nadu [(2001) 7 SCC 231], the stigma of conviction against her got erased/wiped out, which have not been set aside by the Hon'ble Apex Court on merits for the reason that before the orders could be pronounced, she died. Therefore, it cannot be said that Selvi J. Jayalalitha is a convicted person and as such, there is no stigma of conviction attached to her. Accordingly there is an absolute claim over the property by the Legal heirs.
20. It is humbly submitted that Section 18A dealing with Provisions of Criminal Law Amendment Ordinance, 1944 to apply to attachment under The
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 Prevention of Corruption Act, 1988 becomes inoperative because the proceedings got abated.
21. It is humbly submitted that Section 13 dealing with Provisions of Disposal of attached property upon termination of criminal proceedings as per Criminal Amendment Ordinance Act, 1944 becomes inoperative because the proceedings got abated.
22. It is humbly submitted that Section 452 dealing with order for disposal of property on conclusion of trial of Criminal Procedure code, 1973 becomes inoperative as this is a clear case of abatement.
23. It is humbly submitted that it was held in landmark Supreme Court judgement Gurmail Singh vs State of Uttar Pradesh 2022 10 SCC 854 in para 27 and 28 (Page No. 127 of Typed set of papers) it is held as follows:
27. "The term 'abatement' or 'abate' has not been defined in Criminal Procedure Code, 1973 In the said circumstances, its dictionary meaning has to be looked into. As relates criminal proceedings going by the meaning given in Black's Law Dictionary, 10th Edition, abatement means 'the discontinuation of criminal proceedings before they are concluded in the normal course of litigation, as when the defendant dies'. Thus, it can be seen that the meaning of abatement can only be taken in criminal proceedings as discontinuation of such proceedings owing to the death of the accused/convict pending such proceedings'. In short, it would reveal that an appeal against conviction (except an appeal from a sentence of fine) would abate on the death of the appellant as in such a situation, the sentence under appeal could no longer be executed.
28. The abatement is certainly different from acquittal and a mere glance at the proviso to Section 394 (2), Criminal Procedure Code, 1973 will
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 make this position very clear. The said proviso reads thus: "Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate."
28. It is further submitted that Hon'ble High Court of Karnataka in G. Varadaraju Vs. Union of India and Ors. Writ Petition No. 13145 of 2022 it was held in Para 4 (c) (Page No. 137 of the typed set of papers) as follows:
(c) Legal systems in most civilized jurisdictions operate with a premise that personality of an individual begins with birth and ends with death. In certain systems, personality may be assumed even for a 'child in the womb', is not much relevant. "If birth is necessary to create rights, so death in general ends rights.
29. It is further submitted that from the abovementioned judgements and definitions it is clear that Defendant got abated and it is entirely different from acquittal.
30. It is also submitted that since it is the clear case of abatement, myself who is one of the legal heirs of Former Chief Minister of Tamil Nadu Late Selvi J. Jayalalitha has a legal right over the claim of the properties as I am aware of the property details.
CONSTITUTIONAL SAFEGAURDS:
31. The Indian legal system is based on the common law system, and the rule of law is an essential aspect of the common law system. When the common law system fuses with limited
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 government and fundamental rights, it requires the judiciary not only to interpret the law but also to ensure that the government functions within the constitutional limits and the fundamental rights are not violated by any authority.
32. Substantive criminal law defines offences and prescribes punishments which can be administered only in accordance with a procedure prescribed provides the machinery and the procedure for detection of crime, apprehension of the suspect, collection of evidence, determination of guilt or innocence of the accused and offences and under procedural criminal law.
33. The provisions to ensure protection of civil liberties were provided in the Indian criminal procedural law (Code of Criminal Procedure 1898) even before the Constitution came into force, but by incorporating procedural safeguards under Articles 20, 21 and 22 of the Constitution, they have been raised to the status of fundamental rights. Fundamental rights restrict the exercise of plenary legislative power. If a fundamental right is conferred on any person, it is a limitation on the entire legislative power in respect of that right
34. Article 21 of the Constitution of India provides as follows:
21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.
35. Article 21 ensures that any deprivation of life or personal liberty is carried out according to "fair, just, and reasonable" procedures. By extension, posthumous rights concerning reputation and property must also adhere to due process, which includes adhering strictly to statutory provisions and established judicial doctrines like abatement.
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023
36. It is further submitted that Hon'ble Supreme Court in A.K. Gopalan v, State of Madras (AIR 1950 SC 27) held that the expression Procedure established by law' meant that there had to be a procedure laid down by a law made by the Parliament or State legislature justifying interference with the person's life or personal liberty which should be valid, and the procedure so laid down should be strictly followed.
37. It is further submitted that Hon'ble Supreme Court in Menaka Gandhi Vs Union of India (1978 1 SCC 248) it was observed as follows (Pg no. 307 of the typed set): "But the mere prescription of some kind of procedure cannot ever meet the mandate of Article 21. The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary."
38. Further in para 7 of the same Judgement it was observed as follows:
"The principle of reasonableness, which legally as well as philosophically is essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right, just and fair and not arbitrary, fanciful or oppressive, otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied."
39. It is submitted that there is no express provision in any statue covering the aspect of abatement in cases other that conviction and acquittal.
40. It is submitted that the Hon'ble Supreme Court of India in Kartar Singh v State of Punjab (1994 (3) SCC 569), again reiterated that the term
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 "procedure" under Article 21 means a procedure which is right, just and fair, and not arbitrary, fanciful or oppressive. The procedure should conform to the principles of natural justice which is "fair play in action".
41. It is further submitted that in this case there is no procedure established by law as there are no legal provisions which pertains to abatement in cases other than conviction and acquittal. Hence the Constitution of India provides a safeguard against the arbitrary and unwarranted actions in the absence of statute covering the situation in hand.
THE CONCEPT OF THE GOLDEN TRIANGLE:
42. The concept of the Golden Triangle in the Indian Constitution refers to the unique interrelationship between Articles 14, 19, and 21. These articles, like the three sides of a triangle, are interconnected and form the core of the fundamental rights guaranteed to every citizen of India. They are seen as a single integrated scheme, and one cannot exist without the other. The concept of the Golden Triangle is a testament to the holistic approach of the Indian Constitution towards ensuring the fundamental rights of its citizens.
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023
43. Articles 14, 19, and 21 are interrelated in a way that they mutually reinforce the principles of equality, freedom, and dignity. Article 14 ensures equality before the law and equal protection of laws, forming the basis for the enforcement of democratic values. Article 19 guarantees several freedoms, including the freedom of speech and expression, which is essential for the realization of the principles of equality enshrined in Article 14. Article 21, on the other hand, protects life and personal liberty, thereby providing the necessary conditions for the enjoyment of the rights guaranteed by Articles 14 and 19.
44. The interrelation of these articles is such that a law infringing upon any of these rights would have to meet the requirements of all three articles. For instance, a law restricting the freedom of speech and expression (Article 19) would not only have to be a reasonable restriction but would also have to satisfy the requirement of being just, fair, and reasonable (Article 21) and non-arbitrary (Article
14).
THE TRIPLE TEST FOR ANY LAW TO BE HELD AS CONSTITUTIONAL:
45. The triple test for any law to be held as constitutional under the Golden Triangle is that it must satisfy the requirements of Articles 14, 19, and 21. This means that the law must not be arbitrary and must provide equal protection (Article
14), it must not unduly infringe upon the fundamental freedoms (Article 19), and it must not deprive a person of their life or personal liberty except according to the procedure established by law, which must be fair, just, and reasonable (Article 21).
46. This triple test was first laid down in the landmark case of Maneka Gandhi Vs. Union of India (1978), where the Supreme Court held that any law
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 that seeks to deprive a person of their personal liberty must satisfy not only the test of Article 21 but also the tests of Articles 14 and 19. This ruling has since been upheld in numerous subsequent judgments, reinforcing the interrelation of these articles and their collective role in upholding the fundamental rights of citizens.
VIOLATION OF ARTICLE 19 OF THE CONSTITUTION OF INDIA:
47. Article 19 of the Constitution of India is as follows:
19. (1) All citizens shall have the right-
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arma;
(e) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(g) to practice any profession, or to carry on any occupation, trade or business, (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of 4 (the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.) (3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 far as it imposes, or prevent the State from making any law imposing, in the interests of 4 (the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of 4 (the sovereignty and integrity of India or] public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(5) Nothing in 1 (sub-clauses (d) and (e)) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
(6) Nothing in sub-clause (9) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, 2 (nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,
(i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 the exclusion, complete or partial, of citizens or otherwise).
48. It is further submitted that enforcing upon the auction of assets based on a situation which is not covered in any statute and on which the statute is also silent infringes Article 19 of the Constitution of India and consequently affects the Fundamental Right Conferred by the Constitution of India.
VIOLATION OF ARTICLE 14 OF THE CONSTITUTION OF INDIA:
49. Article 14 of the Constitution of India is as follows:
14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
50. The cornerstone of the Indian Constitution is the "Rule of Law", implying that no individual is above the law and that every action by the state must be backed by legal authority. The abatement of proceedings against the deceased aligns with the principle that actions cannot continue without statutory support. Any deviation violates the essence of Article 14, which guarantees equality and non-arbitrariness in the application of laws.
51. It is further submitted that enforcing upon the auction of properties for which the statute does not provide the authority, is in gross violation of Article 14 of the Constitution of India.
52. It is further submitted that there is no equal treatment for the Appellant as an action is being enforced for which statute does not provide the authority and there is no rule of law to enforce such act upon the Petitioner.
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NC: 2025:KHC:1142
CRL.A No. 1972 of 2023
C/W CRL.A No. 1973 of 2023
VIOLATION OF ARTICLE 300-A OF THE
CONSTITUTION OF INDIA:
53. Article 300 A of the Constitution of India is as follows:
300A. Persons not to be deprived of property save by authority of law - No person shall be deprived of his property save by authority of law
54. While not a fundamental right, Article 300A prohibits the state from depriving any person of their property except by the authority of law. Any attempt to auction properties after abatement without clear statutory backing violates this constitutional mandate.
BREACH OF CONSTITUTIONAL MORALITY:
55. It is further submitted instituting auction proceedings for the properties has resulted in the breach of constitutional morality.
56. No morality has been followed by the Respondent by initiating action against the properties for which the proceedings have been abated and where law does not provide the authority.
ATTACHING CRIMINALITY TO A DEAD PERSON CALLS FOR DEFEMATION:
57. It is further humbly submitted that as per section 499 of Indian penal Code "it may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives." Further to attach a criminality to a dead person itself is a ground for defamation as the proceedings got abated.
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023
58. I further submit that, I am aware of the fact that there is an Inventory Mahazer at the residence of Al Selvi J. Jayalalitha (now deceased) conducted on 11.12.1996 situated at No.36, Poes Garden, Chennai 600086 valued at several crores of rupees for which in the capacity of a legal heir I have the right to claim.
PRAYER WHEREFORE, the Appellant most respectfully prays that this Hon'ble Court be pleased to set aside the order and judgment passed by the Hon'ble 36th Addl.City Civil and Sessions Judge ADDITIONAL WRITTEN SUBMISSIONS FILED ON BEHALF OF THE APPELLANT:
FACTS OF THE RAMESAN CASE IS DIFFERENT FORM THAT OF THE PRESENT CASE:
1. It is humbly submitted that the facts of the case of Ramesan (Dead) Through Lr. Girija A vs The State Of Kerala in CRIMINAL APPEAL NO. 77 of 2020 is different from the case in hand as the former relates to appeal against conviction and the case in hand related to appeal against acquittal.
2. It is further submitted that the case in hand being the appeal against the acquittal, a judgment which is in complete contrast to the facts of the case in hand cannot become a precedent and based on which a conclusion can never be arrived.
3. It is of paramount importance to note that it has been specifically mentioned in the judgement of Ramesan (Dead) Through Lr. Girija A vs The State Of Kerala in CRIMINAL APPEAL NO. 77 of
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 2020 in para 19 of the judgement which is as follows:
19. We, thus, conclude that the appeal filed by accused Ramesan in the High Court was not to abate on death of the accused. The High Court rightly did not direct for abatement of appeal and proceeded to consider the appeal on merits. The appeal before the High Court being against sentence of fine was required to be heard against the sentence of fine despite death of accused- appellant.
PRINCIPLES OF NATURAL JUSTICE NOT FOLLOWED WHICH HAS LED TO VIOLATION OF ARTICLE 14
4. It is further submitted that Hon'ble Apex Court has observed in para 20 of Ramesan (Dead) Through Lr. Girija A vs The State Of Kerala in CRIMINAL APPEAL NO. 77 of 2020 which is as follows.
20. Although, we have upheld the view of the High Court that appeal filed by the accused was not to abate and was required to be heard and decided on merits but there is one aspect of hearing of the appeal before the High Court, which need to be noted. From the judgment of the High Court, it does not appear that after the death of the appellant-accused, his legal heirs were given opportunity to proceed with the appeal against the sentence of fine. The judgment of the High Court does not also mention that any counsel has appeared for the legal heirs.
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 The High Court ought to have given an opportunity to legal heirs of the accused to make their submissions against the sentence of fine, which fine could have been very well recovered from the assets of the accused in the hands of the legal heirs.
5. It is evident from the above paragraph that the appeal in the Hon'ble Kerala High Court was decided without giving due consideration to Article 14 of the Constitution of India and Principles of Natural Justice as no opportunity was provided to the deceased appellant's legal heirs.
6. It is further submitted that treating a judgement passed without considering the Principles of Natural Justice as a precedent for this case in hand does not hold good in law and breaches the constitutional morality.
THERE IS NO STIGMA OF CONVICTION:
7. It is further submitted that in the light of the observations made in the above said paragraph, if an accused succeeds in the appeal against conviction, the stigma of conviction is wiped.
8. It is humbly submitted that the Hon'ble Madras High Court in M.L Ravi vs. Chief Secretary Government of Tamil Nadu and ors (2019 SCC Online Mad 5687) in para 27 it was held as follows:
In the case on hand, the former Chief Minister of Tamil Nadu, namely Selvi J. Jayalalitha was originally convicted by the Trial Court for the commission of offences under the Prevention of
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 Corruption Act, 1988 and other related offences under the Indian Penal Code and on appeal filed by her and other accused before the High Court of Karnataka, the conviction and sentence passed against them were set aside and all of them were acquitted. Challenging the same, the State of Karnataka and others preferred criminal appeals before the Hon'ble Supreme Court and by the time before the orders could be pronounced, A-1 breathed her last and therefore, the appeal against her acquittal came to be dismissed as abated. It is to be remembered at this juncture that the said person had already had the benefit acquittal operating in her favour and in the light of the judgment in B.K. Kapur v. State of Tamil Nadu (2001) 7 SCC 231, the stigma of conviction against her got erased/wiped out, which have not been set aside by the Hon'ble Apex Court on merits for the reason that before the orders could be pronounced, she died. Therefore, it cannot be said that Selvi J. Jayalalitha is a convicted person and as such, there is no stigma of conviction attached to her. Accordingly there is an absolute claim over the property by the Legal heirs.
9. It is humbly submitted that Section 18A dealing with Provisions of Criminal Law Amendment Ordinance, 1944 to apply to attachment under The Prevention of Corruption Act, 1988 becomes inoperative because the proceedings got abated.
10. It is humbly submitted that Section 13 dealing with Provisions of Disposal of attached property upon termination of criminal proceedings as per Criminal Amendment Ordinance Act, 1944 becomes inoperative because the proceedings got abated.
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023
11. It is humbly submitted that Section 452 dealing with order for disposal of property on conclusion of trial of Criminal Procedure code, 1973 becomes inoperative as this is a clear case of abatement.
12. It is further submitted that holding Ramesan (Dead) Through Lr. Girija A vs The State Of Kerala in CRIMINAL APPEAL NO. 77 of 2020 as a precedent for the case in hand implies attachment of conviction on Former Chief Minister of Tamil Nadu Late Selvi J. Jayalalitha which is against the judgement of M.L Ravi vs. Chief Secretary Government of Tamil Nadu and ors (2019 SCC Online Mad 5687).
ATTACHING CRIMINALITY TO A DEAD PERSON CALLS FOR DEFEMATION:
13. It is further humbly submitted that as per section 499 of Indian penal Code "it may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives." Further to attach a criminality to a dead person itself is a ground for defamation as the proceedings got abated.
14. It is further submitted that holding Ramesan (Dead) Through Lr. Girija A vs The State Of Kerala in CRIMINAL APPEAL NO. 77 of 2020 as a precedent for the case in hand implies attachment of conviction and criminality on Former Chief Minister of Tamil Nadu Late Selvi J. Jayalalitha which calls for defemation under section 499 of the Indian penal Code, 1860.
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 REVIEW PETITION FILED IN THE HON'BLE APEX COURT IS DISMISSED:
15. It is humbly submitted that the Review Petition filed by State of Karnataka in REVIEW PETITION (CRL.) NOS. 176-185 OF 2017 in the Apex Court has been dismissed on 5th April, 2017 stating that there is no merit for review.
16. The dismissal of the Review Petition further reassures that this is a case of abatement and no position in any statute covers this position for which Ramesan (Dead) Through Lr. Girija A vs The State of Kerala in CRIMINAL APPEAL NO. 77 of 2020 cannot be applied as a precedent.
11. Apart from referring to the judgments in their written arguments, Shri M.Sathya Kumar, learned counsel also placed on record, the judgment of the Hon'ble Apex Court in the case of Ramesan (Dead) through legal representative Girija.A., Vs. the State of Kerala in Criminal Appeal No.77 of 2020; M.L.Ravi Vs. Chief Secretary, Government of Tamil Nadu and others (2019 SCC Online Madras 5687); Judgment copy of the Review Petition in Review Petition (Crl.)Nos.176-185 of 2017.
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023
12. Per contra, Shri Kiran S.Javali, learned Senior Counsel and Special Public Prosecutor and the learned Senior Counsel, Shri Sandesh J.Chouta representing the respondent in chorus opposed the appeal grounds by contending that the very application filed by the appellants before the Trial Court under Section 452 of Cr.P.C. was per-se not maintainable.
13. They further contended that what has ordered by the learned Trial Judge in Special Case No.208 of 2004 is the confiscation of the seized assets, which is no doubt having been set aside by the order of this Court in the aforesaid criminal appeal, which was again subject matter of the Special Leave Petition before the Supreme Court and then in Criminal Appeal Nos.300 to 303 of 2017 and in so far as the order of the confiscation is concerned, the Hon'ble Apex Court even after noting that the proceedings against the first accused came to be terminated on account of the death of the first accused during the pendency of the appeal, confiscation order passed by the
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 Trial Judge has been restored as referred to in paragraph Nos.541 and 542 of its order.
14. They further contended that when once the assets are seized under the seizure memo and placed before the Court for the purpose of adjudication of earning the assets as from the sources known to the prosecution and if the accused has failed to establish that there were other sources to acquire the assets other than the sources known to the prosecution, order of conviction has been recorded by the learned Trial Judge under Section 13(1)(e) of the Prevention of Corruption Act and the said order having become final in so far as accused Nos.2 to 4 is concerned and no order came to be passed by the Hon'ble Apex Court in respect of accused No.1, on account of her death, the question of segregation of assets would not arise at all. They further contend that if the applicants are able to establish that the assets were acquired or if the seized assets were acquired before the check period, it is for them to show which are those assets, which were
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 seized by the prosecution agency possessed by the accused No.1 before the check period. They pointed out that no such details are forthcoming in the application under Section 452 of Cr.P.C., resulting in the learned Trial Judge rejecting their application, which is just and proper.
Therefore, sought for dismissal of the appeals.
15. They also contend that the prosecution is required to place on record the assets possessed by the accused who is charged with the offence under Section 13(1)(e) of the Prevention of Corruption Act.
16. It is for the Court to decide whether the assets were acquired by the accused through the known sources to the prosecution and if the Court is convinced that the assets were not acquired through the sources known to the prosecution, consequence thereof resulting in recording an order of conviction for the offence under Section 13(1)(e) of the Prevention of Corruption Act. Trial Court after due enquiry has recorded such a finding, which has been done by the Trial Judge, which has been
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 ultimately merged into the order of the Hon'ble Apex Court in Criminal Appeal Nos.300 to 303 of 2017 especially with regard to the dealing of the assets seized by the prosecution is concerned. As such, this Court cannot sit as an appeal over the order of the Hon'ble Apex Court.
Therefore, the rejection of the application, which is impugned in the present appeal is just and proper.
17. Having heard the arguments of both sides, this Court perused the records meticulously especially impugned order and the order of the Hon'ble Apex Court in CRL.A.Nos.300-319/2017. To arrive at a finding as is found in paragraph No.542 of the order of the Hon'ble Apex Court, the Hon'ble Apex Court discussed the operation of law and the facts that would lead to passing of the final order. For ready reference, it is just and necessary for this Court to cull out paragraphs 531 to 536 and the order of the Hon'ble Apex Court in Crl.A.Nos.300- 319 of 2017.
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 "531. The Criminal Law Amendment Ordinance, 1944 (referred to as the "Ordinance" as well), which was enforced w.e.f. 23.8.1944 is an yield of the exercise of powers under Section 72 of the Government of India Act, 1935 and is directed to prevent the disposal or concealment of property procured by means of the offences enlisted in the Schedule thereto. To iterate, for the instant adjudication, paragraphs 4A and 5 of the Schedule are extracted hereinbelow for immediate reference:
4-A: an offence punishable under the Prevention of Corruption Act, 1988;
5: Any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in item 2,3 and 4 and 4-A. As the present appraisal does not involve the other offences enumerated in the Schedule, those are not being dwelt upon.
532. Clause 3 of the Ordinance provides that where the State Government or as the case may be, the Central Government has reason to believe that any person has committed, whether after the commencement of the Ordinance or not, any scheduled offence and whether or not any court has taken cognizance thereof, it may authorise the
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 making of an application to the District Judge within the local limits of whose jurisdiction, the said person ordinarily resides or carries on business, for attachment of any money or other property, believed to have been procured by means of such offence. It also permits that if such money or property cannot for any reason be attached, the prayer in the application may be extended to other property of the said person of the value as nearly as may be equivalent thereto. The provisions did make applicable Order XXVII of the First Schedule to the Code of Civil Procedure, 1908 to the proceedings for an order of attachment under the Ordinance as they did apply to the suits by the Government.
533. Section 4 contemplates ad interim attachment by the Jurisdictional District Judge, in the eventualities as mentioned therein and while doing so, he is required to issue to the person whose money or other property was being attached, a notice accompanied by copies of the order, the application and affidavits and of the evidence, if recorded, asking him to show cause on a date to be specified in the notice as to why the order of attachment should not be made absolute. Clause 5 empowers the District Judge to make the ad interim order of attachment absolute, if either no objection is filed by the person affected or not
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 varied after necessary enquiry on a consideration of the objection if filed, and the evidence is adduced. In terms of clause 10 of the Ordinance, an order of attachment of property made shall unless it is withdrawn, continue to be in force, in a contingency where a court has taken cognizance of the alleged schedule offence whether, before or after the time when the order was applied for, until orders are passed by the District Judge in accordance with the provisions of the Ordinance after the termination of the criminal proceedings. Clause 11 provides for appeals against the order(s) of the District Judge, in the before the jurisdictional High Court. matter of attachment Whereas clause 12 makes it incumbent on the court trying a scheduled offence, when apprised of an order of attachment of the property involved under the Ordinance, to record a finding, in case of conviction, as to the amount of money or value of other property procured by the accused by means of the offence, Clause 13 mandates the manner of disposal of such attached property upon termination of the criminal proceedings. Thereunder, when the final judgment or order of the criminal court is one of conviction, the District Judge shall order that from the property of the convicted person attached under the Ordinance or out of the security given in lieu of such
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 attachment, there shall be forfeited to Government such amount or value as is found in the final judgment or order of the criminal court, 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. Sub-clause 4 deals with a situation where the amounts ordered to be forfeited or recovered exceed the value of the property of the convicted person attached, thus permitting in that eventuality, the steps to follow. Sub-clause (6) ordains that every sim ordered to be forfeited in connection with any scheduled offence other than one specified in item 1 of the schedule, would after deduction of the cost of attachment as determined by the District Judge, be credited to the Government or the local authority to which the offence has caused loss or where there is more than one such government or local authority, to be distributed amongst them in the proportion to the loss sustained by each.
534. Noticeably "termination of criminal proceedings", as per clause 2(2), as relevant for our present purpose, would be where this Court would pass its final order in the present appeals.
535. In the appeals, filed by the State of Karnataka pertaining to the release of the
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 properties recorded in the name of the six companies involved, consequent upon the acquittal of the respondents, the parties are essentially at issue on the applicability or otherwise of Section 452 of the Code of Criminal Procedure, 1973 invoked by the Trial Court to order confiscation/forfeiture of the properties otherwise attached under the Ordinance. The other facets of the competing assertions being largely common and already addressed, are inessential for a fresh scrutiny.
Whereas it is urged on behalf of the State that having regard to the scheme of the Act and the mode of attachment of the property involved in a scheduled offence, the operation of Section 452 of the Code is not excluded, the plea on behalf of the respondents is that the Ordinance being a complete code by itself, the Trial Court was patently wrong in assuming to itself the power of disposal of the property under attachment by invoking the said provision of the Code. It has been urged in essence on behalf of the respondents that at the most, the Trial Court could have valued the property under attachment following its conclusion of guilt against them, leaving it thereafter to the forum under the Ordinance to comply with the procedure prescribed therein and further the process to its
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 logical end. This is more so, as has been urged for the respondents, that the appeals against the orders making the ad interim attachment absolute are pending before the High Court as permissible under the Ordinance. Principally, reliance, amongst others has been placed by the respondents on the decision of a Constitution Bench of this Court in State of West Bengal Vs. S.K. Ghosh, AIR 1963 SC 255.
536. In our comprehension, the course adopted by the Trial Court cannot be faulted with. To reiterate, in terms of Section 5(6) of the Act, it was authorised to exercise all powers and functions exercisable by a District Judge under the Ordinance. The offences at the trial were under Sections 13(1)(e), 13(2) of the Act, Sections 109 and 120B of the Indian Penal Code encompassed within paragraphs 4A and 5 of the Schedule to the Ordinance. These offences were unimpeachably within the contours of the Act and triable by a special Judge thereunder. Having regard to the frame and content of the Act and the limited modifications to the provisions of the Code of Criminal Procedure, in their applicability as occasioned thereby and the authorisation of the special Judge trying the offences thereunder to exercise all the powers and functions invocable by a District Judge under the Ordinance, we are of
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NC: 2025:KHC:1142
CRL.A No. 1972 of 2023
C/W CRL.A No. 1973 of 2023
the opinion that the order of
confiscation/forfeiture of the properties
standing in the name of six companies, as involved, made by the Trial Court is unexceptionable. In any view of the matter, with the peremptory termination of the criminal proceedings resultant on this pronouncement, the direction of the Trial Court towards confiscation/ forfeiture of the attached property, as mentioned therein, is hereby restored and would be construed to be an order by this court as well. The decisions cited on behalf of the respondents on this issue, are distinguishable on facts and are of no avail to them."
(Emphasis supplied)
18. On careful perusal of the same, it is noticed that there is a clear finding recorded by the Hon'ble Apex Court that order of the confiscation and consequential directions has to be adhered to by all concerned including legal representatives of the deceased accused No.1.
19. However, in the case of Rameshan vs. State of Kerala (referred to supra), which is also relied upon by one of the legal representatives namely, Ms.J.Deepa, the
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 legal representative of deceased accused can establish the right over the seized properties. For which purpose, they would be allowed to get implead themselves. In the case on hand, learned Trial Judge, in the impugned order, did not dismiss the application filed by the appellant on the question of locus; but the application is dismissed on merits. Therefore, the right to be exercised by the legal representatives of deceased accused No.1 has been recognized by the learned Trial Judge in the impugned order itself.
20. Now the question is, whether the application filed under Section 452 Cr.P.C., could have been entertained by the learned Trial Judge.
21. Admittedly, the prayer in the application is to lift or raise the attachment order. As could be seen from discussion made by the Hon'ble Apex Court, especially, Section 4 of the Ordinance (referred to supra), the attachment has ultimately ended in confiscation. There is a
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 vast difference between attachment pending trial. The order of attachment has merged itself into confiscation.
22. No doubt, confiscation can also be the subject matter of the appeal. Indeed, in the case on hand, all the accused persons did challenge the order of confiscation as well as consequential directions before this Court in Criminal Appeal Nos.835-839 of 2014 and 17-22 of 2015.
The Co-ordinate Bench of this Court has allowed all the appeals and set aside not only the order of conviction but also confiscation. The State challenged the same before the Hon'ble Apex Court by way of special leave petition, which was ultimately converted into Criminal Appeal Nos.300-319 of 2017.
23. Unfortunately, accused No.1 died after the arguments were addressed and before the judgment could be pronounced. The Hon'ble Apex Court in paragraph No.536 (referred to supra), took into consideration death of accused No.1, was cautious enough in observing that
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 there is a peremptory termination of criminal proceedings insofar as accused No.1 is concerned.
24. It is pertinent to note that despite considering death of accused No.1 in paragraph No.536 of the order passed by the Hon'ble Apex Court, the operative portion of the order of Hon'ble Apex Court in paragraph No.542, it has been specifically held that the Trial Court order is restored in full including consequential directions.
25. In this regard, appellants would try to impress upon this Court by contending that the direction is with regard to accused Nos.2 to 4 and not regarding accused No.1. The Hon'ble Apex Court, having noted the death of accused No.1 and having considered that order of confiscation/forfeiture of the properties standing in the name of six companies, as involved, made by the Trial Court is unexceptionable.
26. In other words, the said findings recorded by the Hon'ble Apex Court would cover assets seized from accused No.1 as such. Therefore, further interpretation of
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 the order of Hon'ble Apex Court by this Court in these appeals is thus clearly impermissible. A Review Petition was no doubt filed by the State. The said Review Petition came to be dismissed. Mere dismissal of the Review Petition filed by State would not be ipso facto make out a case for the appellants herein to contend that the assets of accused No.1 are to be excluded from confiscation proceedings.
27. At this juncture, Sri S.Satheesh Kumar, learned counsel representing Sri J.Deepak, further impressed upon the Court that the assets seized also include the assets, which were earned and possessed by accused No.1 prior to check period as well. To appreciate said argument, this Court perused affidavit filed by appellants before Trial Court. On such perusal, it is noticed that there are no details forthcoming in the application filed by the appellants before the Trial Court under Section 452 of Cr.P.C., about the assets possessed by accused No.1 nor Sri Satheesh Kumar or for that matter Sri Sathya Kumar,
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 learned counsel, who represents another legal representatives of accused No.1 namely, Ms.J.Deepa, are in a position to place on record, which are the assets that were seized by the prosecuting agency, which were said to have been acquired by accused No.1 before the check period.
28. The explanation that is sought to be offered by the learned counsel for the appellants in this regard is that they were declared as legal representatives of deceased accused No.1 that too after a long drawn battle; As such, they are unable to plead before the Court, the necessary details as to which are the assets which were seized by investigating agency which were acquired by accused No.1 before check period. They further contended that it was the duty of the prosecution to segregate assets, which were assets seized by the prosecution before and after check period.
29. Sri Javali and Sri Chouta, learned Senior Counsel representing respondent have responded to said
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 submission by stating that it is the duty of the investigating agency to place it before the Court the seized assets which were in possession of accused No.1 and it is for the accused No.1 to say that which are the assets among the seized assets are earned through the sources known to the prosecution or all the assets possessed by the accused not only known to the prosecution but also the accused has got necessary proof for acquiring the seized assets in a process known to law.
30. It is their further submission that accused No.1 has failed in such an exercise in establishing before the Court that the seized assets were acquired through a process known to law or sources known to the prosecution. As such, conviction order came to be passed which persuaded the Hon'ble Apex Court in observing that the confiscation/forfeiture of the properties standing in the name of six companies is unexceptionable.
31. On consideration of rival contentions of the parties, this Court is of the considered opinion that in the absence of any proper pleadings and proof, this Court cannot
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 pass any orders stating that the assets said to have been seized which were forming part of the pre-check period could be excluded from the confiscation proceedings.
32. It is always open for the appellants herein to place such pleadings and proof to establish that the seized assets did contain assets earned by accused No.1 in pre-
check period. If any such pleadings and proof is placed on record, the Trial Court is bound to consider the same, in accordance with law.
33. In continuation to said submission before the appellants contend that if the appeals are dismissed without giving any protection for the appellants to have their claim satisfied before the Trial Court with regard to the assets which were said to have been seized by the prosecuting agency before the check period, the rights of the appellants would be put to jeopardy.
34. To meet such an apprehension, it is just and convenient for this Court to observe that in the event of
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 prosecuting agency further proceeding with confiscation proceedings in auctioning the properties, which may contain the assets which were possessed and seized by the prosecuting agency prior to check period, if established by the appellants by process known to law, appellants would be entitled to the value thereof.
35. In view of the foregoing discussion, this Court is of the considered opinion that the decisions relied upon by the learned advocates for appellants need not be gone into in detail even though there cannot any dispute as to principles of law enunciated therein. This Court has categorically considered the effect of acquittal of accused No.1 so as to consider the case of the appellant in raising the attachment.
36. Since the Hon'ble Apex Court has taken into consideration that on merits the acquittal Order of accused No.1 could not be considered on account of death of accused No.1 after hearing is concluded and before the judgment could be passed and held that confiscation proceedings needs no interference, therefore, principles of law enunciated in the decisions relied upon by the appellant needs no further
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NC: 2025:KHC:1142 CRL.A No. 1972 of 2023 C/W CRL.A No. 1973 of 2023 consideration and accordingly, they are not discussed in detail.
37. With the above said observations, in view of foregoing discussion, this Court is of the considered opinion that since the application is seeking for raising/lifting the attachment is not at all maintainable as the attachment has already ended in confiscation proceedings in terms of the ordinance (referred to supra).
38. Consequently, the following:
ORDER Appeals sans merit.
Accordingly, they are dismissed.
Sd/-
(V SRISHANANDA) JUDGE DH,AV List No.: 1 Sl No.: 32