Jharkhand High Court
Dr. Chandra Bhushan Dubey vs State Through C.B.I on 1 July, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Deepak Roshan
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B) No. 216 of 2003
1. Dr. Chandra Bhushan Dubey
2. Smt. Hirajari Devi
3. Sri Sheo Prakash Du
4. Sri Sanjai Kumar Dubey
5. Sri Ved Prakash Dubey
6. Sri Saurabh Prakash Dubey
7. Rakesh Kumar
8. Sri Krishna Prakash Dubey
9. Smt. Dewanti Devi
10. Rita Pandey
11. Seema Kumari
12. Smt. Rajani Dubey ... Appellants
Versus
State through C.B.I, S.P.E, Ranchi ....Respondent
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CORAM: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellants : Mr. Shailesh Kumar Singh, Advocate
For the Respondents : Mr. Anil Kumar, ASGI
Reserved on: 20/06/2024 Pronounced on:01/07/2025
Per Deepak Roshan, J.
This appeal is directed against the order dated 3rd December
2002, passed by the Judicial Commissioner Ranchi in Petition No. 210 of 1996
arising out of RC 35(A)/ 96- Pat titled State of Bihar through CBI versus
Chandra Bhushan Dubey and others; whereby the Ld. Trial Court had made
the interim attachment as absolute vide the impugned order by holding as
under:
“19. From the record it transpires that the CBI has after investigation found
that Schedule-II property had been acquired out of the money of the Animal
Husbandry Department unlawfully misappropriated by the Opposite Party
No.1 Dr. Chandra Bhjushan Dubey acting as Piggery Development Officer,
and Animal Husbandry Department, Ranchi and since at that Dr. Chandra
Bhushan Dubey was a public servant, the Annexure-Il properties should be
finally attached under the provisions of Sections 4 and 5 of the Ordinance
1944.”
2. This case has a checkered history. On 11.03.1996, the Patna High
Court passed order in various writ applications for taking over investigation of
all fodder scam matters by CBI. On 19.03.1996, the Hon’ble Supreme Court
passed order of transferring investigation of Doranda P.S. Case No. 41/1996 to
CBI.
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Subsequently, R.C. Case No. 35(A)/96 was registered by the CBI
u/s 120B, 409, 420, 467, 468, 471, 474 & 471 IPC and Sec.13(2) r/w 13(1)(c)
and (d) of P.C. Act, 1988 wherein Dr. Chandra Bhushan Dubey (Now
deceased), the then Piggery Development Officer and others were made
accused.
On 30.11.1996, a petition was filed by the CBI vide no. 210/1996
for interim attachment of properties belonging to Dr Chandra Bhushan Dubey
(Now deceased) and the appellants herein u/s 3 of Criminal Law (Amendment)
Ordinances 1944. On 06.12.1996, the Ld. Trial Court passed order of interim
attachment. On 03.12.2002, the Court of Judicial Commissioner of Ranchi by
order dated 03.12.2002 made the interim order absolute in accordance with
Section 5 of Criminal Law (Amendment) Ordinance, 1944 till adjudication of
R.C. No. 35(A)/96-PAT.
In the month of February 2003, Cr. Appl. No. 216/2003 was
preferred by late Dr. Chandra Bhushan Dubey and the other appellants u/s 11 of
the Criminal Law (Amendment) Ordinances 1944.
3. On 26.07.2006, Dr. Chandra Bhushan Dubey died. On
02.06.2007 the appeal preferred by the appellants was dismissed by this Court.
The Hon’ble Apex Court set aside the order passed by the Jharkhand High
Court dated 02.06.2007 and remanded the matter to decide afresh.
On 08.09.2008, the present criminal appeal was again dismissed
for non-prosecution by this Court. The court also recorded that Dr Chandra
Bhushan Dubey has died on 26-07-2006 upon the statement of the counsel for
C.B.I.
The Hon’ble Apex Court again remitted the matter for
consideration on merit vide its order dated 3rd January 2014 passed in Cr.
Appeal No. 11-12 of 2014 (arising out of S.L.P. (Crl.) No. 3160-3161 of 2012.
4. In the meantime, on 31.01.2012, the Ld. Trial Court in R.C. Case
No. 35(A)/1996 has concluded the trial and passed the final judgment;
however, the case against this Appellant No.1 stood abated, inasmuch as, the
accused Dr. Chandra Bhushan Dubey died during the pendency of the trial.
5. The grievance of the present appellants is that when the entire
attachment is based on presumption that the property so attached by the CBI
were acquired by ill-gotten money of late Dr. Chandra Bhushan Dubey, for
which the predicate case was filed being RC case no. 35(A)/ 96- PAT, but
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during trial itself, Dr. Chandra Bhushan Dubey died on 26-07-2006, and thus,
as per the law, the name of Dr. Chandra Bhushan Dubey was deleted from the
trial of RC case no. 35(A)/ 96 and therefore, upon termination of trial, the
property so attached by the CBI in the name of late Dr. Chandra Bhushan
Dubey should be released. However, still the legal heirs are facing difficulty
and as such the impugned order should be quashed on the ground that since the
property which was attached on the presumption that it was acquired by ill-
gotten money of late Dr. Chandra Bhushan Dubey, and since no finding could
be given during trial because of his death, the attached property should be
released.
6. Mr. Shailesh Kumar Singh, learned counsel for the appellants
submits that in the case of U Subhadrama & Ors. Vs. State of AP & Anr.1, it
has been held that “it is too well settled that a prosecution cannot continue
against a dead person. A fortiori a criminal court cannot continue proceeding
against a dead person and find him guilty. Such proceeding and the findings
are contrary to the very foundation of criminal jurisprudence. In such a case,
the accused does not exist and cannot be convicted.”
Relying upon the aforesaid judgment, Ld. Counsel for the
appellants summits that when there is no conviction, then the law requires that
the order of attachment under Criminal Law (Amendment) Ordinance, 1944
should be withdrawn, inasmuch as, when upon acquittal; attachment before
judgment should be released after acquittal; and in the instant case, obviously
no conviction could be made then it should be presumed that the attachment
made under the aforesaid ordinance is bad in law and the property in question
should be released in favor of the legal heirs of Late Chandra Bhushan Dubey
who are the present appellants herein.
7. Mr. Anil Kumar, ASGI representing the CBI opposes the prayer
of the appellants and submits that the entire property was acquired by late Dr.
Chandra Bhushan Dubey by ill-gotten money in the fodder scam and for which
a predicate case was registered being RC case no. 35(A)/ 96.
However, he could not dispute the fact that the entire attachment
is based on presumption that the property so attached by the CBI were acquired
by ill-gotten money of late Dr. Chandra Bhushan Dubey, for which the
predicate case was filed being RC case no. 35(A)/ 96- PAT, but during the trial
1 AIR 2016 Supreme Court 3095
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itself, Dr. Chandra Bhushan Dubey died on 26-07-2006. He has not disputed
that none of the appellants are accused in any trial relating to Animal
Husbandry matters.
8. To decide the issue as to whether the attached property should be
released in favour of the appellants, in view of the fact that the attachment was
done before trial and during trial proceeding, Dr. Chand Bhushan Dubey died
and no conviction could be done against him; it is profitable to go through the
several provisions with regard to attachment of the properties as stipulated in
Criminal Law (Amendment) Ordinances 1944, which governs the procedure of
attachments.
Section 4 deals with ad-interim attachment, Section 7 deals with
execution of orders of attachment, Section 8 deals with security in lieu of
attachment, Section 9 deals with Administration of attached property.
Section 12 deals with direction to the Courts to evaluate property
procured by scheduled offence and Section 13 deals with disposal of attached
property upon termination of criminal proceedings. For brevity, the same is
extracted hereinbelow: –
4. Ad interim attachment.–(1) Upon receipt of an application under section 3, the
District Judge shall, unless for reasons to be recorded in writing he is of the opinion
that there exist no prima facie grounds for believe that the person in respect of whom
the application is made has committed any scheduled offence or that he has procured
thereby any money or other property, pass without delay an ad interim order
attaching the money or other property alleged to have been so procured, or if it
transpires that such money or other property is not available for attachment, such
other property of the said person of equivalent value as the District Judge may think
fit: Provided that the District Judge may if he thinks fit before passing such order,
and shall before refusing to pass such order, examine the person or persons making
the affidavit accompanying the application.
(2) At the same time as he passes an order under sub-section (1), the District Judge
shall issue to the person whose money or other property is being attached, a notice,
accompanied by copies of the order, the application and affidavits and of the
evidence, if any, recorded, calling upon him to show cause on a date to be specified
in the notice why the order of attachment should not be made absolute.
(3) The District Judge shall also issue, accompanied by copies of the documents
accompanying the notice under sub-section (2), to all persons represented to him as
having or being likely to claim, any interest or title in the property of the person to
whom notice is issued under the said sub-section calling upon each such person to
appear on the same date as specified in the notice under the said sub-section and
make objection if he so desires to the attachment of the property or any portion
thereof on the ground that he has an interest in such property or portion thereof.
(4) Any person claiming an interest in the attached property or any portion thereof
may, notwithstanding that no notice has been served upon him under this section,
make an objection as aforesaid to the District Judge at any time before an order is
passed under sub-section (1) or sub-section (3), as the case may be, of section 5.
7. Execution of orders of attachment.–An order of attachment of property under
this Ordinance shall be carried into effect so far as may be practicable in the manner
provided in the Code of Civil Procedure, 1908 (5 of 1908) for the attachment of
property in execution of a decree.
8. Security in lieu of attachment.–Any person whose property has been or is about
to be attached under this Ordinance may, at any time apply to the District Judge to
be permitted to give security in lieu of such attachment and where the security offered
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and given is in the opinion of the District Judge satisfactory and sufficient, he may
withdraw or, as the case may be, refrain from passing, the order of attachment.
9. Administration of attached property.–(1) The District Judge may, on the
application of any person interested in any property attached under this Ordinance
and after giving the agent of the [State Government or, as the case may be, the
Central Government] an opportunity of being heard, make such orders as the District
Judge considers just and reasonable for–
(a) providing from such of the attached property as the applicant claims an interest
in such sums as may be reasonably necessary for the maintenance of the applicant
and of his family, and for the expenses connected with the defence of the applicant
where criminal proceedings have been instituted against him in any Court for a
scheduled offence;
(b) safeguarding so far as may be practicable the interests of any business affected by
the attachment, and in particular, the interests of any partners in such business.
(2) Where it appear to the District Judge to be just and convenient, he may by order
appoint a receiver to manage any property attached under this Ordinance in
accordance with such instructions as the District Judge may, from time to time, think
fit to give, and where a receiver is so appointed, the provisions of rules 2, 3, 4 and 5
of Order XL of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908),
shall be applicable.
12. Criminal Courts to evaluate property procured by scheduled offences. –(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.
(2) In any appeal or revisional proceedings against such conviction, the appellate or
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 passed in a
trial such as is referred to in sub-section (1), the appellate or revisional Court, if it
convicts the accused, shall record a finding such as is referred to in that sub-section.
(4) Where the accused is convicted of a scheduled offence other than one specified in
Item I of the Schedule to this Ordinance and where it appears that the offence has
caused loss to more than one Government referred to in the said Schedule or local
authority, the finding referred to in this section shall indicate the amount of loss
sustained by each such Government or local authority.
(5) Where the accused is convicted at the same trial of one or more offences specified
in Item I of the Schedule to this Ordinance and of one or more offences specified in
any of the other items of the said Schedule, the finding referred to in this section shall
indicate separately the amounts procured by means of the two classes of offences.
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 [State Government or, as
the case may be, the Central 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 Court 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 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 Government 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 convicted person by means of the offence,
together with the costs 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.
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(4) Where the amounts ordered to be forfeited or recovered under sub-section (3)
exceed the value of the property of the convicted 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 costs of attachment of the transferees
property is determined by the District Judge shall be forfeited to Government 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 not
recovered under that sub-section shall be recovered from the attached property of the
transferee or out of security given in lieu of such attachment.
(5) If any property remains under attachment in respect of any scheduled offence of
any security given in lieu of such attachment remains with the District Judge after his
orders under sub-sections (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.
(6) Every sum ordered to be forfeited under this section in connection with any
scheduled offence other than one specified in item I of the Schedule to this Ordinance
shall, after deduction of the costs of attachment as determined by the District Judge,
be credited to the Government being a Government referred to in the said Schedule
or local authority to which the offence has caused loss, or where there is more than
one such Government or local authority, the sum shall, after such deduction as
aforesaid, be distributed among them in preparation to the loss sustained by each.
Emphasis Supplied
9. Thus, we see that under Section 7, an order of attachment of
property shall be carried out in effect so far as may be practicable in the manner
provided in the Code of Civil Procedure 1908 for the attachment of property in
execution of a decree. At this stage itself, it is pertinent to mention here that for
the ad interim attached property, the court has to be satisfied that there exists a
prima-facie ground to believe that the person whose property is proposed to be
attached has committed any scheduled offence and that he has procured thereby
any money or other properties.
10. The conjoint reading of the aforesaid provisions can also be
understood by way of an example. If an “Accused” is alleged to have
defalcated and acquired property by ill-gotten money and finally he is
convicted for making loss to the Government to the tune of Rs.1 Crore and the
property so attached by way of ad-interim attachment is only to the tune of 50
Lakh; then the rest amount is to be realized from the said convict.
Similarly, if an “Accused” is alleged to have defalcated and
acquired property by ill-gotten money and finally he is convicted for making
loss to the Government to the tune of Rs.50 Lakh and the property so attached
by way of ad-interim attachment is to the tune of 1 crore; then the rest amount
is to be released to the said convict.
Likewise, if an “Accused” is alleged to have defalcated and
acquired property by ill-gotten money and finally he is acquitted or could not
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be convicted, as in the instant case, the property so attached shall be released by
the prosecution.
It may also be noted that there has to be a determination by the
Trial Court in predicate case fixing financial liability against any accused
whose properties is to be attached and/or attachment is made to be absolute
under the provisions of the Ordinance 1944. It must be borne in mind that in
terms of section 12 of the Ordinance, it is the duty of the prosecution to
represent and the Court concerned to assess the final liability at the time of
conviction irrespective of whether the accused raises a plea or not.
Needless to say, that in case of death of any accused during trial,
the determination cannot be done as the prosecution stands abated against the
said accused who is not surviving to defend his case.
11. In the instant Case, when the ad-interim attachment order was
passed; at that time the accused Dr. Chandra Bhushan Dubey was very much
alive and it was the case of CBI that they are having presumption that the
properties were acquired by ill-gotten money of late Dr. Chandra Bhushan
Dubey, which is ample clear from the impugned order also; relevant part of
which is quoted hereinabove at Para-1. However, Dr. Chandra Bhushan Dubey
died during pendency of Trial of RC case no. 35(A)/ 96 and no finding could be
given by the Ld. Trial Court against the dead man regarding his complicity in
the alleged commission of the crime.
As a matter of fact, his name was also deleted from the trial of
RC case no. 35(A)/ 96; there seems to be no reasons as to how the property so
attached on the ground that the properties were acquired by ill-gotten money of
late Dr. Chandra Bhushan Dubey survives.
12. This court is of the considered view that the order of attachment
should be withdrawn, inasmuch as, there is no basis of such attachment. In
other words, if the law requires that the order of attachment should be
withdrawn upon acquittal, it stands to reason that such orders must be
withdrawn when the prosecution abates or cannot result in a conviction due to
the death of the accused whose property is attached because concept of
abatement of a trial could be subsumed in the clause where the final judgment
and order of criminal court is one of acquittal.
13. At this stage itself one cannot forget the basic principle of
criminal jurisprudence that an accused has to be presumed innocent till he is
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convicted. In other words, the presumption of innocence of an accused
continues till he is convicted. It must be borne in mind and there is no reason to
consider that this presumption to have vaporized upon the death of an accused.
The Hon’ble Apex Court in catena of Judgments has held that the
presumption of innocence of an accused continues till he is convicted, and
consequently, after termination of trial, the property so attached in the name of
accused has to be released proportionately.
At the cost of repetition, there seems no reason or justification for
continuing the attachment, inasmuch as, there was no occasion to convict late
Dr. Chand Bhushan Dubey and it would amount to acquittal. It may also be
noted that there is no determination by the Trial Court in RC case no. 35(A)/ 96
fixing any financial liability against Dr. Chandrabhushan Dubey attracting the
provisions of Ordinance 1944 and thereby justifying the attachment.
Attachment ultimately upon conviction leads to forfeiture and since there is no
conviction and there cannot be any forfeiture in terms of section 13 of the
Criminal Law (Amendment) Ordinance, 1944 the entire exercise of continuing
with the attachment will be an exercise in futility and hence must be nipped at
this stage.
On the contrary, no such determination can be carried out against
Late Dr. Chandrabhushan Dubey as the Trial abated against him. As aforesaid,
the presumption of innocence of an accused till he is convicted must be born in
mind and there is no reason to consider this presumption to have vaporized
upon the death of an accused. Reference in this regard may be made to the
Judgment rendered by the Hon’ble Apex Court in the case of U Subhadrama &
Ors. Vs. State of AP & Anr, (Supra) wherein the Hon’ble Apex Court has held
as under:-
“6. As far as making the application for attachment, we find that the law authorises
the State Government to make such an application even though proceedings against
the person may not yet have resulted in a conviction. This is by virtue of clause 3
which empowers the Government to authorise making of such an application to the
District Judge where it has reason to believe that any person has committed any
scheduled offence. But however clause 3 requires the Government to make such an
application to the District Judge within the local limits of whose jurisdiction the said
person ordinarily resides or carries on business; thus clearly requiring the existence
of such a person. It excludes the possibility of proceedings against a dead person.
Clause 4 of the act empowers the District Judge to pass an order of ad interim
attachment on prima facie grounds for believing that the person in respect of whom
the application is made has committed any scheduled offence or has procured any
money or property thereby. Sub- clause 2 requires the District Judge to issue a
notice, presumably at the address where the person ordinarily resides or carries on
business (vide clause 3) along with copies of the order and the application etc.
Clause 5 provides for an investigation of objections to the attachment who have been
served with notices under clause 4. Sub-clause 3 empowers the District Judge to pass
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releasing a portion of the property or withdrawing the order. Clause 13 requires the
Government to inform the District Judge about the status of the criminal
proceedings. It requires the Government to furnish the District Judge with a copy of
the judgment or order of the trial court and with copies of the judgment or orders, if
any of the appellate or revisional court thereon. Sub-clause 2 mandates that the
District Judge shall forthwith withdraw any orders of attachment of property made in
connection with the offence if (a) cognizance of alleged scheduled offence has not
been taken or (b) where the final judgment and orders of the criminal court is one of
acquittal. While, this clause is clear that the orders of attachment must be withdrawn
if cognizance of the offence has not been taken or there has been an acquittal; the
clause is silent as to the effect of abatement of prosecution. It is due to this silence
that it is contended by the State Government in this case that the orders of attachment
could not only have been continued but could also have been confirmed. It is not
possible for us to accept the submission. If the law requires that the orders of
attachment should be withdrawn upon acquittal it stands to reason that such orders
must be withdrawn when the prosecution abates or cannot result in a conviction due
to the death of the accused, whose property is attached. Concept of abatement of a
trial could be subsumed in the clause where the final judgment and order of the
Criminal Court is one of acquittal. In this context, the presumption of innocence of an
accused till he is convicted must be borne in mind and there is no reason to consider
this presumption to have vaporized upon the death of an accused. It may be noted
that this Court has time and again reiterated the presumption of innocence of an
accused till he is convicted.”
14. Having regard to the aforesaid discussions and the law laid down
in the above referred case, the instant appeal is allowed. The impugned order
dated 3rd December 2002, passed by the Judicial Commissioner Ranchi in
Petition No. 210 of 1996 arising out of RC 35(A)/ 96- Pat titled State of Bihar
through CBI versus Chandra Bhushan Dubey and others is quashed and set
aside. The Respondents are hereby directed to release the attached property in
favour of the Appellant No.2 to 12, if the same is not lawfully attached in any
other criminal case or proceedings.
15. Accordingly, this criminal appeal is hereby allowed. Pending
I.As, if any, is also closed. Let the Lower Court Records be sent to the
concerned Court.
(Rongon Mukhopadhyay, J.)
(Deepak Roshan, J.)
fahim/-
AFR
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