N. Naveen Kumar and Ors. v. State of A.P.

A _r_ ## [2008] 14 S.C.R. 728 ## N. NAVEEN KUMAR AND ORS. ~- _v._ STATE OF A.P. (Criminal Appeal No. 1627 of 2008) B OCTOBER 17, 2008 [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] _Prevention of Corruption Act, 1947; Ss.5(1)(e) and 5(2):_ _Pecuniary resource disproportionate to known source of_ c _income_ - Possession _of, by accused government servant_ - _Sentencing the accused to undergo simple imprisonment for 1 year; trial Court directed to sell by auction item_ Nos. _1 to 4 of assets and sale proceeds therefrom to be confiscated to State_ - _During pendency of the appeal before High Court, convict_ D _died_ - _Filing of application by children of the deceased for grant of permission to deposit the appropriate amount in lieu of auction of certain items of assets_ - _Dismissed by High Court holding that_ s. _482 Cr.PC. not empowered the Court to review its own order- Correctness of- Held: Correct_ - _However; It_ is E _open to appellants to participate in the auction_ sale _of the assets in question_ - _Code of Criminal Procedure, 1973_ - _s.482._ c E +- .... _Code of Criminal Procedure, 1273_ - _S.482_ - _Inherent power of High Court- Invoking of, to review its own judgment._ F Accused, a government servant was allegedly possessing the pecuniary resources disproportionate to the known source of income. He was charged for committing the offence under Section 5 (1)(e) read with Section 5 (2) of the Prevention of Corruption Act, 1947. Trial Court G[found ][him ][guilty ][of ][committing ][the offence and sentenced ] him to undergo simple imprisonment for one year, to pay a fine of Rs.20,0001- and directed that item No 1 to 4 of the assets shall be sold in public auction and the sale proceeds s.hall be confiscated to the State. The accused pre728 H '¥ N. NAVEEN KUMAR AND ORS. _v._ STATE OF A.P. 729 ·' ~ ;. 'f ""'Y" _--i_ ferred criminal appeal. During pendency of the appeal A before the High Court, the appellant died. Appeal was dismissed by ~he High Court. Appellants, children of the deceased, filed an application praying for grant of permission to deposit the amount as considered appropriate in lieu of the confiscation of Item Nos. 1 to 4 of the assets, B which were directed to be sold in public auction. The High Court dismissed the application holding that Section 482 Cr.P.C. did not empower the Court to review its own judgment by exercising inherent powers. Hence the present appeal. c Dismissing the appeal, the Court HELD: 1.1 The High Court has rightly noted that it is the present value of the properties which is of relevance and not the value of the assets at the relevant point of D time of seizure. [Para - 7] [732-A] 1.2 It is open to the appellants to participate in the auction for sale of the properties in question as and when held. [Para - 7] [732-8] ,_ CRIMINALAPPELLATE JURISDICTION: Criminal Appeal[E ] No. 1627 of 2008 From the Judgment and Order dated 27.4.2006 of the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Misc. Petition No. 24 7 of 2006 in Crl. Appeal No. 1524 of 1998 F _,,__I_ Sarvesh Bisaria and Anil Nag for the Appellant. Altaf Fathima and D. Bharathi Reddy for the Respondents. The Judgment of the Court was delivered by G DR. ARIJIT PASAYAT, J 1. Leave granted. =1' _l.J \:_ ..-· -:i. 2. Challenge in this appeal is to the order passed by a learned Single Judge of the Andhra Pradesh High Court dismissing the application filed by the appellants. H 730 SUPREME COURT REPORTS [2008] 14 S.C.R. j ## 3. Background facts in a nutshell are as follows; A The appellants are the sons and daughters of the accused N. Ramakrishnaiah in C.C. No.64of1992 on the file of the Principal Special Judge, for SPE & ACB Cases, Hyderabad. He was charged for the offence under Section 5 (1 )(e) read with Section 5 (2) of the Prevention of Corruption Act, 194 7 (in short the 'Old Act') possessing the pecuniary resources disproportionate to the known sources of income. The accused worked as Executive Engineer as on the date of search of his house and other properties. Evidence was adduced and the Special Judge found the accused guilty, convicted him for the above mentioned offence and sentenced him to undergo simple imprisonment for one year and to pay a fine _of_ Rs.20,000/- in default to suffer simple imprisonment for three months. The Special Judge also directed that item No 1 to 4 of the assets shall be sold in public auction and the sale proceeds shall be confiscated to the State. The accused, being aggrieved by the conviction and the sentence imposed by the Special Judge preferred Criminal Appeal No.1524 of 1998. The High Court dismissed the appeal. As noted above, during the pendency of the appeal before the High Court, the appellant died, therefore, the sentence of imprisonment stood abated against the appellant. B c D E Prayer before the High Court _wo.:s_ that the appellants may be permitted to deposit entire amount of Rs.6,37,850.92 on such sum as r:nay be considered appropriate in lieu of the confiscaF tion of Item Nos.1 to 4 of the assets possessed by the accused in the case. It was pointed out that Item No.1 was a house property. The appellants had sentimental attachment to the properties. Stand of the State was that since Criminal Appeal was dismissed there was no scope for passing the order as the Court G had become functus officio. The appellants' stand was that Section 482 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') permitted the course to be adopted. The High Court did not find any substance in the plea and it was held that Section 482 Cr.P.C. did not empower the Court to review its own H[judgment by exercising inherent powers. ] ·~ -~ I ~-.., _t-_ > _y_ " _-tt_ \ , ;+~ ... .. - N. NAVEEN KUMAR AND ORS. _v._ STATE OF A.P. 731 ~ 8 _-i_ ' c 4. Learned counsel for the appellants submitted that since A the appellants are willing to deposit money there is no reason as to why the High Court should not permit release of the properties in favour of the legal heir of deceased accused. Undisputedly, when the offence was committed Section 5(2) of the Old Act was in force which reads as follows: "5(2)-Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine: Provided that the Court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year." J~ _-f_ 5. The corresponding Section 13(2) of the Prevention of Corruption Act, 1988 (in short the 'Act') reads as follows: "Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine." D E 6. According to the appellants in an appropriate case the fine amount as imposed can be enhanced and the custodial sentence can be reduced. We need not go into that question because Section 16 of the Act reads as follows: _"'1_ ~ _ _., ·+- _r_ .. "Matters to be taken into consideration for fixing fine- Where[F ] a sentence of fine is imposed under sub-section (2) of Section 13 or Section 14, the court fixing the amount of the fine shall take into consideration the amount or the value of the property, if any, which the accused person has obtained by committing the offence or where the conviction G is for an offence referred to in clause (c) of sub-section (1) of section 13, the pecuniaty resources or property _referred_ to in that clause for which the accused person is unable to account satisfactorily." H 732 SUPREME COURT REPORTS [2008] 14 S.C.R. A 7. The High Court has rightly noted that it is the present value of the properties which is of relevance and not the value of the assets at the relevant point of time of seizure. We find no substance in the plea of the appellants as canvassed in this appeal. It is open to the appellants to particjpate in the auction B for sale of the properties in question as and when held. A 8. The appeal is dismissed. S.K.S. Appeal dismissed.