- (1.) This is an appeal on a certificate granted by the Calcutta High Court. The respondent was appointed the Chief Refugee Administrator of the Burma Refugee Organisation in November 1942 and held that post till August 25, 1944, when he was suspended. He was believed to have embezzled large sums of money belonging to Government which were at his disposal as the Chief Refugee Administrator in conspiracy with certain persons. It was in that connection that he was suspended on August 25, 1944 and investigation into the alleged offences began thereafter. In that connection, the respondent was arrested in October 1914 and was bailed out. Eventually on July 21, 1945 the respondent was prosecuted under Ss. 120B and 409 of the Indian Penal Code before the Second Special Tribunal constituted under the Criminal Law Amendment Ordinance No. 29 of 1943 (hereinafter referred to as the 1943-.Ordinance). In the meantime, the Criminal Law Amendment Ordinance No. 38 of 1944 (hereinafter referred to as the 1944-Ordinance) was passed. The object of this Ordinance was to prevent the disposal or concealment of money or other property procured by means of certain scheduled offences punishable under the Indian Penal Code, and one of the offences to which this Ordinance applied was S. 409 of the Indian Penal Code, and any conspiracy to commit such offence, Section 3 of this Ordinance provided that where the Provincial Government had reason to believe that any person had committed (whether after the commencement of this Ordinance or not) any scheduled offence the Provincial Government was empowered (whether or not the Court had taken cognizance of the offence) to make an application to the District Judge within the local limits of whose jurisdiction the said person ordinarily resided or carried on his business, for the attachment of the money or other property which the Provincial Government believed the said person to have procured by means of the offence. But if for some reason such money or property could not be attached, the Provincial Government was given power to apply for the attachment of other property of the said person of value as nearly as might be equivalent to that of the aforesaid money or property. Section 3 therefore provided for something like what is attachment before judgment in a civil Court, and the Provincial Government was authorised to apply for attachment either of the money or property with respect to which the offence was said to have been committed and if that was not available, other property of equal value could be attached even though no offence had been committed with respect to that other property. Consequently, on November 21, 1944, an application was made on behalf of the Provincial Government before the District Judge for attachment of certain properties under S.13 of the 1944 - Ordinance on the ground that these properties had been purchased by the respondent with moneys procured by him by committing offences under Ss. 120-B and 409 of the Indian Penal Code. On February 22, 1945, another application was made for attachment of certain other properties. The District Judge ordered attachment of these two sets of properties after hearing the respondent and the orders of attachment have been extended from time to time. This took place even before the case of the respondent was sent up for trial before the Special Tribunal.
(2.) The respondent was eventually convicted by the Special Tribunal after a protracted trial on August 31, 1949. In the meantime the Criminal Law (1943 Amendment) Amending Ordinance No.12 of 1945, (hereinafter referred to as the 1945 - Ordinance) came into force on May 12, 1945. By this Ordinance, S.10 of the 1943-Ordinance was amended and the amended section was in these terms : "When any person charged before a Special Tribunal with an offence specified in the Schedule is found guilty of that offence, the Special Tribunal shall, notwithstanding anything contained in the Indian Penal Code (XLV of 1860), whether or not it imposes a sentence of imprisonment, impose a sentence of fine which shall not be less in amount than the amount of money or value of other property found to have been procured by the offender by means of the offence. " Therefore, when the Special Tribunal found the respondent guilty of the offences under Ss. 120B and 409 of the Indian Penal Code it sentenced him to rigorous imprisonment for five years and a fine of Rs. 45 lacs on the charge of conspiracy, and the reason why the fine was fixed at Rs. 45 lacs was that in the view of the Special Tribunal, the money procured by the respondent by means of the offence was over Rs. 45 lacs. The respondents went in appeal to the High Court from his conviction and the High Court upheld the conviction as well as the sentence of fine. The High Court however found that the money procured by the respondent by the commission of the offence of conspiracy was at least Rs. 30 1acs. Even so, the High Court did not interfere with the sentence of fine imposed by the Special Tribunal as it was of the view that S. 10 of the 1943-Orddinance as amended in 1945 prescribed the minimum limit of fine only and it was open to the Special Tribunal under the ordinary law to impose any amount of fine. The respondent then came in appeal to this Court, which was dismissed. This Court held that on the finding it was clear that at least Rs. 30 lacs had been misappropriated by the respondent as a result of the conspiracy and the minimum fine therefore had to be of that order; but considering the serious nature of the defalcations made by the respondent and the position of trust in which he had been placed, this Court found it impossible to interfere with the sentence. Judgment of this Court was delivered on December 12, 1956.
(3.) On January 8, 1957 an application was made to the District Judge concerned under S.13 of the 1944-Ordinance, and it was prayed that as it had been found by the courts that the respondent had procured at least a sum of Rs. 30 lacs by committing the offences specified in the Schedule to the 1943- Ordinance, the properties attached-under S. 3 of the 1944 Ordinance which were in the hands of a receiver might be confiscated and the receiver be ordered to hand over all the properties in his hands to the Government of India. An ex parte order was passed by the District Judge allowing the application on January 10, 1957. Thereafter, applications were made by the respondent and his wife for vacating this ex parte order and on May 11,1957, the ex parte order was vacated. Finally, on March 22,1958, the District Judge passed the order which is now under appeal, after hearing the respondent and his wife. The main objection taken before the District Judge appears to have been that there was no finding under S.12 of the 1944 Ordinance and therefore it was not open to the District Judge to take action under S.13 of the 1944- Ordinance. The District Judge repelled this objection and held on a construction of Ss. 12 and 13 (3) of the 1944 Ordinance that the amount of Rs. 30 lacs together with the cost of attachment had first to be forfeited to the Union of India from the properties attached and thereafter the fine of Rs. 45 lacs was to be recovered from the residue of the said attached properties. As however it was not possible to forfeit properties to the value of Rs. 30 lacs without valuation of the properties, the District Judge directed the receiver to submit a report as to the cost of attachment including the cost of management of the properties attached. He also, directed the parties to submit their estimates as to the value of the properties attached. With the proviso that if there was no agreement between them, a valuer would be appointed by the Court to evaluate the properties under attachment.;