On the 5th of December, 2016 Dr. J.Jayalalithaa, then the Chief Minister of Thamizh Nadu passed away, while a Criminal Appeal was pending before the Hon’ble Supreme Court, against the acquittal granted by the Hon’ble High Court of Karnataka. The Appellant in this case was the State of Karnataka, as the Prosecutor.
In the above scenario, on the day of the passing away of Dr. J. Jayalalithaa, what was her status as a citizen, endued with all the rights enshrined in the Constitution of India? I’d not have given serious thought to this, had I not been flooded with whatsapp messages stating that a “CONVICT” cannot be glorified in the Government offices or in the State Assembly by displaying her photographs and much less be exalted by the State government sponsoring the building of a memorial at the Marina.
According to me Dr. J. Jayalalitha was an AUTREFOIS ACQUIT, at the time of her demise and merely because a Criminal Appeal had been taken by the State, the Appeal does NOT reverse her status as a CONVICT under Section 120B of the IPC, 1860 and Section 13 of the PC Act, 1988. She had been absolved of all the taint which stuck to her by virtue of the Trial Court’s order convicting her of the above mentioned offences and sentencing her to serve 4 years’ imprisonment and a fine of Rs. 100 crores.
Did the Appeal reverse the status of the Accused who was ACQUITTED?
A categorical reply would be NO.
There was no CONCURRENT FINDINGS by the Trial court and the Hon’ble High Court, in fact the penultimate court order exonerated her and thereby her innocence of the offence was established under the abiding principles of “presumption of innocence till proven guilty”.
If that were so, when did the Hon’ble Supreme Court convict her?
By the fact that the Hon’ble Supreme Court set aside the Orders of the Hon’ble High Court and affirmed the Trial Court Order, the Hon’ble Supreme Court REINSTITUTED (not ‘AFFIRMED’) that Dr. J. Jayalalithaa was a CONVICT on the date of pronouncing the Judgement on 14/02/2017 in CRIMINAL APPEAL NOS. 300-303 OF 2017(Arising out of SLP(Crl.) Nos.6117-6120 of 2015).
Irony is that Dr. J. Jayalalithaa had passed away on 05/12/2016, so the question arises as to whether a person could be pronounced guilty and convicted after her death?
Secondly, the sentence was also upheld in toto, which means that Dr. J.Jayalalithaa shall serve a prison sentence of 4 years and also pay a fine of Rs. 100 crores. That she had died on 05/12/2016 would preclude the deceased from being within the grasp of the living to enforce such an incarceration. Therefore the sentence of the jail term of 4 years would have to necessarily abate, however, the fine of Rs. 100 crores imposed on her would be recoverable from her assets left behind, either in her own name or from the beneficiaries of her bequest.
The law governing abatement of proceedings upon death is available at Section 394 of the Criminal Procedure Code, 1973. Section 394 reads as under:
394. Abatement of appeals.
(1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused.
(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant: 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. Explanation.- In this section,” near relative” means a parent, spouse, lineal descendant, brother or sister.
“It was conceded by learned counsel for the parties that neither in the Cr.P.C. nor in the Supreme Court Rules there is any provision dealing with such a situation.” (State Of A.P vs S. Narasimha Kumar & Ors on 13 July, 2006)
Justices A. Pasayat and S.H. Kapadia, in their 2006 judgement, had excerpted passages from Harnam Singh v. The State of Himachal Pradesh (1975 (3) SCC 343), which appears relevant in the present context:
2. …….It is to be noted that Section 394 Cr.P.C. corresponds to Section 431 of the Code of Criminal Procedure, 1898 (in short the ‘Old Code’).
8……….Dead persons are beyond the processes of human tribunal and recognizing this, the first limb of Section 431 (Chapter XXXI of the Code of 1898) provides that appeals against acquittals finally abate on the death of the accused. Where a respondent who has been acquitted by the lower court dies, there is no one to answer the charge of criminality, no one to defend the appeal and no one to receive the sentence. It is of the essence of criminal trials that excepting cases like the release of offenders on probation, the sentence must follow upon a conviction. Section 258(2), Section 306(2) and Section 309(2) of the Code provide, to the extent material, that where the Magistrate or the Sessions Judge finds the accused guilty and convicts him he shall, unless he proceeds in accordance with the provisions of Section 562, pass sentence on the accused according to law.
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.
10. The narrow question which then requires to be considered is whether an appeal from a composite order of sentence combining the substantive imprisonment with fine is for the purposes of Section 431 not an appeal from a sentence of fine. It is true that an appeal from a composite order of sentence is ordinarily directed against both the substantive imprisonment and the fine. But, such an appeal does not for that reason cease to be an appeal from a sentence of fine. It is something more not less than an appeal from a sentence of fine only and it is significant that the parenthetical clause of Section 431 does not contain the word “only”. To limit the operation of the exception contained in that clause so as to take away from its purview appeals directed both against imprisonment and fine is to read into the clause the word “only” which is not there and which, by no technique of interpretation may be read there. The plain meaning of Section 431 is that every criminal appeal abates on the death of the accused “except an appeal from a sentence of fine”. The section for its application requires that the appeal must be directed to the sentence of fine and not that it must be directed to that sentence only. If by the judgment under appeal a sentence of fine is imposed either singularly or in conjunction with a sentence of imprisonment, the appeal against conviction would be an appeal from a sentence of fine within the meaning of Section 431. All that is necessary is that a sentence of fine should have been imposed on the accused and the appeal filed by him should involve the consideration of the validity of that sentence.
11. It is difficult to discern any principle behind the contrary view. The reason of the rule contained in the exception is that a sentence of fine operates directly against the estate of the deceased and therefore the legal representatives are entitled to clear the estate from that liability. Whether or not the sentence of fine is combined with any other sentence can make no difference to the application of that principle.”
State Of A.P vs S. Narasimha Kumar & Ors on 13 July, 2006
Bench: Arijit Pasayat & S.H. Kapadia, JJ
CASE NO.: Appeal (crl.) 1446-1450 of 2004.
The distinguishing part of the above mentioned judgement with that of Dr. J. Jayalalithaa’s case is that, the Appellant in the cited case was a “CONVICT”at the time of the Appeal, as the Appellant went on appeal against the orders of the High Court which had held him guilty, whereas, Dr. J. Jayalalithaa had been exonerated and the State went on appeal. Therefore, Dr. J. Jayalalithaa was innocent in the eyes of the law during the pendency of the Appeal.
The above judgement by Justices Pasayat and Kapadia is based on Section 431 of the 1898 CrPC, as no pari-materia provisions were found to be available to the succeeding CrPC and after adoption of the Constitution of India, the law had to be rewritten.
It is clear that only the Fine part could be continued and that too from the assets of the deceased Convict. But the question rises again whether a person could be held guilty of a crime after her death and be declared a Convict? If all the criminal proceedings except the liability of fine continued, at the time of her death, what is the sanctity of “presumption of innocence” which followed her acquittal? and who convicted her guilty after her death?, to create a claim over a fine, which was imposed by the Trial court and later set aside and thereafter revived by the SC Order dated 14/02/2017?
I have no answers for the above questions, but am sure that someone who is interested in ensuring that Dr. J. Jayalalithaa’s reputation is not sullied, by the exigencies of the political commotion, would be emboldened to raise it as a Curative Petition before the Hon’ble Supreme Court and remove the unwanted taint cast on her because of her association with EVIL.