MUSING ON THE ABATEMENT OF APPEAL IN THE SUPREME COURT AGAINST LATE J JAYALALITHA IN A DA CASE EVEN REGARDING IMPOSITION OF FINE OF RS 100 CRORE AGAINST HER BY THE TRIAL COURT

Complaint/FIR in 1996 – charge sheet by Police in 1997 – Charges framed by Trial Court – the Trial Court on September 27, 2014 convicted and sentenced Ms J Jayalalitha  for four years and with a fine of Rs.100 crore, and three other persons including Ms Sasikala Natrajan for four years each and with  a fine of Rs.10 crores each – in appeal the High Court acquitted all of them – appeal in SC - the Hon’ble SC gave patient hearing to all the parties. Arguments concluded. Written submissions taken on record. Judgment was reserved on the 7^th June, 2016. Liberty was granted to the learned counsels for the parties to file final written submissions/compilation of judgments, if any, by 10th June, 2016 - On 5^th December 2016, Ms J Jayalalitha passed away and, thus in law by virtue of Section 394(1) of CrPC, the appeals against her stood abated - the Hon’ble SC, on February 14, 2017,  set aside the judgment and order of the High Court and affirmed and restored the judgment of the Trial Court in toto against remaining three persons.

(Moot point is whether the abatement of appeal vide Section 394(1) of CrPC  against Late J Jayalalitha was right even wrt fine of Rs 100 crore imposed by the Trial Court inasmuch as that she got a full and effective hearing from Trial Court to Supreme Court during her life time? The Judgment was reserved by Hon’ble SC on 7^th June 2016 after a patient hearing to all parties after taking on record the written submissions. Liberty was also granted to the learned counsels for the parties to file final written submissions/compilation of judgments, if any, by 10th June, 2016. About 6 months thereafter, on 5^th December 2016, Ms J Jayalalitha passed away unfortunately. She left behind colossal corpus of properties. The Hon’ble SC gave final verdict on February 14, 2017 affirming and restoring the judgment of the Trial Court in toto against remaining three persons. Should not some blame lie at the door of the Hon’ble SC for making an inordinate delay in pronouncing the verdict? It may not be wholly out of place to note that according to Section 394(2) CrPC no appeal from a sentence of fine shall abate on the death of appellant)

NOTE: 

TC conviction order swallowed by HC acquittal order - appeal in SC abated and thus no order much less an adverse order against her by the SC. Consequent thereupon, HC acquittal order still stands and there is no revival of TC order – thus in the eyes of law, Late JJ is untainted.

POST SCRIPT: 21 March 2017

Karnataka Government moves SC seeking review of judgement exonerating the estate of late JJ from payment of fine of Rs 100/- crore because of abatement of appeal against her.
(“If a party dies after the conclusion of the arguments and the judgment is reserved, there is no question of abatement of appeal and that the judgment subsequently pronounced shall have the same force and effect as if the same was pronounced before the death took place...there are no provisions either in the Constitution or in the Supreme Court Rules, 2013 for such abatement of appeal. On the other hand, the Supreme Court Rules, 2013 provide that both in case of civil appeals as well as election petitions there will be no abatement if the death takes place after conclusion of hearing.....though a plea for jail sentence has become infructuous now, the Supreme Court should have nevertheless ordered that the Rs. 100 crore fine imposed on Ms. Jayalalithaa by the trial court be paid. The fine should have been recovered from her estate....even though the question of A 1 (Jayalalithaa) undergoing further imprisonment does not arise, sentence to pay fine is legally sustainable which has to be recovered from the estate. This is particularly so where the offence alleged is of illegally acquiring disproportionate assets. Therefore, the finding that the appeal has abated is not correct....a criminal appeal involving offences under the Prevention of Corruption Act stand on a slightly different footing where the allegation is of acquisition of disproportionate assets by a public servant... In the circumstances, though the death of the accused no 1 [Jayalalithaa] renders sentence of imprisonment infructuous, the question whether any fine is liable to be imposed as also confiscation of illegally acquired property will survive for consideration,” the review petition contends)

ROUND-UP OF CHEQUERED HISTORY OF THE CASE SPANNING OVER 21 YEARS

   

-       Complaint against Ms J Jaylalitha for amassing disproportionate wealth during her term as CM of Tamil Nadu during the check period from 01.07.1991 to 30.04.1996  by Dr. Subramanian Swamy (then President of Janata Party) on June 14, 1996 in the Court of Principal Sessions/Special Judge, Madras  , under Section 200 of Cr.P.C.

-       By order dated 21.06.1996, the Principal Sessions Judge/Special Judge, Madras directed investigation under Section 17 of 1988 Act and Section 202 of Cr.P.C. and further directed to collect necessary materials and submit a report before the Court within a period of two months.

-       Said investigation stayed by the Madras HC  for a brief period and thereafter the High Court directed the Director of Vigilance and Anti Corruption, Madras to take appropriate steps to investigate into the allegations made in the complaint and ultimately on September 18, 1996, an FIR was filed against Ms J Jaylalitha (A1)  under  Sections 13(1)(e) and 13(2)  of the Prevention of Corruption Act, 1988 Act.

-       The incriminating evidence collected during such investigation disclosed the complicity of Ms Sasikala Natarajan (A2), V.N. Sudhakaran (A3) i.e. Sasikala’s nephew and Jayalalitha’s foster son and  J. Elavarasi (A4) i.e. Sasikala’s sister-in-law in the alleged offence. Hence, an application was filed before the Special Judge on 22.01.1997 for addition of A2, A3 and A4 as co-accused and for incorporation of additional offences under Section 120-B of IPC read with Sections 13(2) and 13(1)(e) of 1988 Act and Section 109 of IPC.

-       On completion of such investigation, IO laid the charges against all the accused on 4.6.1997 which was duly registered as Spl. C.C. No.7/97 on the file of the IX Additional Sessions Judge, (Special Court, I), Chennai. Thereafter, the Court framed the charges against all the above accused persons.

-       The charges were denied by the accused persons.

-       During the pendency of the trial, the Court permitted further investigation under Section 173(8) of Cr.P.C. and granted letters rogatory for collecting evidence and materials relating to the alleged accumulation of disproportionate assets/wealth by A1 in conspiracy with A2 outside the Country. On the basis of the evidence collected during further investigation, a separate FIR in Crime No.2/AC/2000 was filed by the prosecution on 2.9.2000 against A1 and A2 which culminated into a charge-sheet dated 23.3.2001 registered as Spl.C.C. No.2/2001.

-       Subsequent thereto prosecution evidence was recorded from time to time. Thereafter, steps were taken under Section 313 Cr.P.C. So far as A1 was concerned, she was permitted to answer a questionnaire which was delivered to her with a direction to answer it on 25.2.2003, which was adhered to by A1. A2 to A4 were also questioned as per Section 313 Cr.P.C. which was duly concluded on 26.2.2003. Thereafter, defence witnesses were examined.

-       Thereafter, by its judgment dated 18.11.2003 in Transfer Petition (Criminal) Nos.77-78/2003 moved at the instance of Sh. K Anbazhagan (General Secretary, DMK) on Feb 28, 2003, the Supreme Court transferred the said matter to the State of Karnataka and in terms of the said judgment, the Government of Karnataka by its order dated 27.12.2003 duly accorded sanction for establishment of the Special Curt at Bangalore and by Notification dated 19.02.2005, duly appointed Shri B.V. Acharya, Senior Advocate and former Advocate General of Karnataka as Public Prosecutor to conduct the said matter.

-       Thereafter, the said matter bearing Spl.C.C. No.7/1997 was renumbered as Spl.C.C. No.208/2004 and Spl.C.C. No.2/2001 was renumbered as Spl.C.C. No.209/2004 on the file of the Special Judge (i.e. 36th Addl. City Civil & Sessions Judge at Bangalore. Subsequent thereto certain steps were taken on behalf of the accused and the matter travelled up to this Court/Supreme Court whereafter the trial was resumed before the Special Judge. The accused were called upon to examine their witnesses and subsequently 99 witnesses were produced before the Court and concluded their evidence.

-       On September 27, 2014, the Court of Special Judge, Banglore convicted all the accused persons and after hearing the learned counsel awarded the following sentence against the accused persons:

“For the offence u/Sec. 13 (1) (e) R/w. Sec. 13 (2) of the 1988 Act, A1 Selvi. J. Jayalalitha was sentenced to undergo simple  imprisonment for a period of four years and a fine of Rs.100 crores. In default to pay the fine amount, she was to undergo further imprisonment for one year. For the offence punishable u/Sec. 120-B I.P.C., R/w. Sec. 13 (2) of 1988 Act, A1 was sentenced to undergo simple imprisonment for six months and to

pay fine of Rs.1 lakh. In default to pay the fine, she was to undergo further imprisonment for one month. For the offence punishable u/Secs. 109 of I.P.C., R/w. Sec. 13 (2) of 1988 Act, A2 Tmt. Sasikala Natarajan, A3 Tr. V.N. Sudhakaran and A4 Tmt. J. Eavarasi were sentenced to undergo simple imprisonment for a period of four years each and to pay fine of Rs.10 crores each. In default to pay the fine amount, A2, A3 and A4 were each to undergo further imprisonment for one year. For the offence punishable u/Sec. 120-B of I.P.C. R/w. Sec. 13 (2) of 1988 Act, A2, A3 and A4 each were sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.10,000/- each. In default to pay the fine amount, A2, A3 and A4 were each to  undergo further imprisonment for one month. Substantive sentences of imprisonment were to run concurrently. Period of custody already undergone by the accused was be given set off u/Sec. 428 of Cr.P.C. It was  further ordered that, necessary direction were to be issued to the concerned banks to remit the proceeds of the Fixed Deposits and the cash balance standing to the credit of the respective accused in their bank account and the proceeds thereof were to be appropriated and adjusted towards the fine amounts. If after adjustment, still the fine fell 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 were to 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 were to be confiscated to the Government. All the immovable properties registered in the names of Lex Property Developments Pvt. Ltd., Meadow Agro Farms Pvt. Ltd., Ramaraj Agro Mills Pvt. Ltd., Signora Business Enterprises (P) Ltd., Riverway Agro Products (P) Ltd., and Indo Doha Chemicals and Phramaceuticals Ltd., which are under attachment pursuant to G.O. Nos. M.S. 120 and 1183, were be confiscated to the State Government. Out of the fine amount recovered as above, a sum of Rs.5 crores was to  be made over to the State of Karnataka towards reimbursement of the cost of trial conducted in the State of Karnataka”.

-       Being aggrieved, appeals were filed by the accused before the High Court of Karnataka at Bangalore challenging theorder passed by the Court of 36th Addl. City Civil & Sessions Judge at Bangalore. The High Court on its analysis came to the conclusion that the value of assets at the end of the check period in respect of accused Nos.1, 2, 3 & 4 together along with the firms/companies involved was Rs.66,44,73,537/- and accepted the value of the assets as indicated by the prosecution. The High Court arrived at a disproportionate assets of 8.12%  and following the principles laid down in Krishnanand Agnihotri Vs. The State of Madhya Pradesh, AIR 1977 SC 769 = (1977) 1 SCC 816,  held that when there is disproportionate asset to the extent of 10% or below, the accused are entitled to acquittal and accordingly the High allowed the Criminal Appeals and the Judgment of Conviction and Sentence passed was set aside and Appellants-Accused Nos.1 to 4 were acquitted of all the charges levelled against them. Order of the Trial Court relating to confiscation of the properties both movable and immovable was also set aside.

-       Assailing the judgment and order dated 11.05.2015, passed by the High Court of Karnataka at Bengaluru, appeals, by special leave, were filed before Supreme Court by the State of Karnataka and Mr. K. Anbazhagan on June 23, 2015. An Intervention application was also filed by original complainant Dr. Subramanian Swamy.

-       The Hon’ble SC gave patient hearing to all the parties, including the intervenor, in the matter. Written submissions  and compilation of judgments were also taken on record. Arguments thus concluded and Judgment was reserved on the 7^th June, 2016. Liberty was granted to the learned counsel for the parties to file final written submissions/compilation of judgments, if any, by Friday, the 10th June, 2016.

-       On 5^th December 2016, the respondent No.1 (Ms J Jaylalitha) expired and, thus in law by virtue of Section 394 of CrPC, the appeals against her stood abated. Section 394(1) inter alia envisages abatement of appeal filed under Section 378 in case of acquittal.

-       Nevertheless, in view of the gamut of the imputations and the frame-work of the charges as well as the nature of the evidence, oral and documentary, available on records, reference to her (respondent No.1 Ms J Jaylalitha ) role and involvement, based thereon in collaboration with other respondents was thoroughly examined.

-       After traversing through various documents and the evidence of the parties, the Hon’ble SC, on February 14, 2017,  set aside the judgment and order of the High Court and affirmed and restored 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 A1 with A2 to A4, reference to her (accused No. 1 Ms J Jaylalitha) 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 stood abated. Nevertheless, to reiterate, having regard to the fact that the charges framed against A2 to A4 were proved, the conviction and sentence recorded against them by the Trial Court is restored in full including the consequential directions. The direction of the Trial Court towards confiscation/forfeiture of the attached properties was restored.