The late Chief Minister J. Jayalalithaa’s 20-year-old Disproportionate Assets (DA) case is no ordinary one. Its ramifications, legally, in the country are wide-ranging and severe. A case regarding acquisition of disproportionate assets by a public servant, under the Prevention of Corruption Act, stands on a slightly different footing from an ordinary criminal case. In the case of possessing disproportionate assets, the allegation is that a public servant amasses wealth by illegal means and the object of law is not merely to punish the offender but also to see that the offender or his/her legal representatives do not own or enjoy such illegally acquired assets.
The Chief Minister passed away on December 5, 2016. Orders in the DA case had been reserved six months prior to this, after all hearings had concluded on June 7, 2016. On February 14, the Supreme Court upheld the ‘guilty’ verdict of the Bengaluru trial court, sending the other three accused — V.K. Sasikala, J. Ilavarasi and V.N. Sudhakaran — to jail, with a penalty of ₹10 crore each. The first accused, Jayalalithaa, was no more and hence the court held that the charges against her had abated.
On March 21, the State of Karnataka filed a review petition challenging that part of the order which held that the case against Jayalalithaa had abated. Our argument was that when the death of the accused takes place long after the arguments are concluded but before a judgment is pronounced, there will be no question of abatement of appeal.
But the Supreme Court, by dismissing on April 5 the review petition filed by the State of Karnataka, missed an opportunity to settle this issue. Consequentially, what the highest court of the country has done is to set a bad precedent in helping corrupt public servants.
Take the instance of an accused public servant choosing to commit suicide after acquiring huge property by illegal means. Legal representatives or heirs of the accused, according to the Supreme Court, can later enjoy the benefits of the illegally accrued wealth and property left behind, as the case against the accused public servant abates. This is a retrograde step in the march towards eradication of corruption in public life.
The question of abatement
Apart from the question as to whether a criminal appeal filed with leave under Article 136 of the Constitution of India will ever abate on the death of the accused, this particular case raised other equally important questions regarding alleged abatement where death has taken place after conclusion of the arguments and the judgment was reserved.
It is settled law that there is no hiatus (a break or a gap) between the date of conclusion of arguments and the date on which the judgment is ultimately delivered. A judgment is expected to be pronounced immediately after the conclusion of the arguments and pronouncing the judgment on a later date is only for the convenience of the court. Any event occurring between the date the judgment is reserved and the actual date it was delivered on could not have any effect on the judgment which is ultimately pronounced.
Order XXII Rule 6 of the Code of Civil Procedure in unambiguous terms states that there will be no abatement of an appeal if the death is after judgment is reserved. It further clarifies that such judgment pronounced shall have the same force and effect as if the judgment was delivered on the date on which the arguments were concluded.
The Supreme Court itself has constitutionally applied this rule in quite a few civil appeals by holding that there is no abatement of appeal where the death is after the judgment was reserved. The Supreme Court rules also provide that in the case of an election petition, the proceedings will not abate on the death of a candidate if death is after judgment is reserved once arguments are concluded.
There is no principle or authority which can be pressed into service to hold that a different view is possible in the case of a criminal appeal. The Supreme Court, in clear terms, held that the provisions of the Code of Criminal Procedure are not applicable to the appeals filed before the Supreme Court, by applying for Special Leave under Article 136 of the Constitution, though for the purpose of uniformity principles therein can be applied in suitable cases. The Supreme Court rules also do not provide for abatement of any criminal appeal. It can therefore be safely concluded that there is no constitutional or statutory provision providing for abatement of appeal, especially in a case where death has taken place after the judgment is reserved.
The abrupt conclusion of the Supreme Court that the appeal against Jayalalithaa has abated ignores the above said principle of law. It is also relevant to note that the case was never posted for further hearing after the death of the accused.
When judgment was pronounced on February 14, the court stated that the case against Jayalalithaa had abated, without any discussion on the questions involved. This finding was recorded without hearing the parties. Under the circumstances, it would have been appropriate for the Supreme Court to at least afford an opportunity to the parties to address arguments on this question and take a suitable decision. However, the court dismissed the review petition on merits, rejecting the request for oral hearing.
The legal implications arising out of the death of the accused after the judgment is reserved was not debated but the dismissal was recorded based on an erroneous view of law. The principle of sub silentio (action taken without notice, in legal terms) is thus applicable to the facts of the present case.
Reasons for review petition
In a section of the media an erroneous impression has been created that the State of Karnataka, in its greed to collect the fine amount of ₹100 crore imposed on Jayalalithaa by the trial court, has filed the review petition. The DA case was originally filed by the State of Tamil Nadu and Karnataka had to step into the case only after the direction of the Supreme Court, which transferred the case on a finding that the process of justice was being subverted in Tamil Nadu as the main accused held the post of Chief Minister of the State at the time.
The Supreme Court declared that the State of Karnataka is sole prosecuting agency in the case. It is only in obedience of the order of the Supreme Court that Karnataka has performed its role as sole prosecuting agency, so that there was a fair trial of the case. The State of Karnataka has no individual interest in the matter. The fine amount collected as also the confiscated assets could only benefit Tamil Nadu. Karnataka is not a beneficiary.
The right of the State of Karnataka is only for reimbursement of the expenses incurred in connection with the litigation (legal expenses) as ordered by the Supreme Court. Karnataka filed the review petition as it felt that an important question of law has been erroneously decided. It has chosen to do so only to fulfil its constitutional obligations. Now that the review petition has been dismissed, the case has ultimately reached its logical end. Karnataka can have the satisfaction of knowing that it has effectively performed the obligations imposed on it by the Supreme Court.
B.V. Acharya served as special public prosecutor and special counsel in the disproportionate assets case involving the late Tamil Nadu Chief Minister Jayalalithaa and AIADMK general secretary V.K. Sasikala