RAMESAN (DEAD) THROUGH LR. GIRIJA A versus THE STATE OF KERALA on 21 January 2020

1. This appeal has been filed against the judgment of the HighCourt of Kerala dated 06.03.2014 by which Criminal Appeal of theappellant has been dismissed.

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2. Brief facts of the case giving rise to this appeal are:- 2.1A First Information Report was registeredagainst Ramesan under Sections 55 (a) and (g)of the Kerala Abkari Act [1 of 1077 (ME)].Charge under Sections 55(a) and (g) of theKerala Abkari Act was framed. Prosecutionled oral and documentary evidence to prove thecharge. Statement of Ramesan was alsorecorded under Section 313 of Cr.P.C., whocompletely denied the incident and charge.

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2.2Additional Session Judge vide its order dated20.12.2006 convicted the first accused Ramesanunder Section 55(a) and imposed imprisonmentfor a period of two years and a fine of Rs. OneLakh. The accused was also convicted andsentenced under Section 55(g) of the samepunishment of imprisonment of two years andfine of Rs. One Lakh. In default of payment offine amount, accused was to undergo simpleimprisonment for six months each underSections 55(a) and (g) of the Abkari Act.

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2.3An appeal was filed by the first accusedRamesan in the High Court being CriminalAppeal No. 254 of 2007 on 06.02.2007. Afterfiling of the appeal, the appellant Ramesan diedon 21.12.2007. The High Court noticed theGfactum of death of the appellant on 21.12.2007,however, proceeded to decide the appeal onmerits referring to the principle under Section394 Cr.P.C. The High Court after consideringthe evidence on record upheld the conviction.

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The High Court took the view that since theappellant died pending the appeal, the sentenceof imprisonment has become unworkable,however, regarding the imposition of fine, thereis no reason to hold that Court below committedany mistake and the appeal was consequentlydismissed. This appeal has been filed by GirijaA., the legal heir of Ramesan (deceased).

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3. Learned counsel for the appellant contended that in view of thedeath of the accused on 21.12.2007, the High Court ought to have abatedthe entire appeal. It is submitted that Section 394 of Cr.P.C. saves theCappeal, which arises against sentence of fine only. When there wascomposite sentence of imprisonment as well as fine, the appeal has toabate both against the sentence of imprisonment as well as fine. It iscontended that High Court committed error in proceeding to decide theappeal on merits. High Court ought to have abated the appeal in toto.

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4. Learned counsel for the State refuting the submission contendsthat there being sentence of fine also, the appeal has rightly been decidedon merits by the High Court. The sentence of fine or composite sentenceof imprisonment and fine, is also a sentence of fine.

5. We have considered the submissions of the learned counsel forEthe parties and have perused the records.

6. The only question to be decided in this appeal is as to whetherin the facts of the present case, the accused who was sentenced forimprisonment as well as for fine, the High Court committed an error innot abating the appeal in toto.

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7. Section 394 Cr.P.C. deals with abatement of appeals. Section394 is as follows:- “394. Abatement of appeals.

(1) Every appeal under section 377 or section 378 shall finallyGabate on the death of the accused.

(2) Every other appeal under this Chapter (except an appealfrom a sentence of fine) shall finally abate on the death of theappellant:

Provided that where the appeal is against a conviction andsentence of death or of imprisonment, and the appellant dies duringthe pendency of the appeal, any of his near relatives may, withinthirty days of the death of the appellant, apply to the AppellateCourt for leave to continue the appeal; and if leave is granted, theappeal shall not abate.

Explanation.- In this section,” near relative” means a parent,spouse, lineal descendant, brother or sister.”

8. Even in Cr.P.C., 1898, there was a provision pertaining toabatement of the appeal, which was to the following effect:- “431. Every appeal under Section 411-A, sub-section (2), orSection 417 shall finally abate on the death of the accused, andevery other appeal under this Chapter (except an appeal from asentence of fine) shall finally abate on the death of the appellant.”

9. Both under the Old Code as well as under the present Code ofCriminal Procedure, it is provided that the appeal against a sentence offine shall not abate.

10. The fine as per the provisions of Code of Criminal Procedureis recoverable from movable and immovable properties of the accused,Section 421 Cr.P.C. provided as follows:-

“421. Warrant for levy of fine. —(1)When an offender hasbeen sentenced to pay a fine, the Court passing the sentence maytake action for the recovery of the fine in either or both of thefollowing ways, that is to say, it may- (a)issue a warrant for the levy of the amount by attachmentand sale of any movable property belonging to theoffender; (b) issue a warrant to the Collector of the district, authorisinghim to realise the amount as arrears of land revenue fromthe movable or immovable property, or both, of thedefaulter:

Provided that, if the sentence directs that in default of paymentof the fine, the offender shall be imprisoned, and if such offenderhas undergone the whole of such imprisonment in default, no Courtshall issue such warrant unless, for special reasons to be recorded A

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in writing, it considers it necessary so to do, or unless it has madean order for the payment of expenses or compensation out of thefine under section 357.

(2) The State Government may make rules regulating themanner in which warrants under clause (a) of sub- section (1)Bare to be executed, and for the summary determination of anyclaims made by any person other than the offender in respect ofany property attached in execution of such warrant.

(3) Where the Court issues a warrant to the Collector underclause (b) of sub- section (1), the Collector shall realise the amountin accordance with the law relating to recovery of arrears of landrevenue, as if such warrant were a certificate issued under suchlaw:

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Provided that no such warrant shall be executed by the arrestor detention in prison of the offender.”

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11. Section 70 of Indian Penal Code provides that any part of finewhich remains unpaid may be levied at any time within six years afterthe passing of the sentence. The provision further provides that thedeath of offender does not discharge from the liability any property whichwould, after his death, be legally liable for his debts. Section 70 of theIndian Penal Code is as follows:-E

“70. Fine leviable within six years, or during imprisonment—Death not to discharge property from liability.—The fine, orany part thereof which remains unpaid, may be levied at any timewithin six years after the passing of the sentence, and if, underthe sentence, the offender be liable to imprisonment for a longerFperiod than six years, then at any time previous to the expira-tionof that period; and the death of the offender does not dischargefrom the liability any property which would, after his death, belegally liable for his debts.”

12. This Court had occasion to consider the provisions of Sections431 and 439 of Cr.P.C. 1898 in Pranab Kumar Mitra Vs. State ofWest Bengal and Another, AIR 1959 SC 144. Section 439 providesfor revisional jurisdiction of the High Court. One of the issues was as towhether Section 431 applies to revisional application filed in the HighCourt. In paragraph 7, this Court laid down following:- G

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“7. ………………………In view of the fact that even in theabsence of any statutory provisions, we have held, in agreementwith the decision aforesaid of the Bombay High Court, that theHigh Court has the power to determine the case even after thedeath of the convicted person, if there was a sentence of fine alsoimposed on him, because that sentence affects the property ofthe deceased in the hands of his legalrepresentative,………………………”

13. This Court in Bondada Gajapathi Rao Vs. State of AndhraPradesh, AIR 1964 SC 1645 had occasion to consider Section 431Cr.P.C. A special leave petition was filed in this Court, the accused diedduring pendency of special leave petition. This Court again reiteratedthe principle on which hearing of a proceeding may be continued afterthe death of an accused. ;In paragraph 3 of the judgment, following waslaid down:- “3. The principle on which the hearing of a proceeding may becontinued after the death of an accused would appear to be theeffect of the sentence on his property in the hands of his legalrepresentatives. If the sentence affects that property, the legalrepresentatives can be said to be interested in the proceeding andallowed to continue it.”

14. This Court had occasion to consider the case of a compositesentence of imprisonment as well as fine in Harnam Singh Vs. TheState of Himachal Pradesh, (1975) 3 SCC 343. In the above case,the accused was convicted under Sections 5(1)(d) and 5(2) of Preventionof Corruption Act, 1947 as well as under Section 161 Indian Penal Codeand he was sentenced for rigorous imprisonment of two years and to afine of Rs.300. Contention was raised before this Court that since thedeceased was not sentenced to pay a fine only but was punished with acomposite sentence of imprisonment and fine, the appeal would abateas regards the sentence of fine also. Such contention was noted inparagraph 4 of the judgment, which is to the following effect:- “4. Learned Counsel for the State of Himachal Pradesh, who arerespondents to the appeal, has raised a preliminary objection tothe right of the appellant’s widow to prosecute the appeal. Hecontends that the substantive sentence of imprisonment imposedon the appellant Harnam Singh came to an end with his death and A

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therefore the appeal in regard to that sentence stands abated. Asregards the sentence of fine, it is contended that since the deceasedappellant was not sentenced to pay a fine only but was punishedwith a composite sentence of imprisonment and fine, the appealwould abate as regards the sentence of fine also. According tothe learned Counsel this Court may, at the highest, set aside thesentence of fine if it finds that the appellant need not have beenasked to pay a fine. But the order of conviction and the substantivesentence must remain and the legality or propriety of that ordercannot any longer be questioned in view of the death of theappellant.”

15. Rejecting the above submission, this Court laid down that if bythe judgment under appeal a sentence of fine is imposed either singularlyor in conjunction with a sentence of imprisonment, the appeal againstconviction would be an appeal from a sentence of fine within the meaningof Section 431. In paragraph 10, following was laid down:-

“10. The narrow question which then requires to be consideredis whether an appeal from a composite order of sentencecombining the substantive imprisonment with fine is for the purposesof Section 431 not an appeal from a sentence of fine. It is truethat an appeal from a composite order of sentence is ordinarilydirected against both the substantive imprisonment and the fine.But, such an appeal does not for that reason cease to be an appealfrom a sentence of fine. It is something more not less than anappeal from a sentence of fine only and it is significant that theparenthetical clause of Section 431 does not contain the word“only”. To limit the operation of the exception contained in thatclause so as to take away from its purview appeals directed bothagainst imprisonment and fine is to read into the clause the word“only” which is not there and which, by no technique ofinterpretation may be read there. The plain meaning of Section431 is that every criminal appeal abates on the death of the accused“except an appeal from a sentence of fine”. The section for itsapplication requires that the appeal must be directed to the sentenceof fine and not that it must be directed to that sentence only. If bythe judgment under appeal a sentence of fine is imposed eithersingularly or in conjunction with a sentence of imprisonment, theappeal against conviction would be an appeal from a sentence of fine within the meaning of Section 431. All that is necessary isthat a sentence of fine should have been imposed on the accusedand the appeal filed by him should involve the consideration of thevalidity of that sentence.”

16. The above judgment categorically laid down that even ifsentence of fine is imposed alongwith the sentence of imprisonmentunder Section 431, such appeal shall not abate. The similar expression,which was used in Section 431, i.e., “except an appeal from the sentenceof fine” has been used in Section 394 Cr.P.C. Thus, the appeal in thepresent case where accused was sentenced for imprisonment as wellas for fine has to be treated as an appeal against fine and was not toabate and High Court did not commit any error in deciding the appeal onmerits.

17. This Court had occasion to consider Section 394 Cr.P.C. inLakshmi Shanker Srivastava Vs. State (Delhi Administration),(1979) 1 SCC 229. In the above case, the accused was sentenced tosuffer rigorous imprisonment for 18 months on each count and a fine ofRs.200. The accused had died during pendency of the appeal in thisCourt and argument was raised that in view of the above, the appealabates and cannot be proceeded with. Such argument was noticed inparagraph 4, which is to the following effect:- “4. Mr H.R. Khanna, learned Counsel who appeared for therespondent raised a preliminary objection. It was urged that theappellant died during the pendency of this appeal and, therefore,the appeal abates and cannot be proceeded with. Simultaneouslyit was urged that if the appeal were not to abate on the onlyground that the appellant was also sentenced to pay a fine of Rs200 and, therefore, it may be said that right to property of thelegal representatives may be adversely affected and, therefore,they would be entitled to continue the appeal, the respondent Stateis prepared to concede that the sentence of fine may be set aside.”

18. In the above case, a leave was obtained under the proviso toSection 394(2) by legal heirs to continue the appeal. This Court hadoverruled the primary objection that appeal should abate although relyingon the proviso to Section 394(2). The principle regarding non-abatementof the appeal from a sentence of fine as contained in Section 431 ofCr.P.C., 1898 as well as Section 394 of present Cr.P.C. is the same. A

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Asimilar legislative scheme has been contained, which was occurring inSection 431 Cr.P.C., 1898, hence, judgment of this Court regardinginterpretation of Section 431, Cr.P.C. as has been done by this Court inBondada Gajapathi Rao (supra) and Harnam Singh (supra) shallsquarely apply to the interpretation of Section 394 Cr.P.C.

19. We, thus, conclude that the appeal filed by accused Ramesanin the High Court was not to abate on death of the accused. The HighCourt rightly did not direct for abatement of appeal and proceeded toconsider the appeal on merits. The appeal before the High Court beingagainst sentence of fine was required to be heard against the sentenceof fine despite death of accused-appellant.

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20. Although, we have upheld the view of the High Court thatappeal filed by the accused was not to abate and was required to beheard and decided on merits but there is one aspect of hearing of theappeal before the High Court, which need to be noted. From the judgmentof the High Court, it does not appear that after the death of the appellant-Daccused, his legal heirs were given opportunity to proceed with the appealagainst the sentence of fine. The judgment of the High Court does notalso mention that any counsel has appeared for the legal heirs. TheHigh Court ought to have given an opportunity to legal heirs of the accusedto make their submissions against the sentence of fine, which fine couldEhave been very well recovered from the assets of the accused in thehands of the legal heirs.

21. In above view of the matter, we are of the view that ends ofjustice be served in reviving the Criminal Appeal No. 254 of 2007 beforethe High Court to give an opportunity to the legal heirs of the accused toFmake their submissions against the sentence of fine.

22. In result, the appeal is partly allowed. The judgment of theHigh Court dated 06.03.2014 is set aside and Criminal Appeal No.254 of2007 is revived before the High Court to be heard afresh after giving anopportunity to the legal heirs of the accused.

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Divya Pandey

Appeals partly allowed.

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