Pranab Kumar Mitra Vs. The State of
West Bengal & ANR [1958] INSC 89 (3 October 1958)
SINHA, BHUVNESHWAR P.
DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.
SUBBARAO, K.
WANCHOO, K.N.
CITATION: 1959 AIR 144 1959 SCR Supl. (1) 63
CITATOR INFO :
R 1962 SC1530 (11,12) RF 1964 SC1645
(2,9,14,15,16) RF 1979 SC 745 (72)
ACT:
Criminal Revision-Death of Petitioner Pending
hearing- Application by legal representative to be added as party- Power of
High Court-if can consider legality of conviction- Code of Criminal Procedure
(Act V of 1898), ss. 439, 435, 431.
HEADNOTE:
There is no provision in the Code of Criminal
Procedure which limits the wide discretionary power conferred on the High Court
by s. 439- read with s. 435 Of the Code of Criminal Procedure to examine the
correctness, legality or propriety of any finding, sentence or order passed by
an inferior Court and, where it chooses to interfere either suo motu or at the
instance of a party, it has thereunder the power, in the ends of justice, not
only to bring the legal representative of a deceased party on record but also
to consider the legality of the order of conviction even when the sentence
inflicted may be a composite one of imprisonment and fine.
Imperatrix v. Dongaji Andaji, (1878) I.L.R. 2
Bom. 564, approved.
In Ye Nabishah, (1894) I.L.R. 19 Bom. 714,
considered.
Consequently, in a case where the accused
petitioner, who was convicted under s. 420 Of the Indian Penal Code and
sentenced to suffer one day's imprisonment, which really meant detention till
the rising of the Court on the day the order was pronounced, and to pay a fine
of Rs. 500/- and in default to suffer rigorous imprisonment for six months,
died during the pendency of the revision case in the High Court and his son
applied to be substituted as a party in order that he could challenge the order
of conviction and sentence and the High Court, holding that the principle Of s.
431 of the Code of Criminal Procedure applied, added him as a party but refused
to consider the legality of the order of conviction and reduced the sentence.
Held, that the High Court was in error in
limiting its powers under S. 439 of the Code of Criminal Procedure on the
analogy Of s. 431 of the Code, which in terms did not apply to a revision case,
and its decision must be set aside.
CRIMINAL APPELLATE JURISDICTION Criminal
Appeal No. 116 of 1956.
64 Appeal from the Judgment and order dated December 22, 1955, of the Calcutta High Court in Criminal Revision No. 714 of 1955,
arising out of the judgment and order dated May 9, 1955, of the Court of the Additional Sessions Judge at Alipore in Criminal Appeal No. 97 of 1955.
C. P. Lal, for the appellant.
H. J. Umrigar and R. H. Dhebar, for the
respondents.
1958. October 3. The Judgment of the Court
was delivered by SINHA J.-The simple question for determination in this appeal
on a certificate of fitness granted by the High Court of Judicature at
Calcutta,' is whether a pending application in revision made under s. 439 of
the Code of Criminal Procedure (to be referred to hereinafter as the Code),
finally abates on the death of the petitioner in the High Court, and if so, to
what extent.
It is not necessary to set out, in detail,
the facts of the prosecution case and the evidence upon which the findings of
the courts of fact were based, except to state that the appellant's father,
Sailendra Sundar Mitra, was tried and convicted by a MaListrate of the first
class, at Alipore.
The Appellate -Court has set out the case
against the accused in these words: " The charge against the accused was
that on the 2nd December, 1946, at Garden Reach, the accused, being an employee
as Establishment Clerk of B. C. II Section in the Traffic Accounts Office of B.
N. Railway (now Eastern Railway), cheated the said B. N. Railway Administration
by dishonestly inducing it by means of false representation in the pay bill of
the non-gazetted staff for November, 1946, to deliver to him Rs. 205-13-0 and
to one Satish Chandra Das Gupta, a clerk in the said B. C. 11 Section, Rs.
33-4-0 in excess of legitimate dues, and thereby committed an offence
punishable under section 420, I.P.C." The learned trial Magistrate
convicted the accused person for cheating in respect of Rs. 205-13-0, but gave
him the benefit of the doubt in respect of the sum of Rs. 33-4-0 65 claimed on
behalf of another person, named Satish Chandra Das Gupta. He sentenced the
accused to suffer one day's imprisonment (really, detention till the rising of
the court, on the day the order was pronounced), and to pay a fine of Rs.
500/-, and in default, to rigorous imprisonment for six months, more. He also
directed that out of the fine, if realised, Rs. 333/- shall be paid to the B.N.
Railway Administration (now, the South Eastern Railway) as compensation, by his
order dated February 11, 1955. On appeal, the learned Additional Sessions Judge
at Alipore (24, Parganas), after hearing the parties, dismissed the appeal, and
confirmed the orders of conviction and sentence passed by the learned trial
Magistrate, by his judgment dated May 9, 1955.
Being aggrieved by the judgment and orders of
the courts below, the accused aforesaid moved the High Court in its revisional
jurisdiction, under s. 439 of the Code. The High Court issued a Rule which was
registered as Criminal Revision Case No. 714 of 1955, and stayed the
realization of the fine pending the hearing of the Rule. During the pendency of
the case in the High Court, the accused person died on July 8, 1955, leaving
him surviving his widow and five children, all of whom were minors except the
appellant.
The appellant made an application on December
6, 1955, stating that he was one of the heirs of the deceased accused
(petitioner in the High Court), and that he was interested in proceeding with
the criminal revision case, and challenging the order of conviction and
sentence, passed against his deceased father. He, therefore, prayed that he
might be added as a party to the Criminal Revision Case No. 714 of 1955, so as
to enable him to challenge the order of conviction and sentence aforesaid. This
" application for substitution ", as the Division Bench of the High
Court has characterized it, was heard, and. the Bench passed its order on the
application on December 22, 1955, holding that the principle of s. 431 of the Code,
applied to a criminal revisional application even when there was a composite
sentence but only in so far as the sentence of fine 9 66 was concerned. The
application for substitution was, therefore, allowed. The High Court also ruled
that the conviction could not be challenged inasmuch as the sentence was a
composite one of imprisonment as also fine, and that, therefore, the revisional
application would survive only to the limited extent whether the sentence of
fine was proper or unduly severe. The High Court, therefore, refused to go into
the merits of the conviction, and confined itself to the question whether, in
the circumstances of the case, the sentence of fine of Rs. 500/- was unduly
severe. In view of the fact that the defence of the accused person was that he
had over-charged on account of a mistake, and that he was prepared to refund
the excess amount, the High Court directed that the sentence of fine be reduced
to the sum charged in excess, namely, Rs. 205/13/-. It also directed that the
whole of the amount of fine, if realized, shall be paid to the B.N. Railway
Administration (now South Eastern Railway). Being dissatisfied with the
aforesaid order of the High Court, the appellant moved the High Court and
obtained the necessary certificate of fitness from the High Court. Hence, this
appeal on a certificate under art. 134 (1) (c) of the Constitution, granted by
the High Court.
There is no relevant provision in the Code,
except s. 431 which is the last section in Chapter XXXI of the Code, dealing
with appeals, and is in these terms:- "431. Every appeal under section
411A, subsection (2), or section 417 shall finally abate on the death of the
accused, and every other appeal under this Chapter (except an appeal from a
sentence of fine) shall finally abate on the death of the appellant." It
is manifest that the section, in terms, applies. only to appeals, and lays down
that an appeal against an order of acquittal passed by the High Court in
exercise of its original criminal jurisdiction (s. 411-A (2)), or an appeal to
the High Court from an order of acquittal passed by any court other than the
High Court, shall finally abate upon the death of the accused, 67 and all
appeals under Chapter XXXI, except an appeal from a sentence of fine, shall
finally abate on the death of the appellant. The first part of the section
dealing, as it does, with appeals against orders of acquittal, naturally,
provides that such appears must, necessarily, abate because the accused person
has passed beyond the jurisdiction of the Court. The second part of the section
deals with appeals by convicted persons or by a person who has been deprived of
any property, or who has been ordered to furnish security, etc., and lays down
that such appeals shall finally abate on the death of the appellant except
appeals from a sentence of fine. As in the instant case, we are not directly
concerned with the legal position as it may emerge on the death of the
appellant or of an accused person as respondent, we need not go into the
question whether an appeal would abate if it is from a conviction and sentence
not only of fine but also of imprisonment though it may be till the rising of
the court.
We are here concerned with a case in which
the convicted person had served out his nominal sentence of imprisonment
(assuming that it was a legal sentence of imprisonment), and his application in
revision was pending and was mainly concerned with challenging the order of
conviction and sentence of fine, when the petitioner in the High Court died. As
already indicated, s. 431, in terms, does not apply to such a case.
The case has, therefore, to be determined on
first principles. It appears that the Criminal Procedure Code of 1882 (Act 10
of 1882), for the first time, introduced s. 431. That section came up for
consideration before a Division Bench of the Bombay High Court in its criminal
revisional jurisdiction in the case of In re Nabishab (1).
Shortly stated, the facts in that case were
that two persons had been convicted of criminal breach of trust, and each one
was sentenced to one year's rigorous. imprisonment and a fine of Rs. 1,000.
Both the convicted persons appealed to the High Court. One of them died during
the pendency of the appeal. The appeal of the surviving appellant was allowed
by the High Court,. and his Conviction (1) (1894) I.L.R. 19 Bom. 714.
68 and sentence were set aside. Thereupon,
one of the relatives of the deceased appellant applied to the High Court in its
revisional jurisdiction to set aside the conviction and sentence passed against
the dead man, and for a refund of the fine (which appears to have been paid).
It was held by the High Court, without
discussing the terms of the section and without giving any reasons for that
conclusion that the appeal in respect of the dead man had abated under s. 431
of the Code. The High Court refused to deal with the case in its revisional
jurisdiction on the ground that the case depended upon appreciation of
evidence.
It may be that the High Court came to that
conclusion.
presumably on the ground that the appeal was
not only against a sentence of fine but also against a substantive sentence of
imprisonment. Where a sentence both of fine and of imprisonment, is passed, and
an appeal or an application in revision is filed, the superior court may grant
bail or may not. It may be that in a case where bail has not been granted, the
convicted person may have served out his substantive sentence of imprisonment,
and by the time his appeal or application in revision comes up for hearing, the
substantial question to be determined by the High Court (or the Court of
Session where the appeal may be pending), is the legality, correctness or
propriety of the order of conviction and the outstanding sentence of fine. In
such a case, it may be a debatable question whether the appeal or the.
application in revision has abated. Such a situation arose in the case of
Imperatrix v. Dongaji Andaji (1). In that case, the accused person was
sentenced, on a charge of forgery, to four years rigorous imprisonment and a
fine of Rs. 1,000 by the Court of Session. During the pendency of the appeal in
the High Court, the appellant, who had not been released on bail, died in jail.
The matter was placed before a Division Bench of Melvill and Kemball, JJ. Melvill,
J., held that the appeal had abated on the death of the appellant, and the
functions of the High Court as an Appellate Court, ceased. He also held that as
there was no (1) (1878) I.L.R. 2 Bom. 564.
69 error of law in the order of conviction,
nor had it been shown that the sentence was too severe, the High Court could
not exercise its powers as a Court of Revision. In the course of his judgment,
he pointed out that the legal representative, of the deceased convicted person
is, no doubt, interested in procuring a reversal of a sentence of fine or of
forfeiture of property, but as the Code of Criminal Procedure, 1872 (Act X of
1872), did not confer any right of appeal on the legal representative after the
death of the convict, the appeal could not be heard and determined on merits.
Kemball, J., agreed with Melvill, J., that the legal representative of the
deceased convict could not prosecute the appeal, but he did not agree with him
in the view that the appeal bad abated, and that the functions of the High
Court as the Appellate Court,, came to an end on the death of the appellant. He
took the view -that as the record was before the Court, the Court could pass
such orders in the appeal as it thought proper. His view appears to have been
that with the death of the convicted person, the question of serving out the
whole or a portion of the sentence of imprisonment, no more survived, but as
the property of the deceased convict, in the hands of the legal representative,
continued to be liable for the payment of the fine, if unpaid during the period
provided by law, it was the interest of the legal representative to have the
case considered on merits. Ultimately, he came to the conclusion that there was
no doubt that the High Court could dispose of the case as a Court of Revision,
but he also thought that the Court was bound to decide the case as a Court of
Appeal. On this difference of opinion between the two learned Judges, the
matter was placed before Westropp, C. J. The learned Chief Justice agreed with
Melvill, J., that the Code had not made any provision for the continuance of an
appeal by the legal representative of a deceased convict, nor did the High
Court have the power to deal with the appeal on the death of the convicted
person. He based his conclusion substantially on the ground that the right to
appeal or to continue an appeal already pending, is 70 given by Statute
expressly or by necessary implication.
This view now finds statutory recognition in
s. 431. He also held that though the appeal had abated, the High Court had the
power to call for the record and exercise its revisional jurisdiction suo motu,
but he did not express any opinion whether in the case before the Court, such a
power could be exercised.
In our opinion, in the absence of statutory
provisions, in terms applying to an application in revision, as there are those
in s. 431 in respect of criminal appeals, the High Court has the power to pass
such orders as to it may seem fit and proper, in exercise of its revisional
jurisdiction vested in it by s. 439 of the Code. Indeed, it is a discretionary
power which has to be exercised in aid of justice. Whether or not the High
Court will exercise its revisional jurisdiction in a given case, must depend
upon the facts and circumstances of that case. The revisional powers of the
High Court vested in it by s. 439 of the Code, read with s. 435, do not create
any right in the litigant, but only conserve the power of the High Court to see
that justice is done in accordance with the recognized rules of Criminal
Jurisprudence, and' that subordinate criminal courts do not exceed their
jurisdiction, or abuse their powers vested in them by the Code. On the other
hand, as already indicated, a right of appeal is a statutory right which has
got to be recognized by the courts, and the right to appeal, where one exists,
cannot be denied in exercise of the discretionary power even of the High Court.
The Legislature has, therefore, specifically provided, by s. 431 of the Code,
the rules governing the right of substitution in case of death of an appellant,
but there is no corresponding provision in Chapter XXXII, dealing with the
question of abatement and the right of substitution in a criminal revision. We
may assume that the Legislature was aware of the decision of the Bombay High
Court, referred to above, when it enacted s. 431 for the first time in the Code
of 1882. If the Legislature intended that ail application in revision pending
in a High Court, should be dealt with on the same footing as a pending appeal,
it would have enacted accordingly.
71 But in the absence of any such enactment,
we may infer that the power of revision vested in the High Court under Chapter
XXXII of the Code, was left untouched-to be exercised according to the
exigencies of each case. The High Court is not bound to entertain an
application in revision, or having entertained one, to order substitution in
every case. It is not bound the other way, namely, to treat a pending
application in revision as having abated by reason of the fact that there was a
composite sentence of imprisonment and fine, as some of the single Judge
decisions placed before us, would seem to indicate. The High Court has been
left complete discretion to deal with a pending matter on the death of the
petitioner in accordance with the requirements of justice. The petitioner in
the High Court may have been an accused person who has been convicted and
sentenced, or he may have been a complainant who may have been directed under
s. 250 of the Code to pay compensation to an accused person upon his discharge
or acquittal. Whether it was an accused person or it was a complainant who has
moved the High Court in its revisional jurisdiction, if the High Court has
issued a Rule, that Rule has to be beard and determined in accordance with law,
whether or not the petitioner in the High Court is alive or dead, or whether he
is represented in court by a legal practitioner. In hearing and determining
cases under s. 439 of the Code, the High Court discharges its statutory
function of supervising the administration of justice on the criminal side.
Hence, the considerations applying to abatement of an appeal, may not apply to
the case of revisional applications. In our opinion, therefore, the Bombay
majority decision (1), in the absence of any statutory provisions in respect of
criminal revisional cases, lays down the correct approach.
There are a number of decisions in the books,
mostly of Judges sitting singly, that though s. 431, in terms, does not apply
to revisional applications, the principle of that section applied to such
cases. It is not necessary to refer to those cases specifically. In view of the
fact that even in the absence of any statutory (1) (1878) I.L.R. 2 BOM. 564.
72 provisions, we have held, in agreement
with the decision aforesaid of the Bombay High Court, that the High Court has
the power to determine the case even after the death of the convicted person,
if there was a sentence of fine also imposed on him, because that sentence
affects the property of the deceased in the hands of his legal representative,
it now remains to consider whether the High Court war, right in limiting its
power of revision to the question of fine only- whether it was proper or
excessive-without going into the merits of the order of conviction. Once it is
held that the High Court's revisional jurisdiction is attracted to such a case,
it is difficult to limit the exercise of such a power in the way the High Court
has done. Under s. 439 of the Code, the discretion is vested in the High Court
to exercise such of the powers of an Appellate Court, as may be attracted to
the case, and it has also the power to enhance a sentence subject to the
proviso that no order to the prejudice of an accused person, shall be made
unless he has had the opportunity of being heard. In the instant case, we are
not concerned with the question of enhancement of sentence; we are concerned
with the question whether there is any provision in the Code, which limits the
discretionary power of the High Court to examine the " correctness,
legality or propriety of any finding, sentence or order "- (s. 435),
passed by any inferior Court. On the death of the convicted person, the
question of his serving the whole or a portion of his sentence of imprisonment,
does not arise.
But the sentence of fine still remains to be
examined- whether it was well founded in law. This question cannot be
effectively gone into unless the order of conviction itself is examined on its
merits. If the fact that the fine will have to be paid out of the estate of the
deceased appellant or petitioner in revision, is the ground for giving the heir
or legal representative a right - to continue the appeal or a privilege of
maintaining or continuing a revision, the same principle should entitle him to
question the correctness of the conviction itself, for, if the conviction
remains, at least some fine, however nominal, will have to be paid by the heir
or 73 the legal representative out of the estate of the deceased.
In our opinion, therefore, where the High
Court thinks it fit and proper to entertain an application in revision or calls
for the record suo motu, it has the power to examine the whole question of the
correctness, propriety or legality of the sentence of fine, which necessarily
involves examining the order of conviction itself from that point of view.
For the reasons aforesaid, we allow the
appeal, and remit the case to the High Court to be dealt with in accordance
with law.
Appeal allowed.
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