of A.P. Vs. S. Narasimha
Kumar & Ors
 Insc 403 (13
Pasayat & S.H. Kapadia
MISC. PETITION NO. 2335 OF 2005 IN . CRIMINAL APPEAL NOS. 1446-1450 OF 2004
ARIJIT PASAYAT, J.
petition has been filed by wife of one D.V. Chandrasekhar who was accused no.3
in C.C. No.53/1990 and was respondent no.3 in the appeal. It is to be noted
that the appeal has been filed against the judgment rendered by a learned
Single Judge of the Andhra Pradesh High Court disposing of several Criminal
those revision petitions related to the judgment of the Court of the VII
Additional Munsif Magistrate, Guntur in C.C.
No.53 of 1990. The accused persons are described as A-1, A- 2, A-3 etc. A-1 was
charged with offences punishable under Sections 381, 411 and 120-B of the
Indian Penal Code, 1860 (in short 'IPC'); A-2 to A-11 and A-15 were charged
with offences punishable under Sections 120-B and 414 I.P.C. A-12 to A-14 were
charged with offence punishable under Section 411 I.P.C. A-4 died during the
trial of the case. The case against A-10 was separated. Through its Judgment
dated 26.11.2000 the trial Court convicted the above said accused persons for
the offences alleged against them and awarded sentences of various descriptions.
High Court set aside the conviction and sentence imposed in respect of the
concerned respondents. In the appeal as noted above, the deceased D.V.
Chandrasekhar who was A-3 is the respondent in the Criminal Appeal relating to
Criminal Revision no.1424 of 2001. The applicant has filed the present appeal
stating that on the death of the said respondent the appeal abated so far he is
concerned. The logic of Section 394 of the Code of Criminal Procedure, 1973 (in
short 'Cr.P.C.') was pressed into service. Learned counsel for the State on the
other hand submitted that Section 394 Cr.P.C. does not govern the case of an
appeal by special leave before this Court.
aforesaid D.V. Chandrasekhar died on 15.1.2004 and leave has been granted on
6.2.2004. It is 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. Section 394 Cr.P.C. reads as follows:
under Section 377 or Section 378 shall finally abate on the death of the
appeal under this Chapter (except an appeal from a sentence of fine) shall
finally abate on the death of the appellant:
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.
In this section,
"near relative" means a parent, spouse, lineal descendant, brother or
sister." 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').
Gajapathi Rao v. State of Andhra Pradesh
(AIR 1964 SC 1645) three-judge Bench of this Court was dealing with the
situation as to whether appeal by special leave against sentence of
imprisonment abates on the death of the accused/appellant. Three separate
judgments were rendered by the Hon'ble Judges. The principles as can be culled
out from the said decision are as follows: (though rendered in the context of
the Old Code are equally applicable under the Cr.P.C.).
Section 431 of
the Old Code does not apply proprio vigore to a case of appeal filed with the
special leave of the Supreme Court granted under Article 136 of the
Constitution of India, 1950 (in short the 'Constitution') when the
appellant-accused dies pending the appeal.
But where the
appeal is against sentence of fine, the appeal may be permitted to be continued
by the legal representatives of the deceased appellant accused. There is no
provision making such appeals abate. If they can be continued when arising
under the Old Code, there is no reason why they should not be continued when
arising under the Constitution. If revision petitions may be allowed to be
continued after the death of the accused so should appeals, for between them no
distinction in principle is possible for the purpose of continuance.
The principle on
which the hearing of a proceeding may be continued after the death of an
accused would appear to be the effect of the sentence on his property in the
hands of his legal representatives. If the sentence affects that property, the
legal representatives can be said to be interested in the proceeding and
allowed to continue it.
But where the
sentence is not one of fine but of imprisonment, which on the death of the
accused becomes infructuous, the sentence does not affect the property of the
deceased-accused in the hands of his legal representatives, and therefore, the
appeal, in such a case, would abate, upon the death of the accused.
In fact that the
accused was a government servant and was under suspension during the trial and
the fact that if the conviction and sentence were set aside, his estate would
be entitled to receive full pay for the period of suspension, cannot be said to
affect his estate, because, the setting aside of the sentence would not
automatically entitle the legal representatives to the salary. It would be
extending the principle applied to the case of a sentence of fine, if on the
basis of it appeal against imprisonment is allowed to be continued by the legal
representatives after the death of the appellant and for such an extension
there is no warrant.
was made to Pranab Kumar Mitra vs. State of West Bengal and Anr. (AIR 1959 SC 144). Again in Harnam Singh v. The
State of Himachal
Pradesh (1975 (3) SCC
343) the question was examined, and above principles were re-iterated. It was,
inter alia, held as follows:
contentions require an examination of Section 431 of the Code which reads thus:
appeal under Section 411A, sub-section (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
before us was filed by special leave granted under Article 136 of the
Constitution and is neither under Section 411A(2) nor under Section 417 nor
under any other provision of Chapter XXXI of the Code. Plainly therefore,
Section 431 has no application and the question whether the appeal abated on
the death of the appellant is not governed strictly by the terms of that
Section But, in the interest of uniformity, there is no valid reason for
applying to appeals under Article 136 a set of rules different from those which
govern appeals under the Code in the matter of abatement. It is, therefore,
necessary to find the true meaning and scope of the provision contained in
Chapter XXXI of
the Code of 1898, called "Of Appeals" contains provisions governing
appeals. The chapter opens with Section 404 which provides that no appeal shall
lie from any judgment or order of a Criminal Court except as provided for by
the Code or by any other law for the time being in force and ends with Section
431 which deals with abatement of appeals. Section 411A(2) provides for appeals
to the High Court from orders of acquittal passed by the High Court in the
exercise of its original criminal jurisdiction. Section 417 deals with appeals
to the High Court from original or appellate orders of acquittal passed by
courts other than a High Court. By Section 431, appeals against acquittal filed
under Section 411A(2) or Section 417 finally abate on the death of the accused.
Dead persons are beyond the processes of human tribunal and recognizing this,
the first limb of Section 431 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.
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.
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".
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.
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.
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." In view of what has been stated in the aforesaid two
cases, the appeal filed by the Stated of Andhra Pradesh so far it questions
correctness of the judgment in Criminal Revision no.1424 of 2001 stands abated
on the death of the respondent D.V. Chandrasekhar (A-3). The cause title shall
indicate the applicant's name to avoid confusion. The application is
accordingly disposed of.