Bondada Gajapathy Rao Vs. State of Andhra
Pradesh [1964] INSC 77 (16 March 1964)
16/03/1964 SARKAR, A.K.
SARKAR, A.K.
HIDAYATULLAH, M.
MUDHOLKAR, J.R.
CITATION: 1964 AIR 1645 1964 SCR (7) 251
CITATOR INFO:
D 1975 SC 236 (15)
ACT:
Criminal Trial-Appellant sentenced to
imprisonment for lifeDeath during the pendency of appeal-Heirs whether can
prosecute appeal-Code of Criminal Procedure, 1898, (Act 5 of 1898), s. 431,
435, 439-Constitution of India, Art. 136.
HEADNOTE:
The appellant was convicted under section 302
of the Indian Penal Code and sentenced to imprisonment for life by the High
Court for the offence of the murder of his wife. He was granted special leave
to appeal by this Court. During the pendency of the hearing of this appeal the
appellant died. After his death his sons and daughter applied to this Court for
permission to continue to prosecute the appeal.
It was pleaded by the legal representatives
of the appellant that though that sentence of imprisonment could no longer be
executed, it still affected the property of the deceased and the legal
representatives were, therefore, interested in the appeal and should be
permitted to continue it. The appellant, who held a high office in the
Government of Andhra Pradesh had been suspended during the investigation of the
charge against him and he was dismissed from service under certain service
rules on his conviction. During this time the appellant had only been given a
small allowance.
On these facts it was pleaded that if the
conviction was set aside, the estate of the deceased would be entitled to
receive the full salary from the Government.
Held (Per Sarkar, J.): (i) Neither s. 431 nor
the cases mentioned can be said to apply to the present case proprio vigore,
for the present is not an appeal under the code of criminal procedure which is
dealt with by s. 431 nor is it a revisional application like the one which came
up for consideration in Pranab Kumar Mitra's case, while as for the English
case, it is only of persuasive value.
Pranab Kumar Mitra v. The State of West
Bengal, [1959] Supp. 1 S.C.R. 63 and Hodgson v. Lakeman, [1943] L.R. K.B. 15,
distinguished.
(ii).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.
This principle applies in appeals, revisions,
and in petitions under Art. 136 of the Constitution.
A sentence of fine no doubt affects the
property. In the present case, however, the sentence was not of fine but of
imprisonment which on the death of the accused has become infructuous. In the
present case the effect of the sentence imposed in this case being set aside
would not directly entitle the legal representatives to the salary. They will
have to obtain necessary orders from the Government for the purpose.
252 Held (Per Hidayatullah, J.): (i) This was
an appeal against a sentence of imprisonment and an appeal of this character
would normally abate on the death of the appellant because a criminal
prosecution is concerned primarily with the punishment of an offender and not
with the trial of an abstract issue about the truth or falsity of a prosecution
case. The same principle must apply to appeals after conviction, except in so
far as a judgment already rendered touches assets which would come to the legal
representative. In so far as personal punishment (other than a fine) is
concerned that stands dissolved by the death of the offender and an appeal to
get that punishment set aside becomes infructuous and abates.
Pranab Kumar Mitra v. The State of West
Bengal, [1959] Supp.
1 S.C.R. 63, Pritam Singh v. State, [1950]
S.C.R. 453, distinguished.
Hodgson v. Lakeman, [1943] L.R.K.B. 15,
Baghis v. Rowes [1955] 1 Q.B.D. 573, referred to.
(ii).The principle laid down in Pranab Kumar
Mitra v. The State of..West Bengal and Another and in Pritam Singh v. The State
has.no application to the present matter because there is no analogy between an
appeal by special leave and a revision under the code. The present case is not
a case where the legal representatives after the death of the offender have to
meet the liability of a fine or are required to protect the assets which they
claim should reach them. In the present case no claim of the petitioners is
jeopardized directly, by the judgment. Their claim is dependent upon the
administrative action of Government which may not proceed upon the result of
criminal prosecution.
This appeal was only concerned with the
correctness or otherwise of the conviction and not with any monetary claims
depending upon the result of the appeal. In such a situation the ordinary rule
that a criminal proceeding against a person comes to an end on his demise must
apply also to special appeals in this court, such as this, even though the
provisions of the Criminal Procedure Code may not be directly applicable.
Held (Per Mudholkar, J.): (i) The decision of
this court in Pranab Kumar Mitra v. The State of West Bengal has no, bearing
upon an appeal brought to this court by special leave.
It is no doubt true that the power confer-red
by section 435 of the Code on the High Court and certain other courts and by
Article 136 of the Constitution on this Court is discretionary. Under section
439 of the Code the High Court can exercise any of the powers conferred on a
court of appeal by sections 423, 426, 427 and 428 or on a court by s. 338 and
has also the power to enhance the sentence. Under Section 435 of the Code, the
High Court can suo motu call for the record of any inferior court but this
power cannot be exercised by this court under article 136 of the Constitution.
Therefore there is a fundamental difference between the power of the High Court
in revision and the power of this Court in Art. 136 of the Constitution.
Pranab Kumar Mitra v. The State of West
Bengal, [1959] Supp.
1 S.C.R. 63, distinguished.
(ii).In a criminal matter the issue is
personal between the accused person and the State and the right of appeal is
also personal to the appellant. There is admittedly no express provision
permitting the substitution of legal representatives of a decreased appellant
in a criminal appeal brought to this Court by 253 special leave. The policy of
the law discernible from s. 431 of the Code has to be borne in mind. The policy
under section 431 of the Code is that every criminal appeal under chapter XXXI
will abate except an appeal from a sentence of fine. There is no provision
which prescribes the continuation of the appeal on the death of the appellant
in cases where the sentence is of imprisonment.
The interest of the legal representatives in
the present case is not a direct interest in the sense that it cannot arise out
of the decision of this court even if it is in favour of the appellant. The
only interest which the applicants have is a contingent one and is not one
which could flow directly out of the ultimate decision of this Court.
Hodgson v. Lakeman, (1943) L.R.K.B. 15,
Regina v. Rowe, (1955) (1) Q.B.D. 573, Hesketh v. Atherton, Leach v. Wanstead
School Board, Siberry v. Connolly, Constantine v. Illingworth, Jones v.
Gallowfield, Rivers v. Glasse, (all cited in Short and Mellor, Practice on the
Crown Side of the King's Bench Division 2nd Ed. at p. 425), United States v.
Mook, 125 F2d 706, The State of Kerala v.
Narayani Amma Kamala Devi, [1962] Supp. 3 S.C.R. 943 and Imperatrix v. Dongali
Andaji, (1879) I.L.R. Bom. 564, referred to and discussed.
(iii).....The Legislature has by limiting in
section 431 of the Code the survival of appeals to appeals against sentences of
fine has chosen to recognise only one kind of interest and no other. This Court
in exercise of its inherent powers or discretionary powers would not be acting
according to correct legal principles in recognising a kind of interest which
the legislature has not chosen to recognise. In the circumstances the
applicants ought not to be granted special leave to prosecute the appeal.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 179 of 1961. Appeal by special leave from the judgment and order
dated October 31, 1960, of the Andhra Pradesh High Court in Criminal Appeal No.
161 of 1960.
K. R. Chaudhuri, for the appellant.
A. S. R. Chari, B. R. G. K. Achar, and R. N.
Sachthey, for the respondent.
March 16, 1964. The following judgments were
delivered SARKAR, J.-This is an appeal from a sentence of imprisonment for life
imposed on the appellant upon his conviction for the offence of the murder of
his wife. The appeal was filed with the special leave of this Court granted
under Art. 136 of the Constitution but the appellant died pending the appeal.
His legal representatives now seek leave to continue the appeal.
There would seem to be authority for the
proposition that revision petitions and some appeals from sentences of fine
might be continued by his legal representatives on the death 254 of the accused
pending the proceeding: see s. 431 of the Code of Criminal Procedure and Pranab
Kumar Mitra v. The State of West Bengal(1). It appears that in England appeals
from similar sentences are permitted to be continued by the executors of the
deceased appellant: see Hodgson v. Lakeman(2). It is true that neither s. 431
nor the cases mentioned can be said to apply to the present case proprio
vigore, for the present is not an appeal under the Code which is dealt with by
s. 431 nor is it a revisional application like the one which came up for
consideration in Pranab Kumar Mitra's case, while as for the English case, it
is only of persuasive value. All the same however I think it must now be held
that appeals from sentences of fine may be permitted to be continued by the
legal representatives of the deceased appellant. First, I find no, provision
making such appeals abate. If they can be continued when arising under the
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. It is true that the Code
of Criminal Procedure which creates the revisional powers of a Court provides
that such powers may be exercised suo motu but it does not seem to me that
Pranab Kumar Mitra's case(1) was based on this for on that ground all revision
cases should have been permitted to be continued and the permission should not
have been confined to cases of fine. Indeed in that case this Court proceeded
on the basis that there was no statutory provision applying to the case. It
observed, "even in the absence of any statutory provisions, we have
held............. 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". A sentence of fine affects
property equally when the case is taken further up in appeal or in revision, If
it is just and proper to continue the hearing in one case after the death of
the accused, it would be equally so in the other case.
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.
A sentence of fine no doubt affects the
property. In the present -case, however, the sentence was not of fine but of
imprisonment which on the death of the accused has become (1) [1959] 1 S.C.R.
63.
(2) [1943] L.R.K.B. 15.
255 infructuous. There is no one now who can
be imprisoned. It is, however, said that though that sentence can no longer be
executed, it still affects the property of the deceased and the legal
representatives are, therefore, interested in the appeal and should be
permitted to continue it. The matter is put in this way. The appellant, who
held a high office in the Government of Andhra Pradesh had been suspended
during the investigation of the charge against him and he was dismissed from
service under certain service rules on his conviction. During this time the
appellant had only been given a small allowance. It was said that if the
conviction was set aside, the estate would be entitled to receive the full
salary from the Government.
It seems to me that this contention is not accurate.
It may be that if the sentence is set aside that may assist the legal
representatives in their effort to obtain the full salary to which the
deceased's estate would have been entitled. But the effect of the sentence
imposed in this case being set aside would not directly entitle the legal
representatives to the salary. They will have to obtain necessary orders from
the Government for the purpose. It has not been shown to us that such order
will automatically follow the setting aside of the conviction. Neither has it
been shown that the legal representatives cannot move the Government to pass
such orders on the ground that the correctness of the conviction could not be
tested because of the death of the appellant. For these reasons I am unable to hold
that tire justice of the case requires that the legal representatives of the
deceased should be permitted to continue the appeal. It would be extending the
principle applied to the case of a sentence of fine, if on the basis of it this
appeal was allowed to be continued by the legal representatives after the death
of the appellant and for such an extension I find no warrant.
In my view, for these reasons the legal
representatives are not entitled to continue the appeal. That being so and as
the sentence was one of imprisonment which would not affect anyone after the
death of the accused, it cannot be said that there is anyone interested in the
appeal. There is no, question, therefore, in such a case for proceeding further
with the appeal.
HIDAYATULLAH, J.-The appellant was convicted
under s. 302 of the Indian Penal Code and sentenced to imprisonment for life by
the High Court of Andhra Pradesh. He was granted special leave to appeal by
this Court. During the pendency of this appeal the appellant died on August 30,
1963. After his death his sons and daughters applied to this Court on October
5, 1963 for permission to continue to prosecute the appeal. Their petition is
all that we are concerned with at the present moment.
The appellant was working as Superintending
Engineer (Electricity) in the service of the Government of Andhra Pradesh. The
case against him was that on August 10, 1959 he 256 committed the murder of his
wife by shooting her in the back with a revolver. He was acquitted by the
Sessions Judge of Krishna Division, Masulipatnam but, on appeal by the State
Government the order of acquittal was set aside and he was convicted and
sentenced as above. In view of the appellant's death we are of course not
interested any further in considering the details of the offence, if any,
unless we allow the heirs of the appellant to prosecute the appeal after his
death and this is precisely what the present petitioners claim they are
entitled to do. It is admitted, however, that no analogous contention was ever
raised in this Court, though appeal on the death of a sole appellant were,
before this, treated as abated. One would expect that an appeal of this
character would normally abate on the death of the appellant because a criminal
prosecution is concerned primarily with the punishment of an offender and not
with the trial of an abstract issue about the truth or falsity of a prosecution
case. The maxim actio personalis moritur cum persona is often invoked in this
behalf.
The Criminal Procedure Code in s. 431 also
provides that all -appeals filed under s. 41 I-A sub-s. 2 or s. 417 shall
finally abate on the death of the accused and every other appeal under Chapter
XXXI shall finally abate on the death of the appellant, except an appeal
against a sentence of fine. The section cannot cover a, case such as the
present because this appeal was not filed under any of the sections mentioned
in s. 431 or under Chapter XXXI.
It is contended that without the aid of a
provision like s. 431, Criminal Procedure Code, the appeal must be treated as
continuing and it is pointed out that for this reason and for the additional
reason that the powers of revision can be exercised suo motu this Court allowed
legal representatives t` continue to prosecute criminal revisions under s. 439
of the Code in Pranab Kumar Mitra v. The State of West Bengal and Another(1)
and Pritam Singh v. The State(2). It is urged that on a parity of reasonig this
appeal can be continued by the heirs. It is not my purpose to consider, whether
in the absence of any direct injury to the living every criminal proceeding
must come to an end after the death of the accused whether before his
conviction or after.
But there must always be some discernible
reason for permitting another person to continue an appeal whether civil or
criminal after the death of the appellant. An appeal is not a heritable asset
and does not revolve as a matter of course upon an executor or heir. Even under
the civil law an express provision is required for substitution of another person
in the place of the person deceased before the appeal can be continued and this
is again subject to whether the cause of action survives or not. The same
principle is again to the (1) [1959] (1) S.C.R. 63.
(2) [1950] S.C.R. 453.
257 forefront in s. 431 when it allows an
appeal in respect of fine to be continued but not appeals involving
imprisonment.
The intention there too appears to be to
afford only those persons a right whose interests are directly jeopardized by
the judgment. In so far as personal punishment (other than a fine) is concerned
that stands dissolved by the death of the offender and an appeal to get that
punishment set aside becomes infructuous and abates.
The only question in this case is whether the
principle laid down in the two cases of this Court cited above should govern
special appeals or the principle underlying s. 431.
It may be said at once that the former is not
a direct precedent applicable to the present matter because there is no analogy
between an appeal by special leave and a revision under the Code. The latter
can be suo motu but not the former. The petitioners claim that the father, if
he were acquitted, would have been entitled to claim his pay for the period
upto his death since on his conviction he was removed from service by the
Government and the amount thus involved is Rs. 40,000/-. The petitioners say
that if the appeal were now allowed they would be able to ask for this amount
and in this way claim an interest in the appeal. This is not a case where the
legal representatives after the death of the offender have to meet the
liability of a fine or are required to protect the assets which they claim
should reach them. This is a case where the petitioners claim to have the
judgment of the High Court reexamined so that they may be able to prefer a
claim to the salary to which their father would have been entitled if he had
been acquitted of the criminal charge. In my judgment. no claim of the
petitioners is jeopardized directly by the judgment. Their claim is dependent upon
the administrative action of Government which may not proceed upon the result
of the criminal prosecution. In other words, the claim on the strength of which
the present petitioners seek to join in this appeal is too remote and not
directly consequential upon the issue to be tried. The appeal was only
concerned with the correctness, or otherwise of the conviction and not with any
monetary claims depending upon the result of the appeal. In such a situation
the ordinary rule that a criminal proceeding against a person comes to an end
on his demise must apply also to special appeals in this Court, such as this,
even though the provisions of the Criminal Procedure Code may not be directly
applicable.
At the hearing counsel cited cases from the
English Courts and the Supreme Court of the United States. The English cases
referred to are collected in Short & Mellor's Practice of the Crown Office
and Griffith's Guide to Crown Practice and the cases of the United States are
referred to in Annotations.
L/P(D)ISCI-9 ..
258 in 87 Lawyer's Edition 1234 and 1
Lawyer's Edition II Series 1879. The English practice appears to be that there
must be a, direct monetary liability attaching to the living by reasons of the
impugned judgment before they can be allowed to continue an appeal filed by a
dead person. See Hodgson v. Lakeman(1) and Regina v. Rowe(2). The American
practice also appears to be the same.
There is good reason for holding that a
criminal prosecution in which the State is anxious to bring an offender to book
with a view to getting him punished for a crime comes to an end on the death of
the person arraigned. The same principle must apply also to appeals after
conviction, except in so far as a judgment already rendered touches assets
which would come to the legal representatives or the executor as the case may
be. Beyond this it is not possible to conceive of remoter interests because if
the law were to take into account such remote interests every appeal would have
to be continued after the death of the appellant. In my judgment, the present
petitioners do not claim any direct interest and the appeal must, therefore, be
taken to have abated. I agree that the petition be dismissed and the appeal
held to have abated.
MUDHOLKAR, J.-This appeal raises an interesting
and important question. It is whether the heirs at law of a deceased person who
had brought an appeal to this Court by special leave in which he had challenged
his conviction and sentence for an offence, are entitled to prosecute the
appeal after his death during the pendency of the appeal.
The applicants are the children of the
deceased who was a Superintending Engineer (Electricity) in the service of the
Government of Andhra Pradesh. He was charged with an offence under s. 302,
Indian Penal Code for having committed the murder of his wife by shooting her
with a revolver.
During the investigation of the offence he
was placed under suspension with effect from August 10, 1959 and was allowed
subsistence allowance for some time. His defence at the trial was that while
his wife was picking up the revolver from the teapoy on which he had kept it,
suspecting that he would shoot himself with it, it went off accidently and
killed her. This defence was accepted by the Sessions Judge and he was
acquitted. On appeal by the State the High Court of Andhra Pradesh set aside
the acquittal and convicted him of an offence under s. 302, I.P.C. and
sentenced him to undergo imprisonment for life. He thereupon sought and
obtained special leave from this Court to prefer an appeal.
During the pendency of the appeal he died.
According to the applicants a sum of Rs. 40,000/would be due to the deceased,
being the difference between the subsistence allowance actually paid by the
Government to him and the total emoluments that would have been payable to him
from the date of (2) [1955] 1 Q.B.D. 573 (1) [1943] K.B. 15.
259 suspension till his death and that they
as his legal heirs would be entitled to act this amount in case the conviction
and sentence are set aside by this Court.
In support of his contention that the appeal
has not abated by reason of the death of the appellant Mr. K. R. Chaudhuri
points out that s. 431 of the Code of Criminal Procedure (hereafter referred as
the Code) which speaks about appeals is limited in its application to appeals
under Ch. XXXI of the Code and would not fetter the powers of this Court under
Art. 136 of the Constitution to hear an appeal brought before it by special
leave even though the person who brought it is no longer alive. It is no doubt
true that s. 431 of the Code only says that appeals under s. 411A, sub-s. (2)
and s. 417 shall finally abate on the death of the accused and every other
appeal under Chapter XXXI except an appeal from a sentence of fine shall
finally abate on the death of the appellant. It does not, therefore, in terms
apply to an appeal permitted to be preferred by this Court in exercise of its
discretion under Art. 136 of the Constitution. The argument of Mr. Chaudhuri is
that the power conferred upon this Court by Art. 136 is wide and discretionary
and is analogous to that conferred upon the High Court by s. 439 read with s.
435 of the Code.
Therefore, upon an analogy of the decision of
this Court in Pranab Kumar Mitra v. The State of West Bengal and another(1)
this Court has the power to hear the appeal and to permit the applicants to
prosecute it. He does not contend that the applicants have a right to be
brought on the record in place of the deceased appellant but submits that to
meet the ends of justice it would be right and proper to permit the applicants
to prosecute the appeal because if it succeeds they will be able to claim from
the Government the arrears with respect to salary due to their deceased father
from the Government.
It seems to me that the decision upon which
reliance has been placed has no bearing upon an appeal brought to this, Court
by special leave. It is no doubt true that the power conferred by s. 435 of the
Code on the High Court and certain other courts and by Art. 136 of the Constitution
on this Court is discretionary. In so far as the High Court and certain other
courts are concerned the discretion is to call for and examine any record of
any proceeding before an inferior criminal court situate within the local
limits of its jurisdiction for the purpose of satisfying itself as to the
correctness, legality or propriety of any finding, sentence or order passed by
the inferior court and as to the regularity of any proceeding of such court.
Under s. 435 these courts have power to act in this manner suo motu and s. 440
provides that no party has a right to be heard either (1) [1959] Supp. 1 S.C.R.
63.
L/d)D)ISCI-9,a) ....
260 personally or by a pleader before such
court, with one exception. That exception is that the High Court cannot make an
order under s. 439 of the Code to the prejudice of an accused person unless he
is given an opportunity of being heard either personally or by pleader in his
defence. When the record comes before the High Court it may in its discretion
exercise any of the powers conferred on a Court of appeal by sections 423, 426,
427 and 428 or on a Court by s. 338 and has also the power to enhance the
sentence.
Article 136 of the Constitution confers
discretion upon this court whether to grant special leave or not. But this
Article does not confer any power upon this Court to call for the record of any
court or tribunal suo motu for the purpose of examining it and making an
appropriate order. It only empowers this Court to grant leave to a person to
bring his appeal before it and afford him an opportunity of showing such error
as may be existing in the judgment or order appealed from. There is a
fundamental difference between a power which is exercisable by a Court suo motu
and a power which can be exercised only when it is moved in that behalf by a
party. For the exercise of suo motu power the appearance of a, party before the
Court concerned is not a prerequisite. Indeed as s. 440 provides, it is for the
Court to decide whether or not to allow the party to appear before it and be
heard. But of course the principle of natural justice would preclude a court
even in such a case from making an order to the prejudice of a party without
giving the party an opportunity to be heard. In so far as an appeal is
concerned, by whichever way it is brought, whether as of right conferred by a
provision in the Constitution or by any other law or by special leave the
appellant has a right to be heard and a right to prosecute the appeal. A Court
exercising suo motu powers may choose at any stage to drop the proceeding and
not proceed to examine the records at all. But as long as an appeal is pending
before a Court and there is a person legally competent to prosecute it and
there is no legal impediment to its being heard, the Court has no discretion to
refuse to go on with the appeal even though initially it may have been brought
before it by its leave. As soon as -the leave is granted a right accrues in
favour of the party who has been granted leave. It may be that where this Court
finds that leave has been improperly obtained or given it may revoke the leave.
But that is quite different from saying that without revoking the leave it can
drop the appeal. This distinction between revisional powers and appellate
powers has been adverted to in the decision relied upon(1) at p. 70.
Sinha, J. (as he then was) has observed:
"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 (1) [1959] Supp. 1 S.C.R. 63.
261 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 of appeal, where
one exists, cannot be denied in exercise of the discretionary powers even of
the High Court." Thus, when the special leave granted by this Court has
not been revoked it can exercise with respect to the appeal before it what may
be called appellate powers. While hearing an appeal from the decision of a High
Court, this Court will, therefore, be competent to exercise only such powers as
the High Court itself could exercise in relation to the appeal. In so far as
the procedure for hearing a criminal appeal by special leave is concerned this
Court has framed certain rules. Order XXI of Supreme Court Rules, 1950 contains
those rules. Rule 23 of that Order provides for the entering of appearance by
parties in the appeal.
Rule 24 provides for the filing of statements
of case by the parties. Rule 25 provides for setting down the appeal for
hearing. Rule 26 empowers the Court to direct the engagement of an Advocate at
the cost of the Government in a proper case where the accused person is not
represented by an Advocate 'on record of his choice. Rule 27 provides for
giving a notice to the accused where he is not represented on the date fixed
for the hearing of the appeal and permits the accused person if he so wishes to
present his case by submitting his argument in writing and provides for the
consideration of the written argument at the hearing. Subrule (2) of that rule
dispenses with necessity of production of the accused person in custody at the
hearing of the appeal. There is no express rule which states as to what has to
be done where the accused person who is an appellant is not present or
represented at the hearing of the appeal.
Order XLV, rule 5, however, preserves the
inherent power of the Court to make such orders as may be necessary to meet the
ends of justice or to prevent the abuse of the process of the Court. Thus this
Court has the power to prevent the abuse of its process and it will be an abuse
of its process if the appellant despite service of notice of the date of
hearing chooses to remain absent at the hearing. Now, just as the Court can,
under r. 18 of 0. XXI dismiss an appeal for non-prosecution where the appellant
refuses to take the necessary steps for bringing the appeal to hearing, it must
be deemed to have similar power to dismiss it where the appellant is not
present or is not represented. Where the absence of the appellant is due to the
fact that he is dead it would still be a case of non-prosecution and,
therefore, this Court would have the right and the duty to dismiss the appeal.
Since the power 262 to prosecute the appeal inhered in the appellant alone, no
one: else can claim to exercise it unless the law conferred such a right upon
that other person. This the law may do expressly as. it has done in 0. XXII of
the Code of Civil Procedure or impliedly as it has done in s. 431 of the Code.
Apart from the fact that in a criminal matter
the issue is personal between the accused person and the State the fact remains
that the right of appeal is also personal to the appellant. It cannot be
allowed to be exercised by another unless there is some provision in law which
would permit it to be exercised or unless such a course is permissible by
reference to a principle. There is admittedly no express provision permitting
the substitution of the legal representatives of a deceased appellant in a
criminal appeal brought to this Court by special leave. We have, however, to
bear in mind the policy of the law as enacted in s. 431 of the Code. The policy
is that every criminal appeal under chapter XXXI will abate except an appeal
from a sentence of fine. Thus, instead of there being any principle on the
strength of which the legal heirs of a person could be allowed to prosecute
after his death an appeal brought by him challenging his conviction and
sentence of imprisonment the policy of the law is definitely opposed to it.
Moreover, only a person who can properly
represent a deceased appellant can be allowed to be brought on record in his
place and prosecute the appeal. That is the principle upon which the provisions
of 0. XXII of the Code of Civil Procedure are based. That again is the
principle followed by the Courts in England in allowing appeals in which the
challenge was to a fine imposed upon the appellant to be continued by the
executors and administrators of the deceased appellant. As an instance of this
would first refer to Hodgson v. Lakeman(1). In that case Viscount Caldecote
C.J., permitted the executors of the deceased appellant claiming an interest in
the appeal against his conviction and sentence of fine to prosecute the appeal.
The fine, though a small one, would have been
a burden on the estate and thus the executors could be said to have had an
interest in having that burden removed. This case was distinguished in Regina
v. Rowe(2) In that case the widow of the deceased appellant sought leave to
prosecute the appeal in which he had challenged his conviction on four counts
of obtaining money by false pretences and the sentence of imprisonment to 18
months. The ground on which the widow's application was supported was that the
conviction against her husband affected her chances of employment and her
position among her friends and that if interest is the test, then the widow
also had an interest. This argument was repelled by Lord Goddard C.J. who said
that the Court cannot take notice of that because the interest she (1) [1943] 1
K.B. 15. (2) [1955] 1 Q.B.D. 573.
263 has was not a pecuniary one. It was
further urged before the Court that where any person might be prejudiced by a
conviction against a deceased person, and an appeal was lodged before the death
of that person, the Court should allow the appeal to be continued by that
person so that if there had been a miscarriage of justice and the heirs of the
deceased were living under the shadow of the fact that their relative had died
a convict, the interests of justice would require that the appeal be heard. To
this argument the answer of the learned Chief Justice was that this would be a
case for making an application for a tree pardon. In the course of the judgment
he observed:
"............... we cannot allow a widow
or an executor or an administrator of a deceased person to appeal to this court
unless they can show a legal interest. If a person is sentenced to pay a fine
and dies having appealed, or even if he dies after payment of the fine-it might
be immediately afterwards-it may be that the court would allow executors or
administrators to appeal merely on the ground that if the conviction were
quashed they could recover the fine for the benefit of the estate of the
deceased which they are bound to administer. In Hodgson v. Lakeman(1) to which
our attention was called, which was a case before the Divisional Court, but the
principle would be the same, the appellant was dead, and the court allowed the
executors to continue the appeal because there was a pecuniary interest.
Supposing, as sometimes happens, a man is convicted on indictment and fined
pound 500; the money has to be paid, and the Crown can recover that money
whether he is alive or dead, for it can recover it against his estate, and,
therefore, it would be an injustice if the executors were not allowed to appeal
and to say that the conviction was wrong, because, if it was wrong, the money
would be saved.
It may be that it is artificial to say that
if there is a pecuniary penalty an appeal might lie, whereas if corporal
punishment or imprisonment is imposed there cannot be an appeal, but at the
same time I do not see any ground on which we can say in the present case that
anybody has an interest. It may be that the widow would be very glad to have
her husband's name cleared, but we cannot take any notice of that sentimental
interest. There is nobody affected now by the judgment of the court because
[1943] K. B. 15.
264 the judgment was a sentence of
imprisonment and the prisoner has died. It would be a very novel step if, in
these circumstances, we said that the court would entertain an appeal." In
Short and Mellor's (The Practice on the Crown Side of the King's Bench
Division, second edition) it is stated at p. 425 that the practice does not
seem to be uniform and reference is made to some cases. In one of them-Hesketh
v. Atherton(1) the counsel was allowed to argue an appeal after the death of
one of the parties. But in Leach v. Wanstead School Board (2) (2) wherein a
conviction against the father of a child for not sending the child to school
was challenged in appeal and the father and the child had died in the
meanwhile, the Court refused to allow the case to be argued on the ground that
there was no interest surviving.
In Siberry v. Connolly(3) where there was a
claim for seaman's wages, the appellant's executors were allowed to take the
place of the deceased appellant. In Constantine v. Illingworth(4) where the
defendant in a criminal case had died, the Court ordered the case to be struck
out. The same was done in Jones v. Fallow field(5). In Rivers v. Glasse(6)
where the respondent had died and the appellant had given notice to the
executors to support the conviction, the Court heard and determined the case
and gave costs to the respondent's executors. The position so far as the United
States is concerned is set out as follows(7):
"The death of an accused ordinarily
abates a criminal action, including review proceedings pending at that time.
The interest of the deceased's
representatives or next of kin in clearing his good name was held in United
States v. Mook(8) not to be sufficient to allow the appellate court, after the
defendant's death pending his appeal from a conviction of violating the
Interstate Commerce Act, to decide the appeal on the merits. The court however,
added: 'we think it may not be amiss to say that it seems to us that the
next-of-kin of a convicted person who dies pending an appeal have an interest
in clearing his good name, which Congress might well believe would justify a
change in the law."' Thus in that jurisdiction also the basis of
intervention, when permitted, is a survival of an interest in the heirs or
executors of the deceased. That interest would only be a pecuniary one (1)Short
and Mellor at p. 425.(2) ibid.
(3)ibid. (4) ibid.
(5)ibid. (6) ibid.
(7) 1 L.Ed. 2nd Series, p. 1879.(8) 125 F2d.
706.
265 and where the estate is not affected by
the conviction there would be no ground for allowing the intervention of the
heir or executor. It may be that the interest of the heirs of the deceased convict
to clear his name should be recognised and they ought to be allowed an
opportunity to clear it.
But unless it is recognised by the
legislature the court cannot take notice of it. So far as the Court is
concerned, the only question arising in the appeal before us is whether the
conviction and sentence of imprisonment are correct in law. The only person who
had an interest in the appeal before the Court in showing that both were not
justified was the appellant and since he is dead, the interest which he had
ceases to exist and cannot pass to anyone.
Another case which was referred to at the bar
was The State of Kerala v. Narayani Amma Kamala Devi(1) in which the decision
in Pranab Kumar Mitra's case (2) was relied upon and reference was made to
Imperatrix v. Dongaji Andaji(3) In that case also the question was whether the
High Court -could exercise its revisional powers against an accused person even
after his death. There the Court was not concerned with its own powers with
respect to a criminal appeal brought before it by special leave.
It is then said that the applicants have an
interest inasmuch as the estate of the deceased appellant would be enriched by
Rs. 40,000/if this Court ultimately finds the appellant innocent and if the
Government, acting on the basis of the decision of this Court which is binding
upon it, rescinds the suspension order passed against the appellant and in
conformity with it pays the arrears of salary due to the appellant. This
interest is not a direct interest in the sense that it cannot arise out of the
decision of this Court even if it is in favour of the appellant. The only
interest which the applicants have is a. contingent one and is not one which
could flow directly out of the ultimate decision of this Court. If we may
mention, the argument advanced in Rowe's case(4) before Lord Goddard C.J., that
by clearing her deceased husband's name the widow's chances of securing
employment would improve was not accepted as creating a pecuniary interest such
as to justify granting her permission to prosecute the appeal.
Indeed, the legislature has, by limiting in
s. 431 of the Code the survival of appeals to appeals against sentences of fine
has chosen to recognise only one kind of interest and no other. There could be
several other kinds of interest, as was suggested during the arguments at the
bar. But this Court, in (1)[1962] Supp. 3 S.C.R. 943. ( 2 ) [1959] Supp. 1
S.C.R.
63. (3) (1879) I.L.R. Bom. 564. (4) [1955] 1
Q. B.D. 573.
266 exercise of its inherent powers or discretionary
powers, would not be acting according to correct legal principles in
recognising a kind of interest which the legislature has not chosen to
recognise. In the circumstances, therefore, I am clear that the applicants
ought not to be granted leave to prosecute the appeal.
Leave to prosecute appeal refused.
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