Harnam Singh Vs. The State of Himachal
Pradesh [1974] INSC 247 (21 November 1974)
CHANDRACHUD, Y.V.
CHANDRACHUD, Y.V.
BHAGWATI, P.N.
CITATION: 1975 AIR 236 1975 SCR (2) 823 1975
SCC (3) 343
ACT:
Code of Criminal Procedure, 1898, Section
431-"every other appeal", meaning of-Abatement of appeals on death of
accused-Provision for continuance of appeal from sentence of fine after death
of accused-Composite order of sentence combining substantive imprisonment with
fine, if appeal from sentence of fine.
Constitution of India, 1950, Article
136-Criminal Appealwidow of the deceased appellant, if can be brought on record
as legal representative of deceased appellant.
HEADNOTE:
In September 1967, the appellant was working
as a Patwari in Halqua Pali. On the 19th of that month one N asked for copies
of the revenue record. The appellant said that the copies will Dot be supplied
unless a hush-payment of Rs.30/was made. N borrowed Rs. 30/from a friend and on
the 20th he lodged his complaint with the Anti-corruption Department.
Sub-Inspector K. obtained permission from a Mandi Magistrate to investigate the
offence and laid trap.
The raiding party went to the appellant's
office where the complainant N is alleged to have given the marked currency
notes of Rs. 30/to the appellant. 'The appellant was prosecuted before the
Special Judge who rejected his defence that the sum of Rs. 30/was not found
from his person but was found from a residential room where it was planted by
the complainant. The Special Judge convicted the appellant under section
5)1)(d) read with Section 5(2) of the Prevention of Corruption Act as also
under sec. 161 of the Penal Code, and sentenced him to suffer rigorous
imprisonment for two years and to pay a fine of Rs. 300/-.
The High Court to which he preferred an
appeal, confirmed the conviction but reduced the substantive sentence to one
year. This appeal was by special leave granted under Article 136 of the
Constitution. During the pendency of this appeal the appellant died and his
widow was brought on the record as his legal representative.
It was contended that (i) the substantive
sentence of imprisonment imposed on the appellant came to an end with his death
and therefore the appeal in regard to that sentence stands abated; (ii) So far
as the sentence of fine is concerned, since the deceased appellant was not
sentenced to pay a fine only out was punished with a composite sentence of
imprisonment and fine, the appeal would abate as regards the fine also and
(iii) at any rate, even if the sentence of fine could be set aside. the order
of conviction and substantive sentence must remain.
Allowing the appeal,
HELD (i) and (ii) Chapter XXXI of the Code of
Criminal Procedure, 1898, called "of Appeals" contains provisions
governing appeals. Section 431 of the Code inter alia provides that every
appeal under section 411 A, sub-sec.
(2), or section 417 shall finally, abate on
the death of the accused and every other appeal under the Chapter (except an
appeal from a sentence of fine) shall finally abate an 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. 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 824 the word "only" which is not there and which by no
technique of interpretation may be read there. 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. The
deceased appellant's widow who was brought on the record as his legal
representative is, therefore, entitled to prosecute the appeal, because the
sentence of fine directly affects the property which would devolve on her on
the death of her husband. [826C-827F] (iii) Tee appellate court, while dealing
with the validity of the sentence of fine has to determine the primary question
whether the conviction itself is sustainable. Once the appellate court reaches
the conclusion that the conviction is unsustainable, it must set aside the
conviction and the sentence or sentences, following upon the order of
conviction; it cannot merely set aside the sentence of fine and permit the
conviction and the substantive sentence to remain. If this be the true
interpretation of section 431. there is no reason why the same principle ought
not to be extended to criminal appeal filed in the Supreme Court under Art. 136
of the Constitution. [828B-F] Bondada Gajapathy Rao v. State of Andhra Pradesh
[1964] 7 S.C.R. 251, distinguished Vidya Devi v. State, A.I.R. 1957 All,. 20
and V. Govindaraja & Ors. v. State of Mysore AIR 1962 Mysore 275 not
approved.
It is impossible to uphold the judgment of
the High Court on merits. The High Court held that. in spite of the fact that
two witnesses had turned hostile and had no regard for truth, their evidence
"firmly corroborated the evidence of the aforesaid partisan
witnesses". It is extremely difficult to appreciate how the evidence of
the hostile witnesses could corroborate the evidence of the partisan witnesses
that the accused accepted the bribe. What the High Court had to find was
whether on the evidence it war, established that the accused had accepted the
bribe from the complainant. There are a number of circumstances which would
render it unsafe to accept the prosecution evidence.
Having taken the view that the state of
affairs disclosed by the manner of investigation was not commendable and that
there was "sufficient misbehaviour" on the part of the prosecution agency,
the learned Judge should have approached the evidence with greater caution. His
failure to do so has resulted in, gross injustice, for, the evidence on which
the conviction is based is wholly unworthy of acceptance. [829G; 830D; 831D-E].
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 68 of 1971.
Appeal by Special leave from the Judgment
& Order dated the 18th December 1969/7th January, 1970 of the Delhi High
Court (Himachal Bench) in Crl. A. No. 20 of 1969.
S. B. Wad, for the appellant.
Vikram Chand Mahajan and R. N. Sachthey, for
the respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, J.-This appeal by special leave is directed against a judgment
dated January 7, 1970 of the Delhi High Court (Himachal Bench, Simla). This
appellant Harnam Singh died during the pendency of the appeal, this Court by an
order dated February 26, 1972 allowed his widow to be substituted in his place
as his legal representative.
There is nothing new in the story of bribe
taking which form the theme of this appeal, except perhaps the way the High
Court bear the story and drew a moral. In September, 1967 Harnam Singh was
working as a Patwari in Halqa Pali. On the 19th of that mont 825 Nitya Nand
asked for copies of the revenue record. Harnam Singh said that the copies will
not be, supplied unless a hush-payment of Rs. 30 was made. Nitya Nand borrowed
Rs. 30 from a friend Chet Ram and on the 20th he lodged his complaint with the
Anti-Corruption-Department. Sub Inspector Kewal Ram obtained permission from a Mandi
Magistrate to investigate the offence and laid the trap.
The raiding party went to Harnam Singh's
office where Nitya Nand is alleged to have given the marked currency notes of
Rs. 30 to Harnam Singh.
The Special Judge Mandi, Kulu and Lahaul
Spiti Districts, rejected the defence of Harnam Singh that the sum of Rs. 30
was not found from his person but was found from a residential room where it
was planted by the complainant Nitya Nand. The learned Judge convicted Harnam
Singh under section 5)1)(d) read with section 5(2) of the Prevention of
Corruption Act as also under section 161 of-the Penal Code, and sentenced him
to suffer rigorous imprisonment for two years and to pay a fine of Rs. 300. The
High Court of Delhi confirmed the, conviction but reduced the substantive
sentence to one year.
Learned counsel for the State of Himachal
Pradesh, who is respondents to the appeal, has raised a preliminary objection
to the right of the appellant's widow to prosecute the appeal. He contends that
the substantive sentence of imprisonment imposed on the appellant Harnam Singh
came to an end with his death and therefore the appeal in regard to that
sentence stands abated. As regards the sentence of fine, it is contended that
since the deceased appellant was not sentenced to pay a fine only but was
punished with a composite sentence of imprisonment and fine, the appeal would
abate as regards the sentence of fine also. According to the learned counsel
this Court may, at the highest, set aside the sentence of fine if it finds that
the appellant need not have been asked to pay a fine. But the order of
conviction and the substantive sentence must remain and the legality or
propriety of that order cannot any longer be questioned in view of the death of
the appellant.
On the other hand, Mr. Wad who has usefully
assisted us as an amicus curiae contends that section 431 of the Code of
Criminal Procedure, 1898 which deals with Abatement of "Appeals" has
no application to appeals filed in the Supreme Court; that such appeals ought in
the matter of abatement be governed by principles of justice and equity; that
even on the assumption that section 431 applies, the appellant having been
sentenced to pay a fine, the appeal cannot abate: and that if the sentence of
fine cannot be sustained on the ground that the conviction itself is bad, the
order of conviction must also go.
These contentions require an examination of
section 431 of the Code which reads thus "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." 826
The appeal 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 interests of uniformity, there is no valid reason for
applying to appeals under Article 136 a set of rules different from those which
government 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
section 431.
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 he 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 43 1, appeals against acquittal filed under
section 41 1 A (2) of section 417 finally abate on the death of the accused.
Dead persons are beyond the processes of human tribunal and recognising 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.
Every other 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. Every-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 prevasive 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 827 the offender does not discharge from the liability
any property which would, after his death, be legally liable for his
debts". The 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
realise 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 realising the fine even if the offender has undergone the whole of the
imprisonment in default of payment of fine. The sentence of fine thus 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.
The narrow 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 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 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
the liability Whether or not the sentence of fine is combined with any other
sentence can make no difference to the application of the principle.
The appeal filed by the accused Harnam Singh
in this Court was thus an appeal from a sentence of fine, involving as it did
the consideration as regards the legality or propriety of that sentence. The
deceased appellant widow who has been brought on the record as his legal
representative is accordingly entitled to prosecute the appeal.
Counsel for the State Government thought it
anomalous that whereas after the death of an appellant the court would have no
power 828 to deal with an appeal against an order by which a substantive
sentence only is imposed, the court should have the power to set aside the
conviction and the sentence of imprisonment even after the death of an
appellant merely because a sentence of fine is also imposed on him. The answer
to this difficulty is that by section 431 an express exception is carved out in
favour of appeals from a sentence of fine. Such appeals are saved from the
general rule contained in section 431 that all criminal appeals abate on the
death of the accused. In an appeal from a judgment imposing a sentence of fine
either by itself or long with a sentence of imprisonment, the legality or
propriety of the sentence of fine necessarily involves an examination of the
validity of the order of conviction. The sentence follows upon the conviction
and the validity of the two is interconnected. The appellate court, while
dealing with the validity of the sentence of fine, has to determine the primary
question whether the conviction itself is sustainable. If it holds that the
conviction is unsustainable, it must set aside the conviction and the sentence
or sentences following upon the order of conviction; it cannot merely set aside
the sentence of fine and permit the conviction and the substantive sentence to
remain. The sentence of the fine becomes illegal if the conviction is wrong. If
the conviction is wrong, no sentence at all can be imposed on the accused.
Therefore, once the appellate court reaches the conclusion that the conviction
is unwarranted, that finding must be given its full effect by setting aside the
conviction and all such sentences as are founded on the order of conviction. We
find it impossible to agree with the submission of the State Government that
even after finding that the conviction is illegal, the court must only set
aside the sentence of fine permitting the illegal conviction and the
substantive sentence founded upon it to remain. That would be truly unjust and
anomalous.
If this be the true interpretation of section
431, there is no reason why the same principle ought not to be extended to
criminal appeals filed in this Court under Article 136 of the Constitution.
Accordingly the widow of the deceased appellant who has been brought on the
record of the appeal as his legal representative is entitled to continue the
appeal as the sentence' of fine directly affects the property which would
devolve on her on the death of her husband.
In Gondada Gajapathy Rao v. State of Andhra
Pradesh(), the appellant was convicted by the High Court under section 302,
Penal Code and was sentenced to imprisonment for life.
He filed an appeal in this Court by special
leave but died during the pendency of the appeal. His sons and daughter applied
for substitution as his legal representatives contending that the conviction of
their father had resulted in his removal from Government service and if the
conviction were set aside the estate will be able to claim the arrears of
salary from the date of conviction till the date (if his death. This Court
declined to permit the legal representatives to continue the appeal on the
ground that the claim on the strength of which they sought permission to
continue the appeal was too remote. This decision is, distinguishable (1)
[1964] 7 S.C.R. 251.
829 as the appeal was not from a sentence of
fine and as the interest of the legal representatives was held to be contingent
and not direct. Even if the conviction were set aside, the legal representatives
would not have automatically got the arrears of salary due to their father.
In the, view we have taken the decisions of
the Allahabad High Court in Vidya Devi vs.' State(1) and of the Mysore High
Court in V. Govindrajalu & Ors. VS. State of Mysore(2) must be held to be
wrong in so far as the point of abatement is concerned. The Allahabad High
Court took the view that an appeal from a composite order of sentence would
abate as regards the sentence of imprisonment but may be continued by the legal
representatives as regards the sentence of fine.
This bisection of the appeal, as pointed out
by us, is not justified by the language of section 431 and would lead to unjust
and anomalous results. The Mysore decision assumed without any discussion that
an appeal from a composite order of sentence abates partially. The High Court
having held that the conviction of accused No. 3 in that case, who had died
during the pendency of the appeal, was justified the question did not arise in
sharp focus whether if the conviction was bad the order of conviction and the
sentence of imprisonment could be allowed to remain.
An amendment to section 431 was suggested in
the Bill introduced in the Parliament by a private Member, Shri K. V.
Raghunatha Reddy. The main object of the amendment
was to provide a machinery whereby the children or the members of the family of
a convicted person who dies during the appeal could challenge the conviction
and get rid of the odium attaching to the family as a result of the conviction.
The Law Commission of India by its Forty-First Report (September, 1969, Vol. 1,
pp. 279 to 281) found the proposed amendment " eminently sound" and
recommended that the amendment be made with certain modifications. Accordingly
section 394 of the Code of Criminal Procedure, 1973 has made a provision 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", 'near relative means a parent,,
spouse, lineal descendant, brother or sister.
Turning to the merits of the case we find it
impossible to uphold the judgment of the High Court. The main witnesses
examined by the prosecution in support of its case the complainant Nitya Nand
the Investigating Officer, Kewal Ram, the Head Constable Jai Ram and the two
Panchas Sital Prasad and Lok Bandhu. At the outset of its judgment of two and a
half pages the High Court observes "I am firm in my finding that PW-1 the
complainant, Shri Kewal Ram, the Investigating Officer, and Jai Ram, the
Head-Constable, are partisan witnesses. The state of affairs disclosed by the
manner of the investigation in this case is not very commendable.,, (1) A.I.R.
1957 All. 20.
(2) A.I.R. 1962 Mysore 275.
830 The Panchas Sital Prasad and Lok Bandhu
turned hostile and their evidence could not be pressed in aid by the.
prosecution. The High Court, however, held
that in spite of the fact that these two witnesses had turned hostile and had
no regard for truth, their evidence "firmly corroborated the evidence of
the aforestated partisan witnesses". We find it extremely difficult to appreciate
how the evidence of these hostile witnesses could corroborate the evidence of
the partisan witnesses that the accused accepted the bribe. The corroboration
which the High Court seems to have been impressed with is, as is stated by the
High Court itself, that when the preliminary Panchnama wig prepared the Panchas
were present, that the three marked currency notes were supplied by the
complainant Nitya Nand and that the number of those notes were noted in the
preliminary Panchnama.
What the High Court had to find was whether
on the evidence it was established that the accused had accepted the bribe from
the complainant. Unfortunately' the High Court has not discussed the various
aspects of the evidence which, in our opinion, is wholly unsatisfactory.
There are a large number of circumstances
which would render it unsafe to accept the prosecution evidence. The
Investigating Officer, Kewal Ram, took an almost unholy interest in the case.
The complaint which Nitya Nand is alleged to have made to the Anti Corruption
Department was written by Kewal Ram in his own hand. Kewal Ram then obtained
permission from the Magistrate to investigate the case by misleading the,
Magistrate. Under section 5 A of the Prevention of Corruption Act the
particular offence could not have been investigated by a police officer below
the rank of, a Deputy Superintendent of Police without an order of the
Magistrate of the First Class. In his application for permission to investigate
the offence Kewal Ram stated that there was no gazetted police officer in the
unit and therefore he may be allowed to undertake the investigation. The
evidence shows that the immediate superior of Kewal Ram, Inspector Amar Singh,
was at the relevant time in charge of the Anti-Corruption unit functioning at
Mandi. Kewal Ram obtained the permission to investigate the offence without
disclosing this fact to the Magistrate. The two Panchnamas neither mention the
time when they were made nor the place where they were made. The usual
precaution of applying anthracene powder to the marked notes was not taken. The
Panchas and the Police officers took their position at a spot from which they
could neither see nor hear what was happening in the office of the accused. The
two Panchas, who ultimately turned hostile, were previously known to the
complainant Nitya Nand. Head Constable Jai Ram procured an affidavit of the
Panch Sital Prasad in an unsuccessful attempt to bind him to the Statements
contained in the Panchnama. Above all there is a serious discrepancy in the
evidence as to whether the marked notes were found in a jacket worn by the
accused or the pocket of his shirt.
The accused examined himself as a witness in
support of his own case but the High Court has not even referred to his
evidence.
831 Considering the broad probabilities of
the case the evidence of the accused ought to be preferred to that of the
witnesses. examined by the prosecution. Nitya Nand planted the amount in a part
of the residential house of the accused and made a pretence of having given it
to the accused.
In the concluding portion of its judgment the
High Court observes :
"I, however, find that there has been
sufficient misbehaviour on the part of the prosecution agency in this case. I
cannot understand how an affidavit was obtained from PW-1. No doubt the witness
resiled while he was in the witness-box from the statement made to the police
and explained how the affidavit had been obtained from him but then the fact
remains that Shri Jai Ram who was having no authority whatsoever took Shri
Sital Parshad before a Magistrate and obtained an affidavit. That circumstance
by itself would not have been a mitigating circumstance but Harnam Singh is
losing the service for ever and will provide a sound example to those working
in his situation that they, can suffer in the same way. His losing of service
is a mitigating circumstance." Having taken the view that the state of
affairs disclosed by the manner of investigation was not commendable and that
there was sufficient misbehaviour on the part of the prosecution agency, the
learned Judge should have approached the evidence with greater caution. His
failure to do so has resulted in gross injustice for, we find that the evidence
on which the conviction is based is wholly unworthy of acceptance.
Learned counsel appearing for the, appellant
argued that the violation of section 5A of the Prevention of Corruption Act has
caused prejudice to the accused and has resulted in miscarriage of justice.
Were it necessary we would have upheld this contention because the order giving
permission to Kewal Ram to investigate the offence gives no reasons and the
illegality committed has resulted in a miscarriage of justice. Kewal Ram misled
the Magistrate into granting the permission and he had himself more than a personal
interest in the case which he sought permission to investigate. It is, however,
unnecessary to pursue this point as it is impossible to uphold the conviction
on merits.
In, the result we allow the appeal and set
aside the order of conviction, the substantive sentence as also the sentence of
fine. Fine, if paid, shall be refunded to the widow of the deceased appellant,
who has prosecuted the appeal.
V.M.K.. Appeal allowed.
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