In
The Supreme Court of India Criminal Appellate Jurisdiction Criminal Appeal No. of
2008 (Arising Out Of Slp (Crl.) No.82 Of 2002)
Hari
Prasad Chhapolia Vs Union of India
JUDGMENT
Dr.
ARIJIT PASAYAT, J.
1.
This appeal was filed challenging the correctness of the judgment of a learned
Single Judge of the Orissa High Court.
The
appellant-Hari Prasad Chhopolia was convicted for offences punishable under
Sections 135(b)(1) of the Customs Act, 1962 (in short the `Customs Act') and
Section 85 (ii), (iii), (viii) and (ix) of the Gold (Control) Act, 1968 (in
short the `Gold Act')by the trial Court. The High Court by the impugned order
set aside the conviction and sentence for the offence punishable under Section
135(b)(1) of the Customs Act while upholding theconviction for the offence
punishable under Section 85 of the Gold Act. Leave was granted by this Court by
order dated 17.1.2002. The matter was listed for hearing on 7.6.2007 when none
appeared for the appellant. The matter was adjourned to 12.6.2007 when it was
mentioned that the appellant-Hari Prasad Chhapolia has died. Learned counsel
for the appellant wanted to take instructions and, therefore, the matter was
directed to be listed after three weeks. The matter was listed on 17.7.2007
when on the prayer made by the learned counsel for the appellant the matter was
adjourned by four weeks. On 29.8.2007 the following order was passed:
"Learned
counsel for the appellant prays or time. From the order sheet, it is clear that
n June 12, 2007 the matter was called for inal hearing before the vacation
Bench. At hat time, it was stated that the appellant has xpired. The learned
counsel for the appellant ought time to get instructions. Accordingly, he
matter was adjourned. Again the matter as placed on July 17, 2007 and on that
day 2 also order was passed to list the matter after four weeks.
Even
today, learned counsel for the appellant prays for time. As a last chance, list
the matter after two weeks." 2.On 25.10.2007 six weeks' time was granted
to the counsel to file vakalatnama and memo of appearance on behalf of legal
heirs of the deceased appellant. It is to be noted that by that time no
application for bringing on record the legal heirs of the deceased appellant
had been filed. Again on 11.12.2007, at the request of learned counsel who
appeared for the deceased appellant, the matter was directed to be listed after
one week. On 11.6.2008, on request the matter was directed to be listed today.
It appears that an application has been filed on 4.1.2008 for substitution for
bringing legal representatives of the appellant on record along with the
application for condonation of delay. The only ground indicated in the
application seeking condonation was that the legal heirs of the appellant were
not aware that the death of their father has to be intimated to the counsel at
Delhi for 3 preparing and filing the application for substitution. The moment
they knew about this requirement they contacted their counsel and application
has been filed on 4.1.2008.
3.Learned
Additional Solicitor General appearing for the respondent submitted that there
is no scope for accepting the application. Section 394 of the Code of Criminal
Procedure, 1973 (in short the `Code') has no application to an appeal before
the Supreme Court. In any event, time statutorily prescribed is 30 days. In the
instant case, application has been filed nearly after one year of the death of
the appellant Hari Prasad Chhapolia. Therein also no explanation has been
offered as to why the application was filed after such a long time.
Accordingly, he submitted that there is no scope for condoning delay beyond the
period of 30 days.
4.In
State of A.P. v. S. Narasimha Kumar and Ors. (2006 (5) SCC 683), it was noted
as follows:
4
"6. In Bondada 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.).
(1)
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.
(2)
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 ispossible for thepurposeof continuance.
(3)
The principle on which the hearing of a proceeding may be continued after the
death of an accused would appear to 5 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.
(4)
But where the sentence is not one of fine but of imprisonment, which on the
death of theaccusedbecomes 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.
(5)
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. Reference was made to Pranab Kumar Mitra
vs. State of West Bengal and Anr. (AIR 1959 SC 144).
6
5.In S.V. Kameswar Rao and Anr. v. State (A.C.B. Police, Karnool District,
Andhra Pradesh) (1991 Supp (1) SCC 377), it was inter-alia observed as follows:
"5.
Section 394 of the Code of Criminal Procedure reads that every appeal shall
finally abate on the death of the appellant. The proviso to that section says
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 relatives, which expression is defined by the explanation appended to this
proviso may within 30 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 the present case, none of the relatives of the
deceased within the term of the explanation to the proviso has approached this
Court within 30 days for leave to continue the appeal. This present application
is filed nearly after a period of 10 years.
No
explanation is given in this application for not approaching the court within
that prescribed period and no sufficient cause is shown for condonation of such
undue and inordinate delay of 10 years. A decision of this Court in P.S.R.
Sadhanantham v.
Arunachalam
is relied on in the petition wherein it has been held thus: (SCC p. 145, para
7) "Article 136 is a special jurisdiction. It is residuary power; it is
extraordinary in its amplitude, its limit, when it chases injustice, is the sky
itself."
7
6.In Harnam Singh v. The State of Himachal Pradesh (1975 (3) SCC 343 at paras
7, 14 and 15) it was observed as follows:
"7.
The appeal before us was filed by special leave granted under Article 136 of
the Constitution and is neither under Section 411-A(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
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
Section 431.
Xx
xx 14. 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.
15.
In Bondada Gajapathy Rao v. State of A.P. the appellant was convicted by the
High Court under Section 302 of the Penal Code and was sentenced to
imprisonment for life. He filed an appeal in this Court by special leave but
died during the pendency 8 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 of 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 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." 7.In view of what has been stated by this
Court in the afore-noted cases the principles embodied in Section 394 of the
Code can be pressed into service in appeals before this Court.It is true that
the period of 30 days has been statutorily fixed for making an application by
the legal heirs.
In
the instant case, the application was filed nearly after one year. We need not
go into the question as to whether there is scope for condonation of delay as
no acceptable explanation has been offered for the delayed presentation.
9
8.Several times the matter was adjourned at the request of learned counsel who
appeared for the original appellant. The plea that the legal heirs did not know
the requirement is clearly without any substance. The appeal has abated on the
death of the appellant and is disposed of accordingly.
..............................J.
(Dr. ARIJIT PASAYAT)
..............................J.
(G.S. SINGHVI) New Delhi, June 20, 2008
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