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Report No. 41

31.61. Section 43.-Principle underlying.-

Section 431 deals with the abatement of appeals. The section deals in the first part with appeal against acquittals, and in the second part with other appeals under the Chapter, but excluding an appeal from a sentence of fine. The first class of appeals abates on the death of the accused, and presents no difficulty. The second class of appeals finally abates on the death of the appellant, except an appeal from a sentence of fine. A sentence of fine does not abate on the death of the person sentenced, as it is not a matter which affects a person only, but affects his property. This principle was enacted in the section to override an earlier decision of the Bombay High Court1 on the Code of 1882, holding that the appeal of the person sentenced by the Sessions Judge to imprisonment and fine abated on his death during appeal.

1. Nabi Shah (in re:), 1894 ILR 19 Born 714 (Jardine and Ranade JJ.).

31.62. Decision of Supreme Court following the English rule.-

In an appeal to the Supreme Court under Article 136 of the Constitution in respect of a sentence of imprisonment for life, the appellant died during appeal and his legal representatives sought leave to continue the appeal. The Supreme Court refused to grant leave, on the principle that such a sentence would not affect his property.1 Though section 431 did not apply in terms to the case, the Court said that it would not recognise a kind of interest which the legislature had not recognised. The English rule that law courts do not recognise any interest other than pecuniary interest seems to be the basis of this decision.

Though in a majority of cases, where the appellant, who is sentenced to imprisonment, dies during the pendency of the appeal, the interest of his legal representatives in the appeal may be purely sentimental, there are exceptional cases, where the interest may also be pecuniary. Thus, if the conviction is on a charge of murder of a near relation, whose heir or one of whose heirs is the alleged murderer, he (if the conviction is not set aside) will be disqualified from inheriting his property..-3 If he dies during the pendency of the appeal, his heirs have a pecuniary interest in prosecuting the appeal. If the appeal succeeds, their right of inheritance to the property of the deceased through the appellant will be saved.

So far as revision is concerned, it has been held by the Supreme Court4 that the High Court can exercise the power of revision in respect of an order made against the accused person even after his death. The decision of the Madras High Court5 cited below may not be correct in view of the decision of the Supreme Court which does not appear to have been cited before that High Court.

1. B. Gajapathi Rao v. State of Andhra Pradesh, AIR 1964 SC 1645 (1647, 1653), paras. 3, 4, 5, 18: (1964) 7 SCR 25.

2. Section 25, Hindu Succession Act, 1956.

3. As to Muslim Law, see Mulla Muhammadan Law, (15th Edn.) Article 58.

4. State of Kerala v. Naravani Amma, 1962 Supp (1) SCR 63: AIR 1959 SC 144 (148), para. 7.

5. Balasubramania Mudaliar v. Doraikannu Ammal, AIR 1966 Mad 154.

31.63. Amendment suggested in a private Member's Bill.-

An amendment to section 431 was suggested in a private Member's Bi111 as follows.-

1. Shri K.V. Raghunatha Reddy's Bill (The points made in the Bill have been referred to the Law Commission).

"11. Section 431 of the principal Act shall be renumbered as su.-section (1) thereof and

(i) in the su.-section as so renumbered, after the words "except an appeal from a sentence of fine" the words and figures "and an appeal under section 417" shall be inserted;

(ii) after the section as so r.-numbered, the following su.-section shall be inserted, namely.-

"(2) On the death of the appellant, an appeal under su.-section (3) of section 417 may be prosecuted by any aggrieved person with the permission of the court to which an appeal lies."

The reasons for the amendment were elaborately explained by the mover of the Bill1, but we need not quote them in full.

1. Rajya Sabha Debates, 3rd September, 1963, columns 185 to 187.

31.64. Amendment recommended.-

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 appeal could test the conviction and get rid of the odium which would otherwise attach to them. We think that the principle of the amendment is eminently sound, and recommend that the law should be amended accordingly. We would, however, give the right to continue the appeal not to an "aggrieved person" (as was proposed in the amendment), but to near relatives, viz. the parents, spouse, children, brother and sister of the deceased appellant.

We would also provide a tim.-limit within which the near relative should seek the leave of the appellate court to continue the appeal. The new section1 recommended by us as to appeal by the Government for enhancement of sentence may also be included in the proposed amendment. Reference to section 411(2) may be omitted, as it is unnecessary now.2

Section 431 may, in the light of the discussion above, be amended to read as follows.-

"431. Abatement of appeals.- (1) Every appeal under.......section 417 or section 417A shall finally abate on the death of the accused

(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant:

Provided that where the appeal is against a conviction and sentence 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.

Explanatio.-In this section, "near relative" means a parent, spouse, lineal descendent, brother or sister.".

1. Section 417A.

2. See para. 31.10 above.

31.65. Appeals to the Supreme Court under Article 134 of the Constitution.-

Before finishing with this Chapter on appeals, we have to consider a suggestion with reference to Article 134(1)(a) of the Constitution. This provides that an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death. In a Private Member's Bill1 recently introduced in Parliament, it is proposed that this very limited jurisdiction of the Supreme Court should be enlarged to cover cases where the High Court has, after reversing an order of acquittal, sentenced a person to imprisonment for life or for ten years or more. This Bill also proposes an identical enlargement of the appellate jurisdiction of the Supreme Court under Article 134(1)(b).

1. Bill No. 81 of 1968 by Shri Anand Narain Mulla, M.P.

31.66. Constituent Assembly Debates on Article 134.-

A study of the Constituent Assembly Debates on Article 134 of the Constitution shows that initially the idea of the Constitutio.-makers was not to confer on the Supreme Court any right of appeal in criminal matters except by special leave. The Supreme Court was to have only the jurisdiction which the Privy Council used to have in criminal matters, namely, to intervene when it felt there was a miscarriage of justice, and to exercise this jurisdiction on the basis of a special leave to appeal.

Subsequently, two exceptions were made and incorporated in su.-clauses (a) and (b) of clause (1) of the article. Though a number of suggestions were made that the Supreme Court should have a considerable appellate jurisdiction over the High Courts in criminal matters, they were all turned down by the Constituent Assembly. It decided to leave any such proposal to Parliament to consider in due course and, if necessary, to legislate under clause (2) of the article.

31.67. Commission's view on proposed enlargement of Supreme Court's jurisdiction.-

The High Court has thus been made the final court in criminal matters subject to two very limited exceptions. The first is that if the High Court on appeal reverses an order of acquittal of an accused person and sentences him to death, he has a right of appeal to the Supreme Court. The obvious intention is to restrict such appeals broadly to capital offence cases. Even where the man has been acquitted by the trial court of a capital offence and on appeal the High Court finds him guilty but sentences him to imprisonment for life instead of death, Article 134(1)(a) does not give him a right of appeal.

We feel that this further limitation is too stringent and not easily justifiable and that the convicted person sought to have a right of appeal in such cases. It has to be remembered that their number is bound to be much larger than the number of cases in which the death sentence is passed by the High Court after setting aside an order of acquittal by the Court of Session.

We, however, do not think it would be wise to extend further this right of appeal to cases where the High Court after reversing an order of acquittal sentences the accused person to imprisonment for ten years or a longer period. Offences for which the law prescribes a punishment of ten years' imprisonment or more are quite numerous, and if the proposal in the Bill is to be accepted, it will certainly lead to a large increase in the number of appeals .to the Supreme Court making it, more or less, an ordinary court of second appeal in criminal matters.

In our opinion, the High Courts' position as the final court in all criminal matters, subject to appeal only in exceptional circumstances should be maintained. We may mention here that in an earlier Report1 the Law Commission did not agree with a proposal to extend the appellate jurisdiction of the Supreme Court to all cases where the death sentence had been awarded and confirmed by the High Court. They stated that "for over a century such cases have been dealt with by the High Courts subject to the superintendence of the Privy Council under its special leave jurisdiction and there is no reason why the High Court should not continue to deal with such cases in the same manner."

31.68. New section proposed.-

We accordingly propose the following new sec tion.-

"417B. Where a High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to imprisonment for life, he may appeal to the Supreme Court."

31.69. Jurisdiction under Article 134(1)(b).-

Cases of the type mentioned in Article 134(1)(b) are of such rare and infrequent occurrence that, apart from principle, it will not make any material difference whether its scope is widened to include cases where the High Court sentences the accused to imprisonment for life or for a long term or even for a short period. We have, therefore, recommended above that any person convicted in a trial held by a High Court may appeal to the Supreme Court unless the sentence passed by the High Court is one of imprisonment for a term not exceeding six months or of fine not exceeding one thousand rupees.1

1. See paras. 31.10 and 31.12 above.

Code of Criminal Procedure, 1898 Back

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