REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 77 of 2020

(@ SLP (Crl.)…… Diary No.40131/2017)

RAMESAN (DEAD)

THROUGH LR. GIRIJA A ...APPELLANT(S)

VERSUS

THE STATE OF KERALA ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN,J.

This appeal has been filed against the judgment

of the High Court of Kerala dated 06.03.2014 by which

Criminal Appeal of the appellant has been dismissed.

2.Brief facts of the case giving rise to this

appeal are:-

2.1A First Information Report was registered

against Ramesan under Sections 55 (a) and

(g) of the Kerala Abkari Act [1 of 1077

(ME)]. Charge under Sections 55(a) and

(g) of the Kerala Abkari Act was framed.

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Prosecution led oral and documentary

evidence to prove the charge. Statement

of Ramesan was also recorded under

Section 313 of Cr.P.C., who completely

denied the incident and charge.

2.2Additional Session Judge vide its order

dated 20.12.2006 convicted the first

accused Ramesan under Section 55(a) and

imposed imprisonment for a period of two

years and a fine of Rs. One Lakh. The

accused was also convicted and sentenced

under Section 55(g) of the same

punishment of imprisonment of two years

and fine of Rs. One Lakh. In default of

payment of fine amount, accused was to

undergo simple imprisonment for six

months each under Sections 55(a) and (g)

of the Abkari Act.

2.3An appeal was filed by the first accused

Ramesan in the High Court being Criminal

Appeal No. 254 of 2007 on 06.02.2007.

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After filing of the appeal, the appellant

Ramesan died on 21.12.2007. The High

Court noticed the factum of death of the

appellant on 21.12.2007, however,

proceeded to decide the appeal on merits

referring to the principle under Section

394 Cr.P.C. The High Court after

considering the evidence on record upheld

the conviction. The High Court took the

view that since the appellant died

pending the appeal, the sentence of

imprisonment has become unworkable,

however, regarding the imposition of

fine, there is no reason to hold that

Court below committed any mistake and the

appeal was consequently dismissed. This

appeal has been filed by Girija A., the

legal heir of Ramesan (deceased).

3.Learned counsel for the appellant contended that

in view of the death of the accused on 21.12.2007,

the High Court ought to have abated the entire

appeal. It is submitted that Section 394 of Cr.P.C.

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saves the appeal, which arises against sentence of

fine only. When there was composite sentence of

imprisonment as well as fine, the appeal has to abate

both against the sentence of imprisonment as well as

fine. It is contended that High Court committed

error in proceeding to decide the appeal on merits.

High Court ought to have abated the appeal in toto.

4.Learned counsel for the State refuting the

submission contends that there being sentence of fine

also, the appeal has rightly been decided on merits

by the High Court. The sentence of fine or composite

sentence of imprisonment and fine, is also a sentence

of fine.

5.We have considered the submissions of the learned

counsel for the parties and have perused the records.

6.The only question to be decided in this appeal is

as to whether in the facts of the present case, the

accused who was sentenced for imprisonment as well as

for fine, the High Court committed an error in not

abating the appeal in toto.

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7.Section 394 Cr.P.C. deals with abatement of

appeals. Section 394 is as follows:-

“394. Abatement of appeals.

(1) Every appeal under section 377 or

section 378 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 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.

Explanation.- In this section," near

relative" means a parent, spouse, lineal

descendant, brother or sister.”

8.Even in Cr.P.C., 1898, there was a provision

pertaining to abatement of the appeal, which was to

the following effect:-

“431. Every appeal under Section 411-A,

sub-section (2), or Section 417 shall

finally abate on the death of the accused,

and every other appeal under this Chapter

(except an appeal from a sentence of fine)

shall finally abate on the death of the

appellant.”

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9.Both under the Old Code as well as under the

present Code of Criminal Procedure, it is provided

that the appeal against a sentence of fine shall not

abate.

10.The fine as per the provisions of Code of

Criminal Procedure is recoverable from movable and

immovable properties of the accused, Section 421

Cr.P.C. provided as follows:-

“421. Warrant for levy of fine. -- (1) When

an offender has been sentenced to pay a

fine, the Court passing the sentence may

take action for the recovery of the fine

in either or both of the following ways,

that is to say, it may-

(a) issue a warrant for the levy of

the amount by attachment and sale

of any movable property belonging

to the offender;

(b) issue a warrant to the Collector

of the district, authorising him

to realise the amount as arrears

of land revenue from the movable

or immovable property, or both, of

the defaulter:

Provided that, if the sentence directs

that in default of payment of the fine,

the offender shall be imprisoned, and if

such offender has undergone the whole of

such imprisonment in default, no Court

shall issue such warrant unless, for

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special reasons to be recorded in writing,

it considers it necessary so to do, or

unless it has made an order for the

payment of expenses or compensation out of

the fine under section 357.

(2) The State Government may make

rules regulating the manner in which

warrants under clause (a) of sub- section

(1) are to be executed, and for the

summary determination of any claims made

by any person other than the offender in

respect of any property attached in

execution of such warrant.

(3) Where the Court issues a warrant

to the Collector under clause (b) of sub-

section (1), the Collector shall realise

the amount in accordance with the law

relating to recovery of arrears of land

revenue, as if such warrant were a

certificate issued under such law:

Provided that no such warrant shall be

executed by the arrest or detention in

prison of the offender.”

11.Section 70 of Indian Penal Code provides that any

part of fine which remains unpaid may be levied at

any time within six years after the passing of the

sentence. The provision further provides that the

death of offender does not discharge from the

liability any property which would, after his death,

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be legally liable for his debts. Section 70 of the

Indian Penal Code is as follows:-

“70. Fine leviable within six years, or

during imprisonment—Death not to discharge

property from liability. —The fine, or any

part thereof which remains unpaid, may be

levied at any time within six years after

the passing of the sentence, and if, under

the sentence, the offender be liable to

imprisonment for a longer period than six

years, then at any time previous to the

expiration of that period; and the death

of the offender does not discharge from

the liability any property which would,

after his death, be legally liable for his

debts.”

12.This Court had occasion to consider the

provisions of Sections 431 and 439 of Cr.P.C. 1898 in

Pranab Kumar Mitra Vs. State of West Bengal and

Another, AIR 1959 SC 144 . Section 439 provides for

revisional jurisdiction of the High Court. One of

the issues was as to whether Section 431 applies to

revisional application filed in the High Court. In

paragraph 7, this Court laid down following:-

“7. ……………………… In view of the fact that

even in the absence of any statutory

provisions, we have held, in agreement

with the decision aforesaid of the Bombay

High Court, 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

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property of the deceased in the hands of

his legal representative,………………………”

13.This Court in Bondada Gajapathi Rao Vs. State of

Andhra Pradesh, AIR 1964 SC 1645 had occasion to

consider Section 431 Cr.P.C. A special leave petition

was filed in this Court, the accused died during

pendency of special leave petition. This Court again

reiterated the principle on which hearing of a

proceeding may be continued after the death of an

accused. ;In paragraph 3 of the judgment, following

was laid down:-

“3. 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.”

14.This Court had occasion to consider the case of a

composite sentence of imprisonment as well as fine in

Harnam Singh Vs. The State of Himachal Pradesh,

(1975) 3 SCC 343. In the above case, the accused was

convicted under Sections 5(1)(d) and 5(2) of

Prevention of Corruption Act, 1947 as well as under

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Section 161 Indian Penal Code and he was sentenced

for rigorous imprisonment of two years and to a fine

of Rs.300. Contention was raised before this Court

that since the deceased 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. Such contention

was noted in paragraph 4 of the judgment, which is to

the following effect:-

“4. Learned Counsel for the State of

Himachal Pradesh, who are 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.”

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15.Rejecting the above submission, this Court laid

down that 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.

In paragraph 10, following was laid down:-

“10. 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

431 not an appeal from a sentence of fine.

It is true that an appeal from a composite

order of sentence is ordinarily directed

against both the substantive imprisonment

and the fine. But, such an appeal does not

for that reason cease to be an appeal from

a sentence of fine. It is something more

not less than an appeal from a sentence of

fine only and it is significant that the

parenthetical clause of Section 431 does

not contain the word “only”. To limit the

operation of the exception contained in

that clause so as to take away from its

purview appeals directed both against

imprisonment and fine is to read into the

clause the word “only” which is not there

and which, by no technique of

interpretation may be read there. The

plain meaning of Section 431 is that every

criminal appeal abates on the death of the

accused “except an appeal from a sentence

of fine”. The section for its application

requires that the appeal must be directed

to the sentence of fine and not that it

must be directed to that sentence only. If

by the judgment under appeal a sentence of

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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.”

16.The above judgment categorically laid down that

even if sentence of fine is imposed alongwith the

sentence of imprisonment under Section 431, such

appeal shall not abate. The similar expression,

which was used in Section 431, i.e., “except an

appeal from the sentence of fine” has been used in

Section 394 Cr.P.C. Thus, the appeal in the present

case where accused was sentenced for imprisonment as

well as for fine has to be treated as an appeal

against fine and was not to abate and High Court did

not commit any error in deciding the appeal on

merits.

17.This Court had occasion to consider Section 394

Cr.P.C. in Lakshmi Shanker Srivastava Vs. State

(Delhi Administration), (1979) 1 SCC 229. In the

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above case, the accused was sentenced to suffer

rigorous imprisonment for 18 months on each count and

a fine of Rs.200. The accused had died during

pendency of the appeal in this Court and argument was

raised that in view of the above, the appeal abates

and cannot be proceeded with. Such argument was

noticed in paragraph 4, which is to the following

effect:-

“4. Mr H.R. Khanna, learned Counsel who

appeared for the respondent raised a

preliminary objection. It was urged that

the appellant died during the pendency of

this appeal and, therefore, the appeal

abates and cannot be proceeded with.

Simultaneously it was urged that if the

appeal were not to abate on the only

ground that the appellant was also

sentenced to pay a fine of Rs 200 and,

therefore, it may be said that right to

property of the legal representatives may

be adversely affected and, therefore, they

would be entitled to continue the appeal,

the respondent State is prepared to

concede that the sentence of fine may be

set aside.”

18.In the above case, a leave was obtained under the

proviso to Section 394(2) by legal heirs to continue

the appeal. This Court had overruled the primary

objection that appeal should abate although relying

on the proviso to Section 394(2). The principle

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regarding non-abatement of the appeal from a sentence

of fine as contained in Section 431 of Cr.P.C., 1898

as well as Section 394 of present Cr.P.C. is the

same. A similar legislative scheme has been

contained, which was occurring in Section 431

Cr.P.C., 1898, hence, judgment of this Court

regarding interpretation of Section 431, Cr.P.C. as

has been done by this Court in Bondada Gajapathi Rao

(supra) and Harnam Singh (supra) shall squarely apply

to the interpretation of Section 394 Cr.P.C.

19.We, thus, conclude that the appeal filed by

accused Ramesan in the High Court was not to abate on

death of the accused. The High Court rightly did not

direct for abatement of appeal and proceeded to

consider the appeal on merits. The appeal before the

High Court being against sentence of fine was

required to be heard against the sentence of fine

despite death of accused-appellant.

20.Although, we have upheld the view of the High

Court that appeal filed by the accused was not to

abate and was required to be heard and decided on

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merits but there is one aspect of hearing of the

appeal before the High Court, which need to be noted.

From the judgment of the High Court, it does not

appear that after the death of the appellant-accused,

his legal heirs were given opportunity to proceed

with the appeal against the sentence of fine. The

judgment of the High Court does not also mention that

any counsel has appeared for the legal heirs. The

High Court ought to have given an opportunity to

legal heirs of the accused to make their submissions

against the sentence of fine, which fine could have

been very well recovered from the assets of the

accused in the hands of the legal heirs.

21.In above view of the matter, we are of the view

that ends of justice be served in reviving the

Criminal Appeal No. 254 of 2007 before the High Court

to give an opportunity to the legal heirs of the

accused to make their submissions against the

sentence of fine.

22.In result, the appeal is partly allowed. The

judgment of the High Court dated 06.03.2014 is set

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aside and Criminal Appeal No.254 of 2007 is revived

before the High Court to be heard afresh after giving

an opportunity to the legal heirs of the accused.

......................J.

( ASHOK BHUSHAN )

......................J.

( M.R. Shah )

New Delhi,

January 21, 2020.

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