REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 473 OF 1998

Shri Shankar Prasad Ghosh (Dead) …

Appellant

Versus

The State of Bihar & Anr. …

Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J

1.One Shankar Prasad Ghosh had filed the present appeal

before this Court questioning correctness of the judgment

rendered by a learned Single Judge of the Patna High Court.

By a common judgment the learned Special Judge (CBI),

South Bihar, Patna had found each of the accused persons

guilty of offence punishable under Sections 409, 477A read

with Section 34, 467 and 471 of the Indian Penal Code, 1860

(in short the ‘IPC’). It also found the accused guilty of offence

punishable under Section 5(2) read with Section 4(1)(c) and

Section 5(1)(d) of the Prevention of Corruption Act, 1947 (in

short the ‘Act’). Various custodial sentences and fine were

imposed. The judgment of the Special Judge was assailed in

appeal before the High Court which dismissed the appeal.

The High Court upheld the conviction but altered the

sentences to the period already undergone. The fine amount

was, however, maintained alongwith default stipulation.

2.In this case leave was granted on 20.4.1998 but no stay

was granted. During the pendency of the appeal, appellant-

Shankar Prasad Ghosh died on 15.5.2000. After about 5 years

applications have been filed purportedly in terms of Section

394 (2) of the Code of Criminal Procedure, 1973 (in short the

‘Code’) to bring on record the legal heirs of the deceased

appellant for the purpose of continuance of the appeal. On

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15.3.2007 it was directed that the applications shall be

considered when the appeal will be taken up for hearing.

3.Learned counsel for the respondent-State submitted that

there is no scope for accepting the applications. Section 394

has no application to the appeal before the Supreme Court. In

any event, time statutorily prescribed is 30 days. In the

instant case, applications have been filed nearly 5 years after

the date of the death of the appellant-Shankar Prasad Ghosh.

Even no explanation has been offered as to why the

applications were filed after such a long time. Accordingly, he

submitted that there is no scope for condoning any delay

beyond the fixed 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:

“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

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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

is possible for the purpose of

continuance.

(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.

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(4)But where the sentence is not one of

fine but of imprisonment, which on the

death of the accused becomes

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).

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:

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“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.”

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

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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.

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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

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

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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 applications were filed after about 5

years. We need not go into the question as to whether there is

scope for condonation of delay as no explanation has been

offered for the delayed presentation. In that view of the

matter, the observations of this Court in Kameswar Rao’s case

(supra) are clearly applicable. The appeal has abated on the

death of the appellant-Shankar Prasad Ghosh and is disposed

of accordingly.

………………………….J.

(Dr. ARIJIT PASAYAT)

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………………………….J.

(P.P. NAOLEKAR)

New Delhi,

June 13, 2008

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