An appeal abates on the death of the appellant unless the legal representatives have a direct interest in the appeal.

Judgment

SARKAR, J. : This is an appeal from the sentence of imprisonment for life imposed on the appellant upon his conviction for the offence of the murder of his wife. The appeal was filed with the special leave of this Court granted under Art. 136 of the Constitution but the appellant died pending the appeal. His legal representatives now seek leave to continue the appeal.

2. There would seem to be authority for the proposition that revision petitions and some appeals from sentences of fine might be continued by his legal representatives on the death of the accused pending the proceeding : see S. 431 of the Code of Criminal Procedure and Pranab Kumar Mitra v. State of West Bengal (1959) Supp (1) SCR 63. It appears that in England appeals from similar sentence are permitted to be continued by the executors of the deceased appellant : see Hodgson v. Lakeman, 1943-1 KB 15. It is true that neither S. 431 nor the cases mentioned can be said to apply to the present case proprio vigore, for the present is not an appeal under the Code which is dealt with by S. 431 nor is it a revisional application like the one which came up for consideration in Pranab Kumar Mitra s case, (1959) Supp (1) SCR 63, while as for the English case, it is only of persuasive value. All the same however I think it must now be held that appeals from sentences of fine may be permitted to be continued by the legal representatives of the deceased appellant. First, I find no provision making such appeals abate. If they can be continued when arising under the 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. It is true that the Code of Criminal Procedure which creates revisional powers of a Court provides that such powers may be exercised suo motu but it does not seem to me that Pranab Kumar Mitra s case, (1959) Supp (1) SCR 63 was based on this for on that ground all revision cases should have been permitted to be continued and the permission should not have been confined to cases of fine. Indeed in that case this Court proceeded on the basis that there was no statutory provision applying to the case. It observed.

"even in the absence of any statutory provisions, we have held, .......... 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 property of the deceased in the hands of his legal representatives".

A sentence of fine affects property equally when the case is taken further up in appeal or in revision. If it is just and proper to continue the hearing in one case after the death of the accused, it would be equally so in the other case.

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.

4. A sentence of fine no doubt affects the property. In the present case, however, the sentence was not of fine but of imprisonment which on the death of the accused has become infructuous. There is no one now who can be imprisoned. It is, however, said that though that sentence can no longer be executed, it still affects the property of the deceased and the legal representatives are, therefore, interested in the appeal and should be permitted to continue it. The matter is put in this way. The appellant who held a high office in the Government of Andhra Pradesh had been suspended during the investigation of the charge against him and he was dismissed from service under certain service rules on his conviction. During this tim