Judgment

CHANDRACHUD, J. :- This appeal by special leave is directed against a judgment dated January 7, 1970 of the Delhi High Court (Himachal Bench, Shimla). The appellant Harnam Singh having died during the pendency of the appeal, this Court by an order dated February 26, 1973 allowed his widow to be substituted in his place as his legal representative.

2. There is nothing new in the story of bribe taking which forms the theme of this appeal, except perhaps the way the High Court heard the story and drew a moral. In September, l967 Harnam Singh was working as a Patwari in Halqa Pali. On the 19th of that month Nitya Nand asked for copies of the revenue record. Harnam Singh said that the copies will not be supplied unless a hush-payment of Rs.30/- was made. Nitya Nand borrowed Rs. 30/- from a friend Chet Ram and on the 20th he lodged his complaint with the Anti-Corruption Department. Sub-Inspector Kewal Ram obtained permission from a Mandi Magistrate to investigate the offence and laid the trap. The raiding party went to Harnam Singh s office where Nitya Nand is alleged to have given the marked currency notes of Rupees 30/- to Harnam Singh.

3. The Special Judge Mandi, Kulu and Lahaul Spiti Districts, rejected the defence of Harnam Singh that the sum of Rs. 30/- was not found from his person but was found from a residential room where it was planted by the complainant Nitya Nand. The learned Judge convicted Harnam Singh under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act as also under Section 161 of the Penal Code, and sentenced him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 300. The High Court of Delhi confirmed the conviction but reduced the substantive sentence to one year.

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

5. On the other hand, Mr. Wad who has usefully assisted us as an Amicus Curiae contends that Section 431 of the Code of Criminal Procedure, 1898 which deals with "Abatement of Appeals" has no application to appeals filed in the SC; that such appeals ought in the matter of abatement be governed by principles of justice and equity; that even on the assumption that Section 431 applies, the appellant having been sentenced to pay a fine, the appeal cannot abate; and that if the sentence of fine cannot be sustained on the ground that the conviction itself is bad, the order of conviction must also go.

6. These contentions require an examination of Section 431 of the Code which reads thus:

"431. Every appeal under S. 411-A, sub-section (2), or S. 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."

7. The appeal before us was filed by special leave granted under Art. 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