K.T. Sankaran. J.

1. The appellant was convicted under Section 302 of the Indian Penal Code and he was sentenced to undergo imprisonment for life and to pay a fine of Rupees ten thousand and in default, to undergo rigorous imprisonment for one year. The appellant died on 27.7.2011 pending the appeal before this Court. No application has been filed by any of the near relatives of the appellant seeking leave to continue to prosecute the Criminal Appeal.

2. The learned Public Prosecutor as well as the learned counsel for the appellant brought to our notice that in view of the decision in Suo Motu v. M.P.Ismail and another (2014 (2) KHC 82), it is doubtful whether the Criminal Appeal can be dismissed on the ground that the appellant is dead and that no near relative has come forward to prosecute the appeal. In Suo Motu v. M.P.Ismail and another (2014 (2) KHC 82), two sentences occurring in paragraph 8 of the judgment caused the suspicion whether the appeal has to be disposed of on the merits. Those sentences read as follows:

"Without a finding in favour of the prosecution, the amount of fine cannot be realised under the law, though the sentence of imprisonment may not be enforceable. Only if the Appellate Court comes to a finding in favour of the prosecution upholding the conviction, the amount of fine can be realised from the estate of the deceased, though the jail sentence cannot be enforced."

It is also submitted that the aforesaid two sentences are contrary to the view expressed by a Division Bench of this Court (K.T. Sankaran & M.L. Joseph Francis, JJ) in Pradeep v. State of Kerala (2013 KHC 717).

2. In view of the submission made by the learned Public Prosecutor as well as the learned counsel for the appellant, it would be only proper to decide the following questions: (1) In the absence of any near relative coming forward to prosecute the appeal, whether it is mandatory that the Appellate Court should dispose of the appeal on the merits; and (2) Whether in such circumstances, the fine can be realised after the death of the appellant/accused, under Section 70 of the Indian Penal Code in the absence of a finding of guilt by the Appellate Court.

3. In the Code of Criminal Procedure, 1898, Section 431 dealt with the provision on the subject. Section 431 of the 1898 Code was to the following effect:

"431. Abatement of appeals. 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."

4. In the Code of Criminal Procedure 1973, the old Section 431 was bifurcated into sub-sections (1) and (2) of Section 394 and a proviso and explanation were added. Section 394 of the 1973 Code reads 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."

5. In Bondada Gajapathi Rao v. State of Andhra Pradesh (AIR 1964 SC 1645), the Supreme Court held, interpreting Section 431 of the Code of Criminal Procedure 1898, that 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,