K.T. Sankaran, J.

1. A learned single Judge referred these cases for consideration by a Division Bench. When the matter came up before the Division Bench, it was felt that the matter should be considered by a Full Bench. Accordingly, the cases were referred to the Full Bench.

2. The question referred to the Division Bench by the learned single Judge was:

"Whether an appeal from a sentence of fine would abate if no relative of the appellant comes forward to continue to prosecute the appeal?"

3. The learned single Judge doubted the correctness of the decision in Raveendran v. State of Kerala (2015(1) R.C.R.(Criminal) 642 : 2014 (4) KLT 382).

4. In Pradeep v. State of Kerala (2013 KHC 717), interpreting Section 394(2) of the Code of Criminal Procedure, a Division Bench of this Court (in which Justice K.T. Sankaran was a member) held thus:

"That the appeal will not abate in the case of an appeal from a sentence of fine does not mean that the appeal cannot be disposed of without bringing on record the near relatives of the appellant. It only means that the near relatives of the appellant can continue to prosecute the appeal on getting leave from Court."

5. Later, a learned single Judge of this Court, without referring to the Division Bench decision in Pradeep v. State of Kerala (2013 KHC 717), held, in Suo Motu v. M.P. Ismail & another (2014 (2) KLT 290), thus:

"6. The law under Section 394, Cr.P.C., insists on disposal of appeal against sentence of fine on merits, because the estate of the deceased will be affected by such a sentence. The provision, that appeal involving a sentence of fine alone shall not abate on the death of the appellant, will protect the interest of the estate of the deceased. But in the case of jail sentence, the sentence becomes unenforceable on the death of the appellant, and the appeal can proceed only if the near relatives or near legal heirs so want to have the stigma of conviction erased.

7. In a case of conviction involving composite sentence of jail and fine also, the estate of the deceased is involved because the amount of fine can well be realised from the estate of the deceased as provided under the provisions of the Cr.P.C. In such a situation, the appeal will have to be heard and disposed of by the Appellate Court, on merits, because the amount of fine cannot be recovered under the provisions of the Code of Criminal Procedure without a finding in appeal in favour of the prosecution.

8. In the above circumstances, the only finding possible on the question of law is that an appeal involving composite sentence of jail and fine will not abate on the death of the appellant. In the interest of the estate of the deceased- appellant, the Appellate Court will have to hear the appeal and dispose of it on merits. 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."

6. Another Division Bench in Raveendran v. State of Kerala (2014 (4) KLT 382) (in which Justice K.T. Sankaran was a member), after referring to Pradeep v. State of Kerala (2013 KHC 717), Suo Motu v. M.P. Ismail & another (2014 (2) KLT 290) and certain other decisions, held thus:

"11. Under the Code of Criminal Procedure, 1898, the near relatives of an accused could not continue to prosecute the appeal filed by the accused against sentence of imprisonment alone. An amendment to Section 431 of the Code of Criminal Procedure, 1973 was suggested in the Bill introduced in the Parliament by a private member. The object of the amendment was to provide a machinery whereby the children or members of the family of a convicted person who died during the pendency of the appeal, could challenge the conviction and get rid of the stigma attached