P.D. Rajan, J.

1. Can an appeal under S. 374 Cr.P.C. be continued after the death of the accused? This important question is raised in this appeal since Cheruvayi Mukundan, the accused in S.C. No. 541 of 2001 was convicted by the Sessions Court, Thalassery for the offences punishable under S. 8(2) of the Abkari Act. The charge against the accused is that on 18.08.1998 at 6.10 p.m., he was found with 10 litres of arrack on the side of the road at Cheruvanchery Amsom, Puvathur desom by the Excise Inspector, Kuthuparamba. He was arrested and the contraband articles were seized after preparing a mahazar, thereafter registered a crime. After completing investigation, the Excise Inspector, Kuthuparamba laid charge against the accused before the Judicial First Class Magistrate Court, Kuthuparamba. From there, the case was committed to Sessions Court, Thalassery and subsequently, it was made over to Additional Sessions Court (Adhoc-III), Thalassery.

2. In the trial court, prosecution examined P.W. 1 to P.W. 3 and marked Exts. P1 to P8. MO1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him under S. 313 of the Code of Criminal Procedure. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the accused under S. 8(2) of the Kerala Abkari Act and sentenced him to undergo rigorous imprisonment for one year and fine of Rs. 1,00,000/- (Rupees one lakh only) in default to undergo simple imprisonment for six months. Being aggrieved by that he preferred this appeal.

3. During the pendency of this appeal, on 08.11.2009 the appellant died. In the circumstances this court obtained a report from the Excise Inspector, Kuthuparamba. Along with the report, the Excise Inspector produced the death certificate of the appellant issued from the Registrar of Births and Deaths, Pattiam Grama Panchayat, which is marked as Ext. C1. Subsequently, wife of the appellant was impleaded as the 2nd appellant vide order dated 30.03.2016 in Crl. M.A. No. 1739 of 2016. The principal point raised in support of the appeal is that after the death of the accused whether any abatement for the sentence of fine. On this question the common law maxim "actio personalis moritur cum persona" is of little use and answer to the question must be found in other provision of law.

4. The Criminal Procedure Code S. 394 says about abatement of appeals which reads as follows:

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.

A reading of S. 394(2) says that every appeal against conviction shall abate on the death of the accused except an appeal from a sentence of fine. This section provides that an appeal from sentence of fine does not abate on the death of the appellant and the further proviso to the section enables any of the near relatives to obtain leave to continue the appeal. The 2nd proviso to Section 394(2) says that where the appeal is against the conviction and sentence of death or 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. The "near relative" means a parent, spouse, lineal descendant,