IMPORTANT POINTS
In the case of an appeal from a sentence of fine, there is no abatement of appeal on the death of the accused- Prosecution of the appeal can then be continued by the near relatives of the deceased appellant- If nobody comes forward to continue to prosecute the appeal, the appeal can be closed as abated. However, that abatement can be set aside at the instance of the near relatives of the deceased appellant, though no specific provision has been made for the same in the Code. The inherent powers of the Court can be exercised in such a situation. There is no time limit fixed for filing an application by the near relatives to come on record.

The appellant is the accused. The appeal was filed by him assailing the verdict of guilty, conviction and sentence in a prosecution for the offences punishable under Sections 8(1) read with 8(2) and 55(g) of the Abkari Act, 1077.

2. The trial court found the appellant/accused guilty of the offences punishable under Sections 8(1) read with 8(2) and 55(g) of the Abkari Act and convicted him and sentenced him to simple imprisonment for a period of three years and to pay a fine of Rs.1,00,000/-and in default of payment of fine to undergo simple imprisonment for a period of one year for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. He was also sentenced to undergo simple imprisonment for a period of five years and to pay a fine of Rs.1,00,000/-and in default of payment of fine to undergo simple imprisonment for a period of one year for the offence under Section 55(g) of the Abkari Act. It was also ordered that the sentences shall run consecutively.

3. When the appeal was taken up for hearing, learned Public Prosecutor submitted that the appellant/accused is no more. Learned Public Prosecutor produced a copy of the death certificate of the appellant for perusal. It shows that the appellant died on 03.12.2013. This fact is not disputed by the learned counsel who had filed vakkalath for the appellant.

4. Section 394 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') deals with abatement of appeals. Section 394(1) of the Code provides that every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. Section 394 (2) of the Code states that every other appeal under Chapter XXIX (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. The proviso to Section 394 states 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.

5. This is an appeal filed under Section 374(2) of the Code. None of the near relatives of the appellant has filed any application to continue the prosecution of the appeal. Therefore, the question arises whether the appeal is abated or not.

6. If by the judgment under appeal a sentence of fine is imposed either singularly or in conjunction with a sentence of imprisonment, the appeal against conviction would be an appeal from a sentence of fine within the meaning of Section 394 of the Code (Section 431 of the Code of Criminal Procedure, 1898). All that is necessary is that a sentence of fine should have been imposed on the accused and the appeal filed by him should involve the consideration of the validity of that sentence (See Harnam Singh v. State of Himachal Pradesh : AIR 1975 SC 236).

7. In the light of the dictum laid down in Harnam Singh (supra), the present appeal shall be considered as an appeal from a sentence of fine within the meaning of Section 394(2) of the Code.

8. In Pazhani v. State of Kerala (2017 (1) KHC 173: 2017 (1) KLT 341), a Full Bench of this Court has considered the question whether an appeal against conviction and sentence of imprisonment as well as fine would abate on the death of the appellant/accused, if no relative of the appellant comes forward to continue to prosecute the appeal. The Full Bench has held that in the case of an appeal from a sentence of fine, there is no abatement of appeal on the death of the accused. Prosecution of the appeal can then be continued by the near relatives of the deceased appellant. If nobody comes forward to continue to prosecute the appeal, the appeal can be closed as abated. However, that abatement can be set aside at the instance of the near relatives of the deceased appellant, though no specific provision has been made for the same in the Code. T