ORDER :

1. The appellant is the first accused in S.C.No.36/2005 on the file of the Sessions Court, Manjeri. The appeal has been filed by him assailing the verdict of guilty, conviction and sentence in a prosecution for the offence punishable under Section 489B IPC. The appellant has been convicted and sentenced to rigorous imprisonment for three years and to pay a fine of Rs.5000/- and in default of payment of fine to undergo simple imprisonment for six months. The second accused was found not guilty and hence acquitted.

2. When the appeal was taken up for hearing, it was submitted that the appellant/1st accused is no more. A copy of the death certificate of the appellant produced, shows that he died on 26/12/2014. The question is, has the appeal abated on the death of the sole appellant ?

3. Section 394 of the Code of Criminal Procedure, 1973 (Cr.P.C.) deals with abatement of appeals. Sub-section (1) to Section 394 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.

4. As noticed earlier, the present appeal is from a composite order of sentence combining substantive imprisonment with fine. By virtue of Subsection (2) to Section 394 Cr.P.C., the appeal on the death of the appellant/first accused will abate so far as the sentence of imprisonment is concerned. However, the provision also makes it clear that all appeals under Chapter XXIX except an appeal from a sentence of fine, shall abate on the death of the appellant. Thus the present appeal, an appeal against fine, cannot be treated as abated (See Ramesan (dead) through Legal representative v. State of Kerala, (2020) 3 SCC 45).

5. The case on hand is an appeal filed under Section 374(2) of the Code. None of the near relatives of the appellant has filed any application seeking permission to prosecute the appeal. Therefore, the question is – what is the procedure to be followed in such cases. Reference has been made to the decision in Pazhani v. State of Kerala, 2017(1) KHC 173, wherein a Full Bench of this Court has considered the question whether an appeal against conviction and sentence of imprisonment as well as fine on the date of the death of the appellant/accused, would abate if no relative of the appellant comes forward to continue to prosecute the appeal. It has been 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 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 court. 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 Full Bench further held that since the proviso to sub-section (2) of Section 394 provides for a period of 30 days in filing an application for leave to continue the appeal, the period for filing an application to come on record in an appeal from a sentence or fine, can also be taken as 30 days. It has further been held that, if the near relatives do not file an application to come on record within a period of 30 days, the court shall consign the appeal to the record room. I