The main legal point established in the judgment is that the appeal against a composite sentence of fine and imprisonment shall not abate on the death of the accused, and the court is bound to decide the appeal on merits, after giving sufficient opportunity to the near relatives of the appellant to proceed with the appeal against the sentence of fine.

JUDGMENT :

This appeal is directed against the judgment dated 26.9.2006 in S.C.No.117 of 2004 passed by the Additional Sessions Judge (Adhoc-I), Kalpetta. The appellant/accused was convicted under Section 55(a) of the Abkari Act and he was sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1,00,000/-.

2. The case of the prosecution is that on 9.8.2001 at 7.10 p.m. the accused was found in possession of 900 ml. of country made arrack in a plastic bottle near his residence at Karikanal.

3. After completing the investigation final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the Judicial First Class Magistrate-I, Mananthavady. The case was committed to the Sessions Court, Kalpetta from where it was made over to the trial Court. On the appearance of the accused charge was framed against him under Section 55(a) of the Abkari Act. He pleaded innocence. The trial Court after conclusion of the trial found that the accused is guilty of offence under Section 55(a) of the Abkari Act and was convicted and sentenced thereunder.

4. During the pendency of this appeal the appellant died. Notice was served on the legal heirs of the appellant so as to afford an opportunity to them to proceed with the appeal under the proviso to Section 394 Cr.P.C. None of the near relatives of the appellant turned up.

5. The learned counsel for the appellant contended that on the death of the appellant this Court has to direct for abatement of the appeal. The learned counsel for the appellant relying on the decision in Pazhani v. State of Kerala (2017 (1) KHC 173) further contended that this Court is not bound to decide the appeal on merits.

6. Per contra, the learned Public Prosecutor submitted that the sentence impugned, being a composite sentence of fine and imprisonment, the appeal shall not abate on the death of the accused. The learned Public Prosecutor further contended that this Court is bound to decide the appeal on merits. The learned Public Prosecutor relied on the decision in Ramesan v. State of Kerala [(2020) 3 SCC 45] to substantiate his contention.

7. I shall first consider the question as to whether, in the facts of this case, where the accused was sentenced for imprisonment as well as for fine, the appeal stands abated.

8. Abatement of appeal is dealt with in Section 394 of the Code of Criminal Procedure. Section 394 reads thus:-

“394. Abatement of appeals.—(1) Every other 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.”

Going by the mandate of Section 394 Cr.P.C., the appeal against a sentence of fine shall not abate on the death of the accused. Section 421 Cr.P.C. deals with the fine recoverable from movable and immovable properties of the accused. Section 421 Cr.P.C. reads thus:-

“421. Warrant for levy of fine.—(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may—

(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:

Provided that, if the sente