Appeals against sentences do not automatically abate upon the appellant's death if relatives do not contest the case, allowing appeals to be dismissed as abated.

JUDGMENT :

GOPINATH P., J.

Crl. Appeal No. 260/2016 arises from SC No.570/2009 on the file of the Additional Sessions Judge-III, Pathanamthitta. The trial court by judgment dated 02.12.2015 convicted the appellant/1^st accused for an offence under Section 379 of the Indian Penal Code and sentenced to undergo imprisonment for a period of two years and fine of Rs.5000/-. In default of payment of fine, the appellant/1^st accused was to undergo simple imprisonment for a further period of three months.

2. Smt. Vidya G, the learned counsel appearing for the appellant, submits that the appellant is no more and he expired on 08.10.2024. A copy of the Death Certificate issued by the Registrar of Births and Deaths, Erathu Grama Panchayat, is also placed before me. The learned counsel submits that the near relatives are not interested in prosecuting the appeal, as the fine amount has already been remitted.

3. In Pazhani v. State of Kerala, 2017 (1) KLT 341 (F.B.), a Full Bench of this court examined the question of whether an appeal against conviction and sentence (including a fine) will abate upon the death of the appellant if no near relatives come forward to prosecute the appeal. The court ruled that the case will be consigned to the record, and the near relatives of the deceased appellant may file an application to revive the appeal.

4. In this case, the court is tasked with determining whether, given that the near relatives of the deceased appellant are not interested in pursuing this appeal, the matter should be consigned to the records, or whether it should proceed to adjudicate the appeal on the merits, or whether the appeal could be dismissed as abated. Incidentally, it is also to be seen whether the Full Bench decision in Pazhani (supra) is good law in the light of the decision of the Supreme Court in Ramesan (dead) through legal representative v. State of Kerala, (2020) 3 SCC 45

5. Section 394 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.P.C.’) and Section 435 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘the BNSS ’) deal with the issue of abatement of appeals. The provisions are in pari materia and read thus:-

Cr.P.C - S. 394 - 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.”

BNSS - S. 435 - Abatement of appeals

“(1) Every appeal under section 418 or section 419 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,