The main legal point established in the judgment is that where the sentence is a composite one including fine along with imprisonment, the appeal would not abate under Section 394 of CrPC.

ORDER

1. Heard on application for abatement of appeal under Section 394 of CrPC filed by the respondent.

2. Learned Senior Counsel appearing for respondent would argue that the appeal was preferred by the deceased appellant-Deep Chand who died on 05.08.2010. It is argued that after death, the appeal would abate as the deceased was convicted and sentence of imprisonment was imposed on him. Even if it is a composite sentence of fine and imprisonment, imprisonment being the main component of the sentence, the appeal would abate.

3. On the other hand, learned counsel for the appellant relying upon the recent judgment of the Supreme Court in the case of Ramesan (Dead) Thro' LR's. Girija A. Vs. State of Kerela [2020 Cr.L.R. (SC) 173] would submit that where the sentenceis composite one, not only being of imprisonment but also a fine, the appeal would not abate under the provisions of law.

4. After hearing the learned counsel for the parties, in our considered opinion, where sentence is a composite one including imprisonment as well as fine, the appeal would not abate under Section 394 of CrPC. In the case of State Rep. by The Inspector of Police (supra), their Lordships in the Supreme Court, relying upon earlier decisions in the cases of Bondada Gajapathi Rao Vs. State of Andhra Pradesh, AIR 1964 SC 1645, Harnam Singh Vs. State of Himachal Pradesh, (1975) 3 SCC 343 and Lakshmi Shanker Srivastava Vs. State, (1979) 1 SCC 229, have categorically held that in case of composite sentence comprising of imprisonment and fine, there will be no abatement of appeal. In para 16 of the aforesaid judgment, it was held as below:-

"16. The above judgment categorically laid down that even if sentence of fine is imposed alongwith the sentence of imprisonment under Section 431, such appeal shall not abate. The similar expression, which was used in Section 431, i.e., "except an appeal from the sentence of fine" has been used in Section 394 Cr.P.C. Thus, the appeal in the present case where accused was sentence for imprisonment as well as for fine has to be treated as an appeal against fine and was not to abate and High Court did not commit any error in deciding the appeal on merits."

5. The principle applied in the aforesaid decision is that where along with imprisonment fine is imposed, if the appeal is allowed to be abated upon death, the right to property of the legal heir of the deceased may be adversely affected in the event the fine amount is sought to be recovered by attachment and sale of the property in the hands of the legal representatives.

6. In view of the above enunciation of law, it is well settled legal position that the appeal in such cases where sentence is a composite one including fine along with imprisonment, the appeal would not abate.

7. The other submission of the learned counsel for the respondent that even if the appeal does not abate, yet if the application for substitution of LR's is not filed within a reasonable period of 30 days as provided in the proviso to Sub-section(2) of Section 394, the appeal would otherwise abate, cannot be accepted because abatement can take place only by operation of law as provided in Section 394 and not otherwise.

8. Proviso to Sub-section (2) of Section 394 is applicable only in a case where the appeal is against a conviction and sentence of death or of imprisonment and the appellant dies during the pendency of the appeal. In such a case, if any of his near relatives had applied to the Appellate Court for leave to continue the appeal within 30 days, the consequence otherwise flowing under Subsection (2) is not attracted and the appeal does not abate. However, the provision of abatement itself are not applicable in case of composite sentence of imprisonment and fine and it cannot be said that even though appeal would not abate under Section 394 of Cr.P.C. yet if the near relatives does not file application for leave to continue within 30 days, the appeal would abate. This argument of learned senior coun