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1981 Supreme(Ori) 159
IN THE HIGH COURT OF ORISSA
J.K. Mohanty, J.
KIRODIMAL AGARWAL - APPELLANT
Versus
STATE OF ORISSA - RESPONDENT
Criminal Revision No. 440 of 1980
Decided On : 21-12-1981
B.K. Biswal, for the Appellant; Standing Counsel, for the Respondent
The High Court has the power to examine the correctness of a conviction and sentence in a revision petition, even after the death of the petitioner.
Headnote:
CRIMINAL REVISION - ABATEMENT OF PROCEEDINGS - DEATH OF ACCUSED - REVISION APPLICATION - MAINTAINABILITY - POWER OF HIGH COURT TO EXAMINE CORRECTNESS OF CONVICTION AND SENTENCE - ESSENTIAL COMMODITIES ACT, 1955 - SECTION 7 - ORISSA DECLARATION OF STOCKS AND PRICES OF ESSENTIAL COMMODITIES ORDER, 1973 - CLAUSE 3 - CONVICTION FOR CONTRAVENTION - LEGALITY - EVIDENCE - APPRECIATION.
Fact of the Case:
Petitioner, a shopkeeper, was convicted under Section 7 of the Essential Commodities Act, 1955, for contravening Clause 3 of the Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973. He was sentenced to six months' imprisonment and a fine of Rs. 500, or two months' additional imprisonment in default. On appeal, the conviction was upheld, but the sentence was reduced to three months' imprisonment and a fine of Rs. 500, or two months' additional imprisonment in default. The petitioner died during the pendency of the revision petition before the High Court.
Finding of the Court:
The High Court held that it had the power to examine the correctness of the conviction and sentence, notwithstanding the death of the petitioner, as the revisional jurisdiction of the High Court was not subject to the same limitations as the appellate jurisdiction. The Court found that the petitioner had failed to provide any evidence to support his plea that he had made the necessary entries in the declaration board at the time of the inspection by the civil supplies staff. The Court also found that the concurrent findings of the lower courts were based on a careful consideration of the evidence on record.
Issues: 1. Whether the High Court had the power to examine the correctness of the conviction and sentence after the death of the petitioner. 2. Whether the petitioner had contravened Clause 3 of the Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973.
Ratio Decidendi: 1. The High Court's revisional jurisdiction is not subject to the same limitations as its appellate jurisdiction, and the Court has the power to examine the correctness of a conviction and sentence even after the death of the petitioner. 2. The petitioner failed to provide any evidence to support his plea that he had made the necessary entries in the declaration board at the time of the inspection by the civil supplies staff. The concurrent findings of the lower courts were based on a careful consideration of the evidence on record.
Final Decision: The revision petition was dismissed. However, the Court directed that the sale proceeds of the seized articles, if any, be returned to the legal representative of the petitioner.
JUDGMENT :
J.K. Mohanty, J. - Petitioner, who died during the pendency of this revision, was convicted u/s 7 of the Essential Commodities Act (hereinafter called the 'Act') for contravention of Clause 3 of the Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973 (hereinafter referred to as the 'Order') and was sentenced to undergo S.I. for six months and to pay fine of Rs. 500/-, in default to S.I. for two months more by the Sub-divisional Judicial Magistrate, Panposh. In appeal before the Sessions Judge, Sundargarh the conviction was maintained, but the sentence of imprisonment was reduced to three months S.I. along with a fine of Rs. 500/- in default to S.I. for two months more.
2. This case raises the question whether a criminal conviction can be revised after the death of the convicted person. Section 394, Code of Criminal Procedure 1973 reads as follows:
(1) Every appeal u/s 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.
As regards the revisional jurisdiction of the High Court there is no provision similar to Section 394, Code of Criminal Procedure, 1973. There is also no provision that the revision application can be or cannot be made in respect of the order of conviction when the convicted person is dead. Mr. Biswal, learned Counsel appearing for the Petitioner, submitted that the revisional power u/s 401 of the new Code of Criminal Procedure (which is similar to Section 439 of the old Code of Criminal Procedure) can be exercised by the High Court even after the death of the Petitioner. He cited a decision reported in Pranab Kumar Mitra Vs. The State of West Bengal and Another which was a case u/s 439 of the old Code of Criminal Procedure, wherein it has been held:
Section 431, Code of Criminal Procedure in terms applies only to appeals and not to revision applications. In the absence of statutory provisions, in terms applying to an application in revision, as there are those in Section 431 in respect of criminal appeals, the High Court has the power to pass such orders as to it may seem fit and proper, in exercise of its revisional jurisdiction vested in it by Section 439 of the Code. Indeed, it is a discretionary power which has to be exercised in aid of justice. Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case. The revisional powers of the High Court vested in it by Section 439 of the Code, read with Section 435, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence, and that subordinate criminal Courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code. The High Court is not bound to entertain an application in revision or having entertained one, to order substitution in every case. It is not bound the other way, namely, to treat a pending application in revision as having abated by reason of the fact that there was a composite sentence of imprisonment and fine. The High Court has been left complete discretion to deal with a pending matter on the death of the Petitioner in accordance with the requirements of justice. The Petitioner in the High Court may have been an accused person who has been convicted and sentenced, or he may have been a complainant who may have been directed u/s 250 of the Code to pay compensation, to an accused person upon his d
