Judgement

B. P. SINHA, J. : The simple question for determination in this appeal on a certificate of fitness granted by the High Court of judicature at Calcutta, is whether a pending application in revision made under S. 439 of the Code of Criminal Procedure (to be referred to hereinafter as the Code), finally abates on the death of the petitioner in the High Court, and if so, to what extent.

2. It is not necessary to set out, in detail, the facts of the prosecution case and the evidence upon which the findings of the courts of fact were based, except to state that the appellant s father, Sailendra Sundar Mitra, was tried and convicted by a Magistrate of the first class, at Alipore. The appellate court has set out the case against the accused in these words: "The charge against the accused was that on the 2nd December, 1946, at Garden Reach, the accused, being an employee as Establishment Clerk of B. C. II Section in the Traffic Accounts Office of B. N. Railway (now Eastern Railway), cheated the said B. N. Railway Administration by dishonestly inducing it by means of false representation in the pay bill of the nongazetted staff for November, 1946, to deliver to him Rs. 205-13-0 and to one Satish Chandra Das Gupta, a clerk in the said B. C. II Section, Rs. 33-4-0 in excess of legitimate dues, and thereby committed an offence punishable under S. 420, I. P. C." The learned trial Magistrate convicted the accused person for cheating in respect of Rs. 205-13-0, but gave him the benefit of the doubt in respect of the sum of Rs. 33-4-0 claimed on behalf of another person, named Satish Chandra Das Gupta. He sentenced the accused to suffer one day s imprisonment (really detention till the rising of the Court, on the day the order was pronounced), and to pay a fine of Rs. 500, and in default, to rigorous imprisonment for six months more. He also directed that out of the fine, if realised, Rs. 333 shall be paid to the B. N. Railway Administration (now the South Eastern Railway) as compensation, by his order dated February 11, 1955. On appeal, the learned Additional Sessions Judge. at Alipore (24, Parganas), after hearing the parties, dismissed the appeal, and confirmed the orders of conviction and sentence passed by the learned trial Magistrate, by his judgment dated May 9, 1955.

3. Being aggrieved by the judgment and orders of the courts below, the accused aforesaid moved the High Court in its revisional jurisdiction, under S. 439 of the Code. The High Court issued a Rule which was registered as Criminal Revision Case No. 714 of 1955, and stayed the realisation of the fine pending the hearing of the Rule. During the pendency of the case in the High Court, the accused person died on July 8, 1955, leaving him surviving his widow and five children, all of whom were minors except the appellant. The appellant made an application on December 6, 1955, stating that he was one of the heirs of the deceased accused (petitioner in the High Court), and that he was interested in proceeding with the criminal revision case, and challenging the order of conviction and sentence, passed against his deceased father. He, therefore, prayed that he might be added as a party to the Criminal Revision Case No. 714 of 1955, so as to enable him to challenge the order of conviction and sentence aforesaid. This "application for substitution", as the Division Bench of the High Court has characterised it, was heard, and the Bench passed its order on the application on December 22, 1955, holding that the principle of S. 431 of the Code, applied to a criminal revisional application even when there was a composite sentence but only in so far as the sentence of fine was concerned. The application for substitution was, therefore, allowed. The High Court also ruled that the conviction could not be challenged inasmuch as the sentence was composite one of imprisonment as also fine and that, therefore, the revisional application would survive only to the limited extent whether the