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SUPREME COURT OF INDIA
ASHOK BHUSHAN, M.R. SHAH, JJ .
RAMESAN (DEAD) THROUGH LR. GIRIJA. A – APPELLANT(S)
VERSUS
THE STATE OF KERALA – RESPONDENT(S)
CRIMINAL APPEAL NO. 77 OF 2020 (@ SLP(CRL.)...... DIARY NO. 40131 OF 2017)
Decided on : 21-01-2020
Criminal Procedure Code, 1973 – Sections 394 and 431 – Indian Penal Code, 1860 – Section 70 – Abatement of appeal – Death of accused – Appeal against a sentence of fine shall not abate – Even if sentence of fine is imposed alongwith sentence of imprisonment under Section 431, such appeal shall not abate – Appeal in present case where accused was sentenced 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 appeal on merits – Appeal before High Court being against sentence of fine was required to be heard against sentence of fine despite death of accused-appellant – Judgment of High Court set aside and Criminal Appeal revived before High Court to be heard afresh after giving opportunity to legal heirs of accused. (Paras 9, 16, 19, 21 and 22)
Facts of the case:
Present appeal has been filed against the judgment of the High Court of Kerala dated 06.03.2014 by which Criminal Appeal of appellant has been dismissed. Only question to be decided in this appeal is as to whether in the facts of the present case, accused who was sentenced for imprisonment as well as for fine, High Court committed an error in not abating the appeal in toto.
Findings of Court:
From the judgment of the High Court, it does not appear that after the death of the appellant-accused, his legal heirs were given opportunity to proceed with the appeal against the sentence of fine. The judgment of the High Court does not also mention that any counsel has appeared for the legal heirs. High Court ought to have given an opportunity to legal heirs of the accused to make their submissions against the sentence of fine, which fine could have been very well recovered from the assets of accused in the hands of the legal heirs.
Result : Appeal Partly allowed.
JUDGMENT
Ashok Bhushan, J.
This appeal has been filed against the judgment of the High Court of Kerala dated 06.03.2014 by which Criminal Appeal of the appellant has been dismissed.
2. Brief facts of the case giving rise to this appeal are:-
2.1 A First Information Report was registered against Ramesan under Sections 55 (a) and (g) of the Kerala Abkari Act [1 of 1077 (ME)]. Charge under Sections 55(a) and (g) of the Kerala Abkari Act was framed. Prosecution led oral and documentary evidence to prove the charge. Statement of Ramesan was also recorded under Section 313 of Cr.P.C, who completely denied the incident and charge.
2.2 Additional Session Judge vide its order dated 20.12.2006 convicted the first accused Ramesan under Section 55(a) and imposed imprisonment for a period of two years and a fine of Rs. One Lakh. The accused was also convicted and sentenced under Section 55(g) of the same punishment of imprisonment of two years and fine of Rs. One Lakh. In default of payment of fine amount, accused was to undergo simple imprisonment for six months each under Sections 55(a) and (g) of the Abkari Act.
2.3 An appeal was filed by the first accused Ramesan in the High Court being Criminal Appeal No. 254 of 2007 on 06.02.2007. After filing of the appeal, the appellant Ramesan died on 21.12.2007. The High Court noticed the factum of death of the appellant on 21.12.2007, however, proceeded to decide the appeal on merits referring to the principle under Section 394 Cr.P.C. The High Court after considering the evidence on record upheld the conviction. The High Court took the view that since the appellant died pending the appeal, the sentence of imprisonment has become unworkable, however, regarding the imposition of fine, there is no reason to hold that Court below committed any mistake and the appeal was consequently dismissed. This appeal has been filed by Girija A., the legal heir of Ramesan (deceased).
3. Learned counsel for the appellant contended that in view of the death of the accused on 21.12.2007, the High Court ought to have abated the entire appeal. It is submitted that Section 394 of Cr.P.C. saves the appeal, which arises against sentence of fine only. When there was composite sentence of imprisonment as well as fine, the appeal has to abate both against the sentence of imprisonment as well as fine. It is contended that High Court committed error in proceeding to decide the appeal on merits. High Court ought to have abated the appeal into to.
4. Learned counsel for the State refuting the submission contends that there being sentence of fine also, the appeal has rightly been decided on merits by the High Court. The sentence of fine or composite sentence of imprisonment and fine, is also a sentence of fine.
5. We have considered the submissions of the learned counsel for the parties and have perused the records.
6. The only question to be decided in this appeal is as to whether in the facts of the present case, the accused who was sentenced for imprisonment as well as for fine, the High Court committed an error in not abating the appeal into to.
7. Section 394 Cr.P.C. deals with abatement of appeals. Section 394 is as follows:-
"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."
8. Even in Cr.P.C, 1898, there was a provision pertaining to abatement of the appeal, which was
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