REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL     NO. 77 of     2020  (@ SLP (Crl.)…… Diary No.40131/2017)

RAMESAN (DEAD)  THROUGH LR. GIRIJA A                ...APPELLANT(S)  

VERSUS

THE STATE OF KERALA       ...RESPONDENT(S)  

J     U     D     G     M     E     N     T 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.

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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.

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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. 3

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 in toto.   

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 in toto.   4

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 to

the following effect:-

“431. Every  appeal  under  Section  411-A, sub-section  (2),  or  Section  417  shall finally abate on the death of the accused, and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant.”

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9. Both under the Old Code as well as under the

present Code of Criminal Procedure, it is provided

that the appeal against a sentence of fine shall not

abate.   

10. The  fine  as  per  the  provisions  of  Code  of

Criminal  Procedure  is  recoverable  from  movable  and

immovable  properties  of  the  accused,  Section  421

Cr.P.C. provided as follows:-

“421. Warrant for levy of fine. --(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-

(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(b) issue a warrant to the Collector of  the  district,  authorising  him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:  

Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such  imprisonment  in  default,  no  Court shall  issue  such  warrant  unless,  for

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special reasons to be recorded in writing, it considers it necessary so to do, or unless  it  has  made  an  order  for  the payment of expenses or compensation out of the fine under section 357.

(2) The  State  Government  may  make rules  regulating  the  manner  in  which warrants under clause (a) of sub- section (1)  are  to  be  executed,  and  for  the summary determination of any claims made by any person other than the offender in respect  of  any  property  attached  in execution of such warrant.

(3) Where the Court issues a warrant to the Collector under clause (b) of sub- section (1), the Collector shall realise the  amount  in  accordance  with  the  law relating to recovery of arrears of land revenue,  as  if  such  warrant  were  a certificate issued under such law:  

Provided that no such warrant shall be executed  by  the  arrest  or  detention  in prison of the offender.”

11. Section 70 of Indian Penal Code provides that any

part of fine which remains unpaid may be levied at

any time within six years after the passing of the

sentence.  The provision further provides that the

death  of  offender  does  not  discharge  from  the

liability any property which would, after his death,

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be legally liable for his debts.  Section 70 of the

Indian Penal Code is as follows:-

“70. Fine leviable within six years, or during imprisonment—Death not to discharge property from liability.—The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time previous to the expiration of that period; and the death of the offender does not discharge from the  liability  any  property  which  would, after his death, be legally liable for his debts.”

12. This  Court  had  occasion  to  consider  the

provisions of Sections 431 and 439 of Cr.P.C. 1898 in

Pranab  Kumar  Mitra  Vs.  State  of  West  Bengal  and

Another, AIR 1959 SC 144.  Section 439 provides for

revisional jurisdiction of the High Court.  One of

the issues was as to whether Section 431 applies to

revisional application filed in the High Court.  In

paragraph 7, this Court laid down following:-

“7.  ………………………In view of the fact that even  in  the  absence  of  any  statutory provisions,  we  have  held,  in  agreement with the decision aforesaid of the Bombay High Court, that the High Court has the power to determine the case even after the death of the convicted person, if there was a sentence of fine also imposed on him,  because  that  sentence  affects  the

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property of the deceased in the hands of his legal representative,………………………”

13. This Court in Bondada Gajapathi Rao Vs. State of

Andhra  Pradesh,  AIR  1964  SC  1645 had  occasion  to

consider Section 431 Cr.P.C. A special leave petition

was  filed  in  this  Court,  the  accused  died  during

pendency of special leave petition. This Court again

reiterated  the  principle  on  which  hearing  of  a

proceeding may be continued after the death of an

accused. ;In paragraph 3 of the judgment, following

was laid down:-   

“3. The principle on which the hearing of a proceeding may be continued after the death of an accused would appear to be the effect of the sentence on his property in the hands of his legal representatives. If the  sentence  affects  that  property,  the legal representatives can be said to be interested in the proceeding and allowed to continue it.”

14. This Court had occasion to consider the case of a

composite sentence of imprisonment as well as fine in

Harnam  Singh  Vs.  The  State  of  Himachal  Pradesh,

(1975) 3 SCC 343.  In the above case, the accused was

convicted  under  Sections  5(1)(d)  and  5(2)  of

Prevention of Corruption Act, 1947 as well as under

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Section 161 Indian Penal Code and he was sentenced

for rigorous imprisonment of two years and to a fine

of Rs.300.  Contention was raised before this Court

that since the deceased was not sentenced to pay a

fine only but was punished with a composite sentence

of imprisonment and fine, the appeal would abate as

regards the sentence of fine also.  Such contention

was noted in paragraph 4 of the judgment, which is to

the following effect:-

“4. Learned  Counsel  for  the  State  of Himachal Pradesh, who are respondents to the  appeal,  has  raised  a  preliminary objection to the right of the appellant’s widow to prosecute the appeal. He contends that  the  substantive  sentence  of imprisonment  imposed  on  the  appellant Harnam Singh came to an end with his death and therefore the appeal in regard to that sentence  stands  abated.  As  regards  the sentence  of  fine,  it  is  contended  that since  the  deceased  appellant  was  not sentenced  to  pay  a  fine  only  but  was punished  with  a  composite  sentence  of imprisonment  and  fine,  the  appeal  would abate  as  regards  the  sentence  of  fine also.  According  to  the  learned  Counsel this Court may, at the highest, set aside the sentence of fine if it finds that the appellant need not have been asked to pay a fine. But the order of conviction and the substantive sentence must remain and the legality or propriety of that order cannot any longer be questioned in view of the death of the appellant.”

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15. Rejecting the above submission, this Court laid

down that if by the judgment under appeal a sentence

of  fine  is  imposed  either  singularly  or  in

conjunction  with  a  sentence  of  imprisonment,  the

appeal against conviction would be an appeal from a

sentence of fine within the meaning of Section 431.

In paragraph 10, following was laid down:-  

“10. The  narrow  question  which  then requires to be considered is whether an appeal from a composite order of sentence combining  the  substantive  imprisonment with fine is for the purposes of Section 431 not an appeal from a sentence of fine. It is true that an appeal from a composite order of sentence is ordinarily directed against both the substantive imprisonment and the fine. But, such an appeal does not for that reason cease to be an appeal from a sentence of fine. It is something more not less than an appeal from a sentence of fine only and it is significant that the parenthetical clause of Section 431 does not contain the word “only”. To limit the operation  of  the  exception  contained  in that clause so as to take away from its purview  appeals  directed  both  against imprisonment and fine is to read into the clause the word “only” which is not there and  which,  by  no  technique  of interpretation  may  be  read  there.  The plain meaning of Section 431 is that every criminal appeal abates on the death of the accused “except an appeal from a sentence of fine”. The section for its application requires that the appeal must be directed to the sentence of fine and not that it must be directed to that sentence only. If by the judgment under appeal a sentence of

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fine is imposed either singularly or in conjunction  with  a  sentence  of imprisonment,  the  appeal  against conviction  would  be  an  appeal  from  a sentence  of  fine  within  the  meaning  of Section 431. All that is necessary is that a  sentence  of  fine  should  have  been imposed  on  the  accused  and  the  appeal filed  by  him  should  involve  the consideration  of  the  validity  of  that sentence.”

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 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  the  appeal  on

merits.    

17. This Court had occasion to consider Section 394

Cr.P.C.  in  Lakshmi  Shanker  Srivastava  Vs.  State

(Delhi Administration), (1979) 1 SCC 229.  In the

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above  case,  the  accused  was  sentenced  to  suffer

rigorous imprisonment for 18 months on each count and

a  fine  of  Rs.200.   The  accused  had  died  during

pendency of the appeal in this Court and argument was

raised that in view of the above, the appeal abates

and  cannot  be  proceeded  with.   Such  argument  was

noticed in paragraph 4, which is to the following

effect:-

“4. Mr H.R. Khanna, learned Counsel who appeared  for  the  respondent  raised  a preliminary objection. It was urged that the appellant died during the pendency of this  appeal  and,  therefore,  the  appeal abates  and  cannot  be  proceeded  with. Simultaneously it was urged that if the appeal  were  not  to  abate  on  the  only ground  that  the  appellant  was  also sentenced to pay a fine of Rs 200 and, therefore, it may be said that right to property of the legal representatives may be adversely affected and, therefore, they would be entitled to continue the appeal, the  respondent  State  is  prepared  to concede that the sentence of fine may be set aside.”

18. In the above case, a leave was obtained under the

proviso to Section 394(2) by legal heirs to continue

the appeal.  This Court had overruled the primary

objection that appeal should abate although relying

on  the  proviso  to  Section  394(2).  The  principle

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regarding non-abatement of the appeal from a sentence

of fine as contained in Section 431 of Cr.P.C., 1898

as  well  as  Section  394  of  present  Cr.P.C.  is  the

same.   A  similar  legislative  scheme  has  been

contained,  which  was  occurring  in  Section  431

Cr.P.C.,  1898,  hence,  judgment  of  this  Court

regarding interpretation of Section 431, Cr.P.C. as

has been done by this Court in Bondada Gajapathi Rao

(supra) and Harnam Singh (supra) shall squarely apply

to the interpretation of Section 394 Cr.P.C.

19. We,  thus,  conclude  that  the  appeal  filed  by

accused Ramesan in the High Court was not to abate on

death of the accused. The High Court rightly did not

direct  for  abatement  of  appeal  and  proceeded  to

consider the appeal on merits.  The appeal before the

High  Court  being  against  sentence  of  fine  was

required to be heard against the sentence of fine

despite death of accused-appellant.  

20. Although, we have upheld the view of the High

Court that appeal filed by the accused was not to

abate and was required to be heard and decided on

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merits  but  there  is  one  aspect  of  hearing  of  the

appeal before the High Court, which need to be noted.

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.  The

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  the

accused in the hands of the legal heirs.   

21. In above view of the matter, we are of the view

that  ends  of  justice  be  served  in  reviving  the

Criminal Appeal No. 254 of 2007 before the High Court

to  give  an  opportunity  to  the  legal  heirs  of  the

accused  to  make  their  submissions  against  the

sentence of fine.   

22. In result, the appeal is partly allowed.  The

judgment of the High Court dated 06.03.2014 is set

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aside and Criminal Appeal No.254 of 2007 is revived

before the High Court to be heard afresh after giving

an opportunity to the legal heirs of the accused.    

......................J.                              ( ASHOK BHUSHAN )

......................J.                              ( M.R. Shah )

New Delhi,  January 21, 2020.        

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