IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2155 of 2009()
1. SOUDAMINI, W/O. LATE SREEDHARAN,
... Petitioner
2. RAJESH, S/O. LATE SREEDHARAN,
3. RINEESH, S/O.LATE SREEDHARAN,
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SMT.K.M.BEENA
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :06/07/2009
O R D E R
THOMAS. P. JOSEPH, J
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Crl.R.P.No.2155/2009
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Dated this the 6th day of July 2009.
O R D E R
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Heard counsel for petitioners and the Public
Prosecutor who appeared for respondent.
2. Petitioners are the legal representatives of
appellant who died pending the appeal. He was challenging
his conviction and sentence of imprisonment and fine
entered by learned Judicial Magistrate of First Class,
Quilandy in CC.No.1038/1997 for offence punishable
under section 55(a) of the Abkari Act. In the course of
Appeal, he died. That fact was taken note of by learned
Additional Sessions Judge while hearing the Crl. Appeal
(No.245/2001). Learned Additional Sessions Judge referred
to the facts of the case, evidence adduced by the
prosecution and stated that evidence revealed that
appellant was in possession of the contraband. Learned
Additional Sessions Judge observed that on account of death
Crl.R.P.No.2155/2009
2
of appellant the appeal to the extent that related to
imprisonment portion is abated. The appeal was ultimately
dismissed observing that the sentence of imprisonment will
stand abated. Petitioners are challenging the legality and
prepositions of the dismissal of the appeal.
3. The appeal was against conviction and sentence
of imprisonment and fine. As per the decision of Supreme
Court in State of Andhra Pradesh Vs. Narasimha
Kumar [(2006(3) KLT 505] , followed by this court in
Mani Madavalappil Vs.C.I. of Police [2007(2) KLT
400], appeal cannot abate u/s.394 of the Code of Criminal
Procedure when sentence is imprisonment and fine.
Learned Additional Sessions Judge was not correct in
holding that the appeal to the extent it concerned sentence
of imprisonment stood abated.
4. Petitioners say that they were not aware of the
pendency of the appeal and hence could not seek
permission of the Appellate Court to prosecute the appeal
further. On hearing learned counsel, I am inclined to think
Crl.R.P.No.2155/2009
3
that petitioners should be given an opportunity to seek
permission of the Appellate Court to prosecute the appeal
further.
Resultantly, this revision is allowed. Judgment of
learned Additional Sessions Judge (ADHOC-1), Kozhikode in
Crl. Appeal No.245/01 is set aside and the appeal is
remitted to that court for fresh disposal on merit. It will be
open to the petitioners to seek permission of the appellate
court to continue the appeal. Petitioners shall appear in the
appellate court on 10.8.2009.
THOMAS. P. JOSEPH,
JUDGE
app/-