PETITIONER: BONDADA GAJAPATHY RAO Vs. RESPONDENT: STATE OF ADHRA PRADESH DATE OF JUDGMENT: 16/03/1964 BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. HIDAYATULLAH, M. MUDHOLKAR, J.R. CITATION: 1964 AIR 1645 1964 SCR (7) 251 CITATOR INFO : D 1975 SC 236 (15) ACT: Criminal Trial-Appellant sentenced to imprisonment for life- Death during the pendency of appeal-Heirs whether can prosecute appeal-Code of Criminal Procedure, 1898, (Act 5 of 1898), s. 431, 435, 439-Constitution of India, Art. 136. HEADNOTE: The appellant was convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life by the High Court for the offence of the murder of his wife. He was granted special leave to appeal by this Court. During the pendency of the hearing of this appeal the appellant died. After his death his sons and daughter applied to this Court for permission to continue to prosecute the appeal. It was pleaded by the legal representatives of the appellant that though that sentence of imprisonment could no longer be executed, it still affected the property of the deceased and the legal representatives were, therefore, interested in the appeal and should be permitted to continue it. The appellant, who held a high office in the Government of Andhra Pradesh had been suspended during the investigation of the charge against him and he was dismissed from service under certain service rules on his conviction. During this time the appellant had only been given a small allowance. On these facts it was pleaded that if the conviction was set aside, the estate of the deceased would be entitled to receive the full salary from the Government. Held (Per Sarkar, J.): (i) Neither s. 431 nor the cases men- tioned can be said to apply to the present case proprio vigore, for the present is not an appeal under the code of criminal procedure which is dealt with by s. 431 nor is it a revisional application like the one which came up for consideration in Pranab Kumar Mitra's case, while as for the English case, it is only of persuasive value. Pranab Kumar Mitra v. The State of West Bengal, [1959] Supp. 1 S.C.R. 63 and Hodgson v. Lakeman, [1943] L.R. K.B. 15, distinguished. (ii).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. This principle applies in appeals, revisions, and in petitions under Art. 136 of the Constitution. A sentence of fine no doubt affects the property. In the present case, however, the sentence was not of fine but of imprisonment which on the death of the accused has become infructuous. In the present case the effect of the sentence imposed in this case being set aside would not directly entitle the legal representatives to the salary. They will have to obtain necessary orders from the Government for the purpose. 252 Held (Per Hidayatullah, J.): (i) This was an appeal against a sentence of imprisonment and an appeal of this character would normally abate on the death of the appellant because a criminal prosecution is concerned primarily with the punish- ment of an offender and not with the trial of an abstract issue about the truth or falsity of a prosecution case. The same principle must apply to appeals after conviction, except in so far as a judgment already rendered touches assets which would come to the legal representative. In so far as personal punishment (other than a fine) is concerned that stands dissolved by the death of the offender and an appeal to get that punishment set aside becomes infructuous and abates. Pranab Kumar Mitra v. The State of West Bengal, [1959] Supp. 1 S.C.R. 63, Pritam Singh v. State, [1950] S.C.R. 453, distinguished. Hodgson v. Lakeman, [1943] L.R.K.B. 15, Baghis v. Rowes [1955] 1 Q.B.D. 573, referred to. (ii).The principle laid down in Pranab Kumar Mitra v. The State of..West Bengal and Another and in Pritam Singh v. The State has.no application to the present matter because there is no analogy between an appeal by special leave and a revision under the code. The present case is not a case where the legal representatives after the death of the offender have to meet the liability of a fine or are required to protect the assets which they claim should reach them. In the present case no claim of the petitioners is jeopardized directly, by the judgment. Their claim is dependent upon the administrative action of Government which may not proceed upon the result of criminal prosecution. This appeal was only concerned with the correctness or otherwise of the conviction and not with any monetary claims depending upon the result of the appeal. In such a situation the ordinary rule that a criminal proceeding against a person comes to an end on his demise must apply also to special appeals in this court, such as this, even though the provisions of the Criminal Procedure Code may not be directly applicable. Held (Per Mudholkar, J.): (i) The decision of this court in Pranab Kumar Mitra v. The State of West Bengal has no, bear- ing upon an appeal brought to this court by special leave. It is no doubt true that the power confer-red by section 435 of the Code on the High Court and certain other courts and by Article 136 of the Constitution on this Court is discretionary. Under section 439 of the Code the High Court can exercise any of the powers conferred on a court of appeal by sections 423, 426, 427 and 428 or on a court by s. 338 and has also the power to enhance the sentence. Under Section 435 of the Code, the High Court can suo motu call for the record of any inferior court but this power cannot be exercised by this court under article 136 of the Constitution. Therefore there is a fundamental difference between the power of the High Court in revision and the power of this Court in Art. 136 of the Constitution. Pranab Kumar Mitra v. The State of West Bengal, [1959] Supp. 1 S.C.R. 63, distinguished. (ii).In a criminal matter the issue is personal between the accused person and the State and the right of appeal is also personal to the appellant. There is admittedly no express provision permitting the substitution of legal representatives of a decreased appellant in a criminal appeal brought to this Court by 253 special leave. The policy of the law discernible from s. 431 of the Code has to be borne in mind. The policy under section 431 of the Code is that every criminal appeal under chapter XXXI will abate except an appeal from a sentence of fine. There is no provision which prescribes the continuation of the appeal on the death of the appellant in cases where the sentence is of imprisonment. The interest of the legal representatives in the present case is not a direct interest in the sense that it cannot arise out of the decision of this court even if it is in favour of the appellant. The only interest which the applicants have is a contingent one and is not one which could flow directly out of the ultimate decision of this Court. Hodgson v. Lakeman, (1943) L.R.K.B. 15, Regina v. Rowe, (1955) (1) Q.B.D. 573, Hesketh v. Atherton, Leach v. Wanstead School Board, Siberry v. Connolly, Constantine v. Illingworth, Jones v. Gallowfield, Rivers v. Glasse, (all cited in Short and Mellor, Practice on the Crown Side of the King's Bench Division 2nd Ed. at p. 425), United States v. Mook, 125 F2d 706, The State of Kerala v. Narayani Amma Kamala Devi, [1962] Supp. 3 S.C.R. 943 and Imperatrix v. Dongali Andaji, (1879) I.L.R. Bom. 564, referred to and discussed. (iii).....The Legislature has by limiting in section 431 of the Code the survival of appeals to appeals against sentences of fine has chosen to recognise only one kind of interest and no other. This Court in exercise of its inherent powers or discretionary powers would not be acting according to correct legal principles in recognising a kind of interest which the legislature has not chosen to recognise. In the circumstances the applicants ought not to be granted special leave to prosecute the appeal. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 179 of
1961. Appeal by special leave from the judgment and order
dated October 31, 1960, of the Andhra Pradesh High Court in
Criminal Appeal No. 161 of 1960.
K. R. Chaudhuri, for the appellant.
A. S. R. Chari, B. R. G. K. Achar, and R. N. Sachthey,
for the respondent.
March 16, 1964. The following judgments were delivered-
SARKAR, J.-This is an appeal from a sentence of imprisonment
for life imposed on the appellant upon his conviction for
the offence of the murder of his wife. The appeal was filed
with the special leave of this Court granted under Art. 136
of the Constitution but the appellant died pending the
appeal. His legal representatives now seek leave to
continue the appeal.
There would seem to be authority for the proposition that
revision petitions and some appeals from sentences of fine
might be continued by his legal representatives on the death
254
of the accused pending the proceeding: see s. 431 of the
Code of Criminal Procedure and Pranab Kumar Mitra v. The
State of West Bengal(1). It appears that in England appeals
from similar sentences are permitted to be continued by the
executors of the deceased appellant: see Hodgson v.
Lakeman(2). It is true that neither s. 431 nor the cases
mentioned can be said to apply to the present case proprio
vigore, for the present is not an appeal under the Code
which is dealt with by s. 431 nor is it a revisional
application like the one which came up for consideration in
Pranab Kumar Mitra’s case, while as for the English case, it
is only of persuasive value. All the same however I think
it must now be held that appeals from sentences of fine may
be permitted to be continued by the legal representatives of
the deceased appellant. First, I find no, provision making
such appeals abate. If they can be continued when arising
under the Code, there is no reason why they should not be
continued when arising under the Constitution. If revision
petitions may be allowed to be continued after the death of
the accused so should appeals, for between them no
distinction in principle is possible for the purpose of
continuance. It is true that the Code of Criminal Procedure
which creates the revisional powers of a Court provides that
such powers may be exercised suo motu but it does not seem
to me that Pranab Kumar Mitra’s case(1) was based on this
for on that ground all revision cases should have been
permitted to be continued and the permission should not have
been confined to cases of fine. Indeed in that case this
Court proceeded on the basis that there was no statutory
provision applying to the case. It observed, “even in the
absence of any statutory provisions, we have
held…………. 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 property of the deceased
in the hands of his legal representative”. A sentence of
fine affects property equally when the case is taken further
up in appeal or in revision, If it is just and proper to
continue the hearing in one case after the death of the
accused, it would be equally so in the other case.
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.
A sentence of fine no doubt affects the property. In the
present -case, however, the sentence was not of fine but of
imprisonment which on the death of the accused has become
(1) [1959] 1 S.C.R. 63.
(2) [1943] L.R.K.B. 15.
255
infructuous. There is no one now who can be imprisoned. It
is, however, said that though that sentence can no longer be
executed, it still affects the property of the deceased and
the legal representatives are, therefore, interested in the
appeal and should be permitted to continue it. The matter
is put in this way. The appellant, who held a high office
in the Government of Andhra Pradesh had been suspended
during the investigation of the charge against him and he
was dismissed from service under certain service rules on
his conviction. During this time the appellant had only
been given a small allowance. It was said that if the
conviction was set aside, the estate would be entitled to
receive the full salary from the Government.
It seems to me that this contention is not accurate. It may
be that if the sentence is set aside that may assist the
legal representatives in their effort to obtain the full
salary to which the deceased’s estate would have been
entitled. But the effect of the sentence imposed in this
case being set aside would not directly entitle the legal
representatives to the salary. They will have to obtain
necessary orders from the Government for the purpose. It
has not been shown to us that such order will automatically
follow the setting aside of the conviction. Neither has it
been shown that the legal representatives cannot move the
Government to pass such orders on the ground that the
correctness of the conviction could not be tested because of
the death of the appellant. For these reasons I am unable
to hold that tire justice of the case requires that the
legal representatives of the deceased should be permitted to
continue the appeal. It would be extending the principle
applied to the case of a sentence of fine, if on the basis
of it this appeal was allowed to be continued by the legal
representatives after the death of the appellant and for
such an extension I find no warrant.
In my view, for these reasons the legal representatives are
not entitled to continue the appeal. That being so and as
the sentence was one of imprisonment which would not affect
anyone after the death of the accused, it cannot be said
that there is anyone interested in the appeal. There is no,
question, therefore, in such a case for proceeding further
with the appeal.
HIDAYATULLAH, J.-The appellant was convicted under s. 302 of
the Indian Penal Code and sentenced to imprisonment for life
by the High Court of Andhra Pradesh. He was granted special
leave to appeal by this Court. During the pendency of this
appeal the appellant died on August 30, 1963. After his
death his sons and daughters applied to this Court on
October 5, 1963 for permission to continue to prosecute the
appeal. Their petition is all that we are concerned with at
the present moment.
The appellant was working as Superintending Engineer
(Electricity) in the service of the Government of Andhra
Pradesh. The case against him was that on August 10, 1959
he
256
committed the murder of his wife by shooting her in the back
with a revolver. He was acquitted by the Sessions Judge of
Krishna Division, Masulipatnam but, on appeal by the State
Government the order of acquittal was set aside and he was
convicted and sentenced as above. In view of the
appellant’s death we are of course not interested any
further in considering the details of the offence, if any,
unless we allow the heirs of the appellant to prosecute the
appeal after his death and this is precisely what the
present petitioners claim they are entitled to do. It is
admitted, however, that no analogous contention was ever
raised in this Court, though appeal on the death of a sole
appellant were, before this, treated as abated. One would
expect that an appeal of this character would normally abate
on the death of the appellant because a criminal prosecution
is concerned primarily with the punishment of an offender
and not with the trial of an abstract issue about the truth
or falsity of a prosecution case. The maxim actio perso-
nalis moritur cum persona is often invoked in this behalf.
The Criminal Procedure Code in s. 431 also provides that all
-appeals filed under s. 41 I-A sub-s. 2 or s. 417 shall
finally abate on the death of the accused and every other
appeal under Chapter XXXI shall finally abate on the death
of the appellant, except an appeal against a sentence of
fine. The section cannot cover a, case such as the present
because this appeal was not filed under any of the sections
mentioned in s. 431 or under Chapter XXXI.
It is contended that without the aid of a provision like s.
431, Criminal Procedure Code, the appeal must be treated as
continuing and it is pointed out that for this reason and
for the additional reason that the powers of revision can be
exercised suo motu this Court allowed legal representatives
t` continue to prosecute criminal revisions under s. 439 of
the Code in Pranab Kumar Mitra v. The State of West Bengal
and Another(1) and Pritam Singh v. The State(2). It is
urged that on a parity of reasonig this appeal can be
continued by the heirs. It is not my purpose to consider,
whether in the absence of any direct injury to the living
every criminal proceeding must come to an end after the
death of the accused whether before his conviction or after.
But there must always be some discernible reason for
permitting another person to continue an appeal whether
civil or criminal after the death of the appellant. An
appeal is not a heritable asset and does not revolve as a
matter of course upon an executor or heir. Even under the
civil law an express provision is required for substitution
of another person in the place of the person deceased before
the appeal can be continued and this is again subject to
whether the cause of action survives or not. The same
principle is again to the
(1) [1959] (1) S.C.R. 63.
(2) [1950] S.C.R. 453.
257
forefront in s. 431 when it allows an appeal in respect of
fine to be continued but not appeals involving imprisonment.
The intention there too appears to be to afford only those
persons a right whose interests are directly jeopardized by
the judgment. In so far as personal punishment (other than
a fine) is concerned that stands dissolved by the death of
the offender and an appeal to get that punishment set aside
becomes infructuous and abates.
The only question in this case is whether the principle laid
down in the two cases of this Court cited above should
govern special appeals or the principle underlying s. 431.
It may be said at once that the former is not a direct
precedent applicable to the present matter because there is
no analogy between an appeal by special leave and a revision
under the Code. The latter can be suo motu but not the
former. The petitioners claim that the father, if he were
acquitted, would have been entitled to claim his pay for the
period upto his death since on his conviction he was removed
from service by the Government and the amount thus involved
is Rs. 40,000/-. The petitioners say that if the appeal
were now allowed they would be able to ask for this amount
and in this way claim an interest in the appeal. This is
not a case where the legal representatives after the death
of the offender have to meet the liability of a fine or are
required to protect the assets which they claim should reach
them. This is a case where the petitioners claim to have
the judgment of the High Court reexamined so that they may
be able to prefer a claim to the salary to which their
father would have been entitled if he had been acquitted of
the criminal charge. In my judgment. no claim of the
petitioners is jeopardized directly by the judgment. Their
claim is dependent upon the administrative action of
Government which may not proceed upon the result of the
criminal prosecution. In other words, the claim on the
strength of which the present petitioners seek to join in
this appeal is too remote and not directly consequential
upon the issue to be tried. The appeal was only concerned
with the correctness, or otherwise of the conviction and not
with any monetary claims depending upon the result of the
appeal. In such a situation the ordinary rule that a
criminal proceeding against a person comes to an end on his
demise must apply also to special appeals in this Court,
such as this, even though the provisions of the Criminal
Procedure Code may not be directly applicable.
At the hearing counsel cited cases from the English Courts
and the Supreme Court of the United States. The English
cases referred to are collected in Short & Mellor’s Practice
of the Crown Office and Griffith’s Guide to Crown Practice
and the cases of the United States are referred to in
Annotations.
L/P(D)ISCI-9 ..
258
in 87 Lawyer’s Edition 1234 and 1 Lawyer’s Edition II Series
1879. The English practice appears to be that there must be
a, direct monetary liability attaching to the living by
reasons of the impugned judgment before they can be
allowed to continue an appeal filed by a dead person. See
Hodgson v. Lakeman(1) and Regina v. Rowe(2). The American
practice also appears to be the same.
There is good reason for holding that a criminal prosecution
in which the State is anxious to bring an offender to book
with a view to getting him punished for a crime comes to an
end on the death of the person arraigned. The same
principle must apply also to appeals after conviction,
except in so far as a judgment already rendered touches
assets which would come to the legal representatives or the
executor as the case may be. Beyond this it is not possible
to conceive of remoter interests because if the law were to
take into account such remote interests every appeal would
have to be continued after the death of the appellant. In
my judgment, the present petitioners do not claim any direct
interest and the appeal must, therefore, be taken to have
abated. I agree that the petition be dismissed and the
appeal held to have abated.
MUDHOLKAR, J.-This appeal raises an interesting and
important question. It is whether the heirs at law of a
deceased person who had brought an appeal to this Court by
special leave in which he had challenged his conviction and
sentence for an offence, are entitled to prosecute the
appeal after his death during the pendency of the appeal.
The applicants are the children of the deceased who was a
Superintending Engineer (Electricity) in the service of the
Government of Andhra Pradesh. He was charged with an
offence under s. 302, Indian Penal Code for having committed
the murder of his wife by shooting her with a revolver.
During the investigation of the offence he was placed under
suspension with effect from August 10, 1959 and was allowed
subsistence allowance for some time. His defence at the
trial was that while his wife was picking up the revolver
from the teapoy on which he had kept it, suspecting that he
would shoot himself with it, it went off accidently and
killed her. This defence was accepted by the Sessions Judge
and he was acquitted. On appeal by the State the High Court
of Andhra Pradesh set aside the acquittal and convicted him
of an offence under s. 302, I.P.C. and sentenced him to
undergo imprisonment for life. He thereupon sought and
obtained special leave from this Court to prefer an appeal.
During the pendency of the appeal he died. According to the
applicants a sum of Rs. 40,000/- would be due to the deceas-
ed, being the difference between the subsistence allowance
actually paid by the Government to him and the total emolu-
ments that would have been payable to him from the date of
(2) [1955] 1 Q.B.D. 573
(1) [1943] K.B. 15.
259
suspension till his death and that they as his legal heirs
would be entitled to act this amount in case the conviction
and sentence are set aside by this Court.
In support of his contention that the appeal has not abated
by reason of the death of the appellant Mr. K. R. Chaudhuri
points out that s. 431 of the Code of Criminal Procedure
(hereafter referred as the Code) which speaks about appeals
is limited in its application to appeals under Ch. XXXI of
the Code and would not fetter the powers of this Court under
Art. 136 of the Constitution to hear an appeal brought
before it by special leave even though the person who
brought it is no longer alive. It is no doubt true that s.
431 of the Code only says that appeals under s. 411A, sub-s.
(2) and s. 417 shall finally abate on the death of the
accused and every other appeal under Chapter XXXI except an
appeal from a sentence of fine shall finally abate on the
death of the appellant. It does not, therefore, in terms
apply to an appeal permitted to be preferred by this Court
in exercise of its discretion under Art. 136 of the
Constitution. The argument of Mr. Chaudhuri is that the
power conferred upon this Court by Art. 136 is wide and
discretionary and is analogous to that conferred upon the
High Court by s. 439 read with s. 435 of the Code.
Therefore, upon an analogy of the decision of this Court in
Pranab Kumar Mitra v. The State of West Bengal and
another(1) this Court has the power to hear the appeal and
to permit the applicants to prosecute it. He does not
contend that the applicants have a right to be brought on
the record in place of the deceased appellant but submits
that to meet the ends of justice it would be right and
proper to permit the applicants to prosecute the appeal
because if it succeeds they will be able to claim from the
Government the arrears with respect to salary due to their
deceased father from the Government.
It seems to me that the decision upon which reliance has
been placed has no bearing upon an appeal brought to this,
Court by special leave. It is no doubt true that the power
conferred by s. 435 of the Code on the High Court and
certain other courts and by Art. 136 of the Constitution on
this Court is discretionary. In so far as the High Court
and certain other courts are concerned the discretion is to
call for and examine any record of any proceeding before an
inferior criminal court situate within the local limits of
its jurisdiction for the purpose of satisfying itself as to
the correctness, legality or propriety of any finding,
sentence or order passed by the inferior court and as to the
regularity of any proceeding of such court. Under s. 435
these courts have power to act in this manner suo motu and
s. 440 provides that no party has a right to be heard either
(1) [1959] Supp. 1 S.C.R. 63.
L/d)D)ISCI-9,a) ….
260
personally or by a pleader before such court, with one
exception. That exception is that the High Court cannot
make an order under s. 439 of the Code to the prejudice of
an accused person unless he is given an opportunity of being
heard either personally or by pleader in his defence. When
the record comes before the High Court it may in its
discretion exercise any of the powers conferred on a Court
of appeal by sections 423, 426, 427 and 428 or on a Court by
s. 338 and has also the power to enhance the sentence.
Article 136 of the Constitution confers discretion upon this
court whether to grant special leave or not. But this
Article does not confer any power upon this Court to call
for the record of any court or tribunal suo motu for the
purpose of examining it and making an appropriate order. It
only empowers this Court to grant leave to a person to bring
his appeal before it and afford him an opportunity of
showing such error as may be existing in the judgment or
order appealed from. There is a fundamental difference bet-
ween a power which is exercisable by a Court suo motu and a
power which can be exercised only when it is moved in that
behalf by a party. For the exercise of suo motu power the
appearance of a, party before the Court concerned is not a
prerequisite. Indeed as s. 440 provides, it is for the
Court to decide whether or not to allow the party to appear
before it and be heard. But of course the principle of
natural justice would preclude a court even in such a case
from making an order to the prejudice of a party without
giving the party an opportunity to be heard. In so far as
an appeal is concerned, by whichever way it is brought,
whether as of right conferred by a provision in the
Constitution or by any other law or by special leave the
appellant has a right to be heard and a right to prosecute
the appeal. A Court exercising suo motu powers may choose
at any stage to drop the proceeding and not proceed to
examine the records at all. But as long as an appeal is
pending before a Court and there is a person legally
competent to prosecute it and there is no legal impediment
to its being heard, the Court has no discretion to refuse to
go on with the appeal even though initially it may have been
brought before it by its leave. As soon as -the leave is
granted a right accrues in favour of the party who has been
granted leave. It may be that where this Court finds that
leave has been improperly obtained or given it may revoke
the leave. But that is quite different from saying that
without revoking the leave it can drop the appeal. This
distinction between revisional powers and appellate powers
has been adverted to in the decision relied upon(1) at p. 70.
Sinha, J. (as he then was) has observed:
“The revisional powers of the High Court
vested in it by s. 439 of the Code, read with
s. 435, do not create any right in the
litigant, but only conserve the power of the
High Court to see that justice is
(1) [1959] Supp. 1 S.C.R. 63.
261
done in accordance with the recognized rules
of Criminal Jurisprudence, and that
subordinate criminal courts do not exceed
their jurisdiction, or abuse their powers
vested in them by the Code. On the other
hand, as already indicated, a right of appeal
is a statutory right which has got to be
recognized by the courts, and the
right of
appeal, where one exists, cannot be denied in
exercise of the discretionary powers even of
the High Court.”
Thus, when the special leave granted by this Court has not
been revoked it can exercise with respect to the appeal
before it what may be called appellate powers. While
hearing an appeal from the decision of a High Court, this
Court will, therefore, be competent to exercise only such
powers as the High Court itself could exercise in relation
to the appeal. In so far as the procedure for hearing a
criminal appeal by special leave is concerned this Court has
framed certain rules. Order XXI of Supreme Court Rules,
1950 contains those rules. Rule 23 of that Order provides
for the entering of appearance by parties in the appeal.
Rule 24 provides for the filing of statements of case by the
parties. Rule 25 provides for setting down the appeal for
hearing. Rule 26 empowers the Court to direct the
engagement of an Advocate at the cost of the Government in a
proper case where the accused person is not represented by
an Advocate ‘on record of his choice. Rule 27 provides for
giving a notice to the accused where he is not represented
on the date fixed for the hearing of the appeal and permits
the accused person if he so wishes to present his case by
submitting his argument in writing and provides for the
consideration of the written argument at the hearing. Sub-
rule (2) of that rule dispenses with necessity of production
of the accused person in custody at the hearing of the
appeal. There is no express rule which states as to what
has to be done where the accused person who is an appellant
is not present or represented at the hearing of the appeal.
Order XLV, rule 5, however, preserves the inherent power of
the Court to make such orders as may be necessary to meet
the ends of justice or to prevent the abuse of the process
of the Court. Thus this Court has the power to prevent the
abuse of its process and it will be an abuse of its process
if the appellant despite service of notice of the date of
hearing chooses to remain absent at the hearing. Now, just
as the Court can, under r. 18 of 0. XXI dismiss an appeal
for non-prosecution where the appellant refuses to take the
necessary steps for bringing the appeal to hearing, it must
be deemed to have similar power to dismiss it where the
appellant is not present or is not represented. Where the
absence of the appellant is due to the fact that he is dead
it would still be a case of non-prosecution and, therefore,
this Court would have the right and the duty to dismiss the
appeal. Since the power
262
to prosecute the appeal inhered in the appellant alone, no
one: else can claim to exercise it unless the law conferred
such a right upon that other person. This the law may do
expressly as. it has done in 0. XXII of the Code of Civil
Procedure or impliedly as it has done in s. 431 of the Code.
Apart from the fact that in a criminal matter the issue is
personal between the accused person and the State the fact
remains that the right of appeal is also personal to the
appellant. It cannot be allowed to be exercised by another
unless there is some provision in law which would permit it
to be exercised or unless such a course is permissible by
reference to a principle. There is admittedly no express
provision permitting the substitution of the legal
representatives of a deceased appellant in a criminal appeal
brought to this Court by special leave. We have, however,
to bear in mind the policy of the law as enacted in s. 431
of the Code. The policy is that every criminal appeal under
chapter XXXI will abate except an appeal from a sentence of
fine. Thus, instead of there being any principle on the
strength of which the legal heirs of a person could be
allowed to prosecute after his death an appeal brought by
him challenging his conviction and sentence of imprisonment
the policy of the law is definitely opposed to it.
Moreover, only a person who can properly represent a
deceased appellant can be allowed to be brought on record in
his place and prosecute the appeal. That is the principle
upon which the provisions of 0. XXII of the Code of Civil
Procedure are based. That again is the principle followed
by the Courts in England in allowing appeals in which the
challenge was to a fine imposed upon the appellant to be
continued by the executors and administrators of the
deceased appellant. As an instance of this would first
refer to Hodgson v. Lakeman(1). In that case Viscount
Caldecote C.J., permitted the executors of the deceased
appellant claiming an interest in the appeal against his
conviction and sentence of fine to prosecute the appeal.
The fine, though a small one, would have been a burden on
the estate and thus the executors could be said to have had
an interest in having that burden removed. This case was
distinguished in Regina v. Rowe(2) In that case the widow of
the deceased appellant sought leave to prosecute the appeal
in which he had challenged his conviction on four counts of
obtaining money by false pretences and the sentence of
imprisonment to 18 months. The ground on which the widow’s
application was supported was that the conviction against
her husband affected her chances of employment and her
position among her friends and that if interest is the test,
then the widow also had an interest. This argument was
repelled by Lord Goddard C.J. who said that the Court cannot
take notice of that because the interest she
(1) [1943] 1 K.B. 15. (2) [1955] 1 Q.B.D. 573.
263
has was not a pecuniary one. It was further urged before
the Court that where any person might be prejudiced by a
conviction against a deceased person, and an appeal was
lodged before the death of that person, the Court should
allow the appeal to be continued by that person so that if
there had been a miscarriage of justice and the heirs of the
deceased were living under the shadow of the fact that their
relative had died a convict, the interests of justice would
require that the appeal be heard. To this argument the
answer of the learned Chief Justice was that this would be a
case for making an application for a tree pardon. In the
course of the judgment he observed:
“…………… we cannot allow a widow or an
executor or an administrator of a deceased
person to appeal to this court unless they can
show a legal interest. If a person is
sentenced to pay a fine and dies having
appealed, or even if he dies after payment of
the fine-it might be immediately afterwards-it
may be that the court would allow executors or
administrators to appeal merely on the ground
that if the conviction were quashed they could
recover the fine for the benefit of th
e estate
of the deceased which they are bound to
administer. In Hodgson v. Lakeman(1) to which
our attention was called, which was a case
before the Divisional Court, but the principle
would be the same, the appellant was dead, and
the court allowed the executors to continue
the appeal because there was a pecuniary
interest. Supposing, as sometimes happens, a
man is convicted on indictment and fined pound
500; the money has to be paid, and the Crown
can recover that money whether he is alive or
dead, for it can recover it against his
estate, and, therefore, it would be an
injustice if the executors were not allowed to
appeal and to say that the conviction was
wrong, because, if it was wrong, the money
would be saved.
It may be that it is artificial to say that if
there is a pecuniary penalty an appeal might
lie, whereas if corporal punishment or
imprisonment is imposed there cannot be an
appeal, but at the same time I do not see any
ground on which we can say in the present case
that anybody has an interest. It may be that
the widow would be very glad to have her
husband’s name cleared, but we cannot take any
notice of that sentimental interest. There is
nobody affected now by the judgment of the
court because
[1943] K. B. 15.
264
the judgment was a sentence of imprisonment
and the prisoner has died. It would be a very
novel step if, in these circumstances, we said
that the court would entertain an appeal.”
In Short and Mellor’s (The Practice on the Crown Side of the
King’s Bench Division, second edition) it is stated at p.
425 that the practice does not seem to be uniform and
reference is made to some cases. In one of them-Hesketh v.
Atherton(1) the counsel was allowed to argue an appeal after
the death of one of the parties. But in Leach v. Wanstead
School Board (2) (2) wherein a conviction against the father
of a child for not sending the child to school was
challenged in appeal and the father and the child had died
in the meanwhile, the Court refused to allow the case to be
argued on the ground that there was no interest surviving.
In Siberry v. Connolly(3) where there was a claim for
seaman’s wages, the appellant’s executors were allowed to
take the place of the deceased appellant. In Constantine v.
Illingworth(4) where the defendant in a criminal case had
died, the Court ordered the case to be struck out. The same
was done in Jones v. Fallowfield(5). In Rivers v. Glasse(6)
where the respondent had died and the appellant had given
notice to the executors to support the conviction, the Court
heard and determined the case and gave costs to the respon-
dent’s executors. The position so far as the United States
is concerned is set out as follows(7):
“The death of an accused ordinarily abates a
criminal action, including review proceedings
pending at that time.
The interest of the deceased’s representatives
or next of kin in clearing his good name was
held in United States v. Mook(8) not to be
sufficient to allow the appellate court, after
the defendant’s death pending his appeal from
a conviction of violating the Interstate
Commerce Act, to decide the appeal on the
merits. The court however, added: ‘we think
it may not be amiss to say that it seems to us
that the next-of-kin of a convicted person who
dies pending an appeal have an interest in
clearing his good name, which Congress might
well believe would justify a change in the
law.”‘
Thus in that jurisdiction also the basis of intervention,
when permitted, is a survival of an interest in the heirs or
executors of the deceased. That interest would only be a
pecuniary one
(1)Short and Mellor at p. 425.(2) ibid.
(3)ibid. (4) ibid.
(5)ibid. (6) ibid.
(7) 1 L.Ed. 2nd Series, p. 1879.(8) 125 F2d. 706.
265
and where the estate is not affected by the conviction there
would be no ground for allowing the intervention of the heir
or executor. It may be that the interest of the heirs of
the deceased convict to clear his name should be recognised
and they ought to be allowed an opportunity to clear it.
But unless it is recognised by the legislature the court
cannot take notice of it. So far as the Court is concerned,
the only question arising in the appeal before us is whether
the conviction and sentence of imprisonment are correct in
law. The only person who had an interest in the appeal
before the Court in showing that both were not justified was
the appellant and since he is dead, the interest which he
had ceases to exist and cannot pass to anyone.
Another case which was referred to at the bar was The State
of Kerala v. Narayani Amma Kamala Devi(1) in which the
decision in Pranab Kumar Mitra’s case (2) was relied upon
and reference was made to Imperatrix v. Dongaji Andaji(3) In
that case also the question was whether the High Court
-could exercise its revisional powers against an accused
person even after his death. There the Court was not
concerned with its own powers with respect to a criminal
appeal brought before it by special leave.
It is then said that the applicants have an interest inas-
much as the estate of the deceased appellant would be
enriched by Rs. 40,000/- if this Court ultimately finds the
appellant innocent and if the Government, acting on the
basis of the decision of this Court which is binding upon
it, rescinds the suspension order passed against the
appellant and in conformity with it pays the arrears of
salary due to the appellant. This interest is not a direct
interest in the sense that it cannot arise out of the
decision of this Court even if it is in favour of the
appellant. The only interest which the applicants have is
a. contingent one and is not one which could flow directly
out of the ultimate decision of this Court. If we may
mention, the argument advanced in Rowe’s case(4) before Lord
Goddard C.J., that by clearing her deceased husband’s name
the widow’s chances of securing employment would improve was
not accepted as creating a pecuniary interest such as to
justify granting her permission to prosecute the appeal.
Indeed, the legislature has, by limiting in s. 431 of the
Code the survival of appeals to appeals against sentences of
fine has chosen to recognise only one kind of interest and
no other. There could be several other kinds of interest,
as was suggested during the arguments at the bar. But this
Court, in
(1)[1962] Supp. 3 S.C.R. 943. ( 2 ) [1959] Supp. 1 S.C.R.
63. (3) (1879) I.L.R. Bom. 564. (4) [1955] 1 Q. B.D. 573.
266
exercise of its inherent powers or discretionary powers,
would not be acting according to correct legal principles in
recognising a kind of interest which the legislature has not
chosen to recognise. In the circumstances, therefore, I am
clear that the applicants ought not to be granted leave to
prosecute the appeal.
Leave to prosecute appeal refused.
267