IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 4477 of 2006()
1. MANI MADAVALAPPIL
... Petitioner
Vs
1. C.I.OF POLICE, NILESHWAR
... Respondent
For Petitioner :SRI.M.SANTHOSHKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :21/12/2006
O R D E R
K. HEMA, J.
----------------------------------------
Crl.R.P. No.4477 of 2006
-----------------------------------------
Dated this 21st day of December, 2006.
ORDER
Will an appeal filed against the conviction and sentence,
which includes fine also, abate on death of appellant, if no legal heir
obtains leave of court to continue appeal? This short question is to be
answered in this revision.
2. This revision is filed by the son of the deceased accused.
The accused was convicted and sentenced by learned Assistant Sessions
Judge for offence under section 354 of the Indian Penal Code to undergo
rigorous imprisonment for a period of 2 years and to pay a fine of
Rs.30,000/- and in default of payment of fine, to suffer simple
imprisonment for a period of four months. It was also ordered that, on
payment of fine by the accused, Rs.25,000/- shall be paid to PW8, the
victim.
3. The deceased-accused was originally charge-sheeted for offence
under section 511 of 376 and 377 of Indian Penal Code on the allegation
that such offences were committed against PW8. After trial, on an analysis
of the evidence adduced in the case, the trial court found the accused
guilty of offence under section 354 of IPC and convicted and sentenced
him under the said section. An appeal was filed before Sessions Court
against the conviction and sentence. On a representation made that
[Crl.R.P.4477/06] 2
appellant expired on 26.6.2005, as evidenced by the death certificate
also, learned Additional Sessions Judge held that the appeal abated.
4. Learned counsel appearing for the revision petitioner,
submitted that the appeal does not abate in this case, in view of
section 394(2) of the Code of Criminal Procedure (‘the Code’ for
short). It was strongly contended that the court is bound to dispose
of appeal on merit and not dismiss the appeal as abated. A reading of
section 394 shows that every appeal filed under section 377 or 378
shall finally abate on the death of the accused, except an appeal from
a sentence of fine.
5. Learned Public Prosecutor, however, argued that by
virtue of sub-section (2) of section 394, if appellant dies during
pendency of appeal, if the near relative or relatives of the appellant
do not apply to appellate court for leave to continue the appeal
within 30 days of the death of the appellant, the appeal shall abate
unless leave is granted by court to continue appeal. The proviso to
sub-section (2) of section 394 reveals that where an appeal is filed
against conviction and sentence of imprisonment and the appellant
dies during the pendency of the appeal any of his near relatives may,
within 30 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. Therefore, it may apparently appear that
unless application is filed by the near relatives and leave is granted
as stipulated in the proviso, the appeal shall abate, it is argued.
6. To appreciate the contention raised, it is necessary to
read section 394 of the Code. I shall extract section 394 of the Code
as hereunder:
[Crl.R.P.4477/06] 3
“394. Abatement of appeals.–
(1) Every appeal under section 377 or
section 378 shall finally abte on the death of
the accused.
(2) Every other appeal under
this Chapter (except an appeal from a
sentence of fine) shall finally bate 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.”
7. A close reading of the proviso to sub-section (2) of
section 394 shows that the said provision applies only in cases where
the sentence is of imprisonment alone. It is only in cases in which
the sentence imposed is of imprisonment alone that the appeal shall
finally abate on the death of the appellant in the absence of the near
relatives of the appellant availing of the benefit under the proviso to
section 394(2). However, in cases where there is sentence of fine,
appeal shall not abate on death of appellant whether the near
relatives apply for leave to continue appeal or not. The proviso to
section 394(2) applies only in cases where there is sentence of
imprisonment alone. If the sentence is of fine or the sentence is of
imprisonment and fine, appeal shall not abate on the death of
appellant, even if the near relatives do not apply for leave under the
proviso to section 394(2) of the Code. Therefore, the appellate court
[Crl.R.P.4477/06] 4
is bound to dispose of on merit appeals filed against sentence of fine.
Such appeals shall not abate on death of appellant, irrespective of
whether the legal heirs apply for leave or not under the proviso to
section 394(2). The order passed by lower appellate court that the
appeal abated on the death of appellant is therefore, unsustainable,
since sentence imposed in this case includes fine also.
8. I gain support from the dictum laid down in the
decision reported in State of Andhra Pradesh v. Narasimha
Kumar [2006 (3) KLT 505], which was cited by learned counsel for
petitioner. The relevant portion from the said decision can be
extracted herein:
” It t 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 S.431 does not contain the
word “only”. . . . . . . . . . . . . Whether or not the
sentence of fine is combined with any other
sentence can make no difference to the application
of that principle.”
9. On going through the dictum laid down in the said decision,
it is clear that only in cases where there is an appeal from
imprisonment alone that the appeal will stand finally abated. In cases
where fine is imposed, appeal will not abate on the death of
appellant.
10. It was pointed out that this revision is filed by son of the
appellant and no application is filed by him for grant of leave to
[Crl.R.P.4477/06] 5
continue the proceedings. Learned counsel appearing for revision
petitioner, submitted that this court can exercise power under
section 397 of the Code suo motu, to correct an illegality. Hence, I
make it clear that I have exercised only the suo motu power under
section 397 of the Code, since the illegality pointed out by
appellant’s son is a glaring one and it deserves to be corrected by
exercising revisional powers. However, this will not stand in the
way of revision petitioner approaching lower appellate court to seek
appropriate order to continue the appeal, if so advised. Whether such
application is filed or not, the appeal shall be disposed of by the
lower appellate court, only on merit.
In the result, the order under challenge is set aside. The lower
appellate court is directed to take the appeal on file and dispose of the
same, in accordance with law.
This revision is allowed.
Sd/-
K. HEMA, JUDGE.
Krs.