IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27" DAY OF SEPTEMBER 2010'
BEFORE
THE HON'BLE MR. JUSTICE C.R. KOMARA;S'v"V'.A:i'{iV,*«--.I:: .4'
CRIMINAL REVISION PETITION N_O.I_3O.E OE"2O'B.§g;'Q;-AUC___A 7
BETWEEN:
SRI VEERABHADRAIAH
S/O. NANJAMARIAPPA
AGED ABOUT 87 YEARS
R/A. ANNESHWARA POST
DEVANAHALLI TALUK
BANGALORE DISTRICT.
(BY SRI K. MANJUNAT:--uj,;'A.DV.);:'
AND:
SRI M. VENKATESH
S/O. MUNIYAPPA
AGED ABOUT 34 YEARS ' .
R/A. ANNESHWARA POST '«
DEVANAHALLITALUK . '
BANGALORE DISTRICT. V
...RESPONDENT
_..IBY SR1. VADIRIAI G. GHALI_KAR_., ADVOCATE FOR
' *.SRIB;SySHASHIBHUSHAN,ADVq
T'HI'S.'CRIMUINAI_'R'EVIS*I.ON PETITION IS FILED UNDER SECTION 397 READ
WITH E?ECTION'v-482 OE-C-ODE OF CRIMINAL PROCEDURE PRAYING TO SET
*a_ASIDE THE"ORDER--."OF;THE SESSIONS JUDGE, FTC-V, BANGALORE RURAL
DISTRICT, =,IN CRL_.A;F\iO.115/2006 DATED 30/4/2007 CONFIRMING THE
CONVICTION' AND THE JUDGMENT DATED 15/11/2006 PASSED BY THE CIVIL
-- ~f3UDGE._(JR.DN.")V&'1JMFC, DEVANAHALLI, IN C.C.NO.254/2005 AND TO DIRECT
THE*ACQ.U,II'TAL'OF THE PETITIONER.
"THIS'CR_IIi:INAL REVISION PETITION COMING ON FOR ORDERS BEFORE
~4"_vTHI'S.'.CO'£§RT THIS DAY, THE COURT MADE THE EOLI.OwING:-
£/
ORDER
This Criminal Revision Petition is filed under Sectiion7397
read with Section 482 of Code of Criminal Procedu.rempi9a’y–i:n’gf–.to
set aside the order of Sessions Judge, mFTC~V,_-Esa-n.g_a,lo’re’Rural
District, in Crl.A.No.115/2006 dated 3,0/4/AZAOOC7’conjfirmingg
conviction and the judgment dated..__.i5/ii,/C2006
Civil Judge (Jr.Dn.) & JMFC, Devaxn’ah:al.l,,i_, in”‘CV.iCb.”No.d254/2005
and to direct the acquittal
2. Deceasedfg –Veeifrabh_a:dra,iCah_:_w~__’wjas accused in
C.C.No.254/2005″for.Vti’:ie’?V’.._o.fferi-c§e”–pufnis.ha.ble under Section 138
of Negotiable” .pt’ct’_.vv’and_. was convicted by the trial
Court. Thervefore, appeal before the Court of
Sessions in which came to be dismissed on
Aggrieved impugned orders, this Criminal
Revi’sioi1,_s.Petit.io.n is ‘filed.
gburing’ the pendency of the proceedings, the petitioner
steps were taken to bring the legal representatives
th_e___petitioner on record, this Criminal Revision Petition was
V”«:.:d’*i-srnissed as abated on 15.6.2009. Thereafter two applications
W”
in Misc.Crl.3897/2009 and Misc.Crl.38’98/2009 were filed by the
legal representative of the petitioner, one for condoni’ng’t.the
delay in filing the application to bring the legal _
deceased petitioner on record, and another.~et–o.._:’:’b.,rVin.q «.iegal’~.
representative of deceased petitionerT__
applications were dismissed for non»-.prose’celJv_tion on”2?g~.34_,_2O1i§O.Vh
4. Thereafter by an order ‘26.7.2é()’1’Cv, the order
dated 15.6.2009 dismissing’the”petit’io’n ablated came to be
recalled by allowing Thereafter an
application in ‘ifi:le,d’ to recall the order
dated 24.3r.2()lV1’_’O’iv.j’_.,disvIfnis::.i:f1§l’–..VV’_ l_VliscH.Crl.Nos.3897/2009 and
3898/2009 for i non~.p’rcisel¢’u.tfi’§nt;” Misc.Crl.2979/2010 was
allowed on. and blothhthe applications were restored to
file.’
‘.5;pi’-halveu7heard’ the learned counsel for the petitioner as
iflweliyas the learned counsel for the respondent
“Learned counsel for legal heirs of the deceased
.A’-4″_’-peti«t–ion’§er has filed an application to bring legal representatives
.all*–._of”d.e.ceased petitioner on record to contest the matter. He has
2/’
also filed an application for condoning the delay in filing the said
application. These applications are opposed by the responid.ent.
7. The point that arises for my conside_ra-tionftirifé
petition is: ‘
“Whether the LV:R.s
Veerabhadraiah be brought ohxrecoprd if
8. MY answer to above.pointAui.s.VVas._u’nderi.i
The nature of this is same as that
of Court of Appeal, such prevent gross or
palatable failure ‘._Il:_g_.shou._l’o'[not exercised in such a
way as to right is excluded by the
Code.
9. It isl”co_n’te.n’.dedv. the learned counsel for the
:_responderi’t sthaigx.afterth’e”‘abatement, the amount in deposit has
rei_ea.sevd;:to'”the:,legaI heirs of the accused. It is difficult to
‘ “»._..’accept’t_he conteintilon of the learned counsel for the respondent
-i.f.f’j:.b.eca,use thelegal representatives of deceased accused cannot be
brought on record as legal heirs.
£5
10. Learned counsel for the petitioner submits that legal
representatives of accused cannot be convicted upV.on_rt_he
judgment of conviction passed by the Court below;’_:’i’n«’..;1_ievv:
reported judgment in STATE OF KERALA 19621.sc.tA’i=§AGEf 1153;)”
(v 49 c 222) in the case of smrEt.lg¢F7.KeRAlLAglc.g’v;2st’
NARAYANI AMMA KAMALA DEVI -AND'”ofmaR:;;’l’%’ty:r$iereilfi: thheiyi.
Hon’ble Supreme Court has held .
(3) The principalaptinAt”.V_urgevd”~~l.rl»._§up_port of the
appeal is that after the ‘l’d.eal.th fof.–‘»t.h’§.’.j’V_’a_c.cused no
revision applic.a«’tiori_lay;’toyth,e HyiAg~lh_jCVo’urV§t against the
order of –,C0.ur:t Vnialilntaining his
convic%’r;”ionl.V co;un_’sel_ the appellant has
based of this contention on
the principle . in the maxim action
_ person’al.i.s moriturlcuni persona and has urged that
. Clexcept iwhe’re«_the statute has stepped in to make any
g_’_s*p:e_ciialT’p:_r’ov’ils.i:o’n.s no proceedings either against the
.accu*s’edV ‘ behalf of the accused can be
entértai–.nedv”‘or continued in the Court in respect of
crime said to have been committed by a person
V”-a_af.te”r”A_«the death of such person. He has drawn our
attention to Salmond’s observations in his
“””3urisprudence’ Eleventh Edition, page 442: That
it criminal responsibility must die with the wrongdoer
himself, and has urged that as all criminal
5/
proceedings are personal actions, proceedings in
connection with a Crime can, in the absence of any5.__7,
statutory provision, neither be commenced..__’44’or’~.7.
continued against an accused person or on
unless he is in existence. It may be ,noteg”‘h’owfevé’r
that Salmond himself goes on to.,A_say.inj;
the matter that the modern opin..ioi1._ reje>C:t1;S,’A’th’*eA*:_”–~ if
conclusion based on the ‘re.cei.ved fmaxirn’-,aE:~tio’n”
personalis moritur cum persona,-.t,ha.t_»alllhactioynsgvvfor
penal redress must broAug§hAtl”‘ ‘4aga’i”nst a living
offender and must die more
important to notice is;_’A’th:at~V:::v.:_§;«..},,e¢g notfvconcerned
here with the .pro:céedings being
continued nst person but with
the a _cr.iVm’iVnal proceeding has
ended person, any action
can be taken in the respect thereof. On this
quesétglonthecommon law maxim is of little, if any,
“Vuse’*andi.,’tvhe”answertothe question must be found in
oth’er.priovisioris~ of law.
r v.(3ia)R.5fhe,:..C’rimina| Procedure Code gives a right
of ap–pea.,i’to. the convicted person in certain cases. If,
C7-‘«4.__”-after the__’3conviction and before an appeal has been
‘fllfiledlthe convicted person dies, there is no provision
for any appeal on his behalf. What will happen when
-after an appeal has been filed by the convicted
person, he dies, is provided for in 8.431 of the
Criminal Procedure Code. That section provides that
bx
every appeal against acquittal and every other
appeal under Chapter XXXI except an appeal from
sentence of fine shall finally abate on the deaVt.h_”-of”-the-.V”‘~
the appellant. The High Court or the Court
Sessions cannot therefore exercise its_-‘a’p~pie~:vla’t’e
jurisdiction in favour of a dead jpers_onge’ven_ if
appeal has been filed by him, exace_p’t~_ViAn an”V’:ap-p.eal’V
from a sentence offine. A’
(4) As regards the revisiorialjurisdiction of the
High Court there is no tQriziyisieoiilvsgyiii?i.i._iVa»ftoy S.43Vl1A.”i\lor
is there any provision” revisional
application can_be__or irflrespect of
an order of the :co’nvi’cted person is
dead. We distinction
that wljiillewlthieiappelllateljtirisdictlion can be exercised
only after the convicted person~
or against’a_niio,rder_ of’.a’ciji’i.:ittal under S.41 or S.417,
theregis no sVuchV_VIiri1ita’tio.n on the Court’s revisional
.~-.,_ajlurisdicti,0.n.”i- H lllll I
ii1.V”l’–._ApVVpi:y_i’_ng’lithe principle laid down in the above
V’v:*ymentioned””rulingand also when there is no specific provision to
representatives of the deceased petitioner-
“person on record in the Court of revision,
‘%”””4x’__’MiscfC’rl’.3897/2009 and Misc.Crl.3898/2009 filed by legal
u”~,>_””re3presentative of the deceased petitioner–convIcted person
W’
deserves to be rejected. Accordingly, these two applications are
rejected.
12. The amount in deposit shall be disburséA¢’:*’to:~A.f:iie 9%
representative of the deceased pe,tition’e>r’c_’o:n’~.;..,_propcer
identification.
13. Learned counsel for thei.–reSyp.o’fi’dent’submits that the
death cannot discharge any Learned
Counser for the re..SP§m’d.e”ti;AAéubhdiiél’t:l”,3’tW\»i1e;..iV’intends to recover
the remainingi. provisions of
procedure of liberty to recover the
remaining _;with law. Learned counsel for
the respondenti5’ijb.n~ii’ts_”t’h_a’t~.’he has already filed an application
for recovery’ of rernai’n.in_g__amount before the Court below. The
same shall of by the trial Court in accordance with
law.
with “th_e’se observations, this Criminal Revision Petition is
y d’ispC–S’ed oi”.
Sdgifw
EUDQE