Code of Criminal Procedure, 1973 – ss. 394, 421 – Composite sentence of imprisonment and fine – Death of accused pending appeal – Abatement of appeal – If any – Accused was convicted u/ss.55(a), 55(g) of the Abkari Act and was imposed imprisonment for two years and fine of Rs. One Lakh under both the sections – High Court upheld the conviction, however held that since the accused died pending the appeal, the sentence of imprisonment has become unworkable – Regarding the imposition of fine it held that the Court below committed no mistake and thus, dismissed the appeal – On appeal by the legal heir of the accused, held: 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 – Fine as per the provisions of the Code is recoverable from movable and immovable properties of the accused – Further, s.70, IPC inter alia provides that the death of offender does not discharge from the liability any property which would, after his death, be legally liable for his debts – In the present case, the appeal filed by accused in the High Court, being against sentence of fine, was required to be heard against the sentence of fine and was not to abate on his death – High Court rightly did not direct for abatement of appeal and proceeded to consider the appeal on merits – However, it does not appear that the legal heirs of accused were given opportunity to proceed with the appeal against the sentence of fine – High Court ought to have given them an opportunity to make their submissions against the sentence of fine, which fine could have been very well recovered from the assets of the accused in their hands – Judgment of the High Court set aside – Criminal appeal revived before the High Court – To be heard afresh after giving opportunity to the legal heirs of the accused to make submissions against the sentence of fine – Code of Criminal Procedure, 1898 – ss.431, 439 – Kerala Abkari Act – s.55 (a), (g) – Penal Code, 1860 – s.70.
Partly allowing the appeals, the Court
HELD: 1.1 Section 394 Cr.P.C. deals with abatement of appeals. 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. The fine as per the provisions of Code of Criminal Procedure is recoverable from movable and immovable properties of the accused. 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, be legally liable for his debts. [Paras 7, 9-11] [98-F; 99-D; 100-D-E]
1.2 The judgment in Harnam Singh v. The State of Himachal Pradesh 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. The appeal filed by accused 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 principle 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. 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. 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. Ends of justice would 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. The judgment of the High Court is set 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. [Paras 16, 18-22] [103-B-C, H; 104-A-G]
Pranab Kumar Mitra v. State of West Bengal and Another AIR 1959 SC 144 : [1959] Suppl. SCR 63 – followed.
Bondada Gajapathi Rao v. State of Andhra Pradesh AIR 1964 SC 1645 : [1964] SCR 251 ; Harnam Singh v. The State of Himachal Pradesh (1975) 3 SCC 343 : [1975] 2 SCR 823 ; Lakshmi Shanker Srivastava v. State (Delhi Administration) (1979) 1 SCC 229 : [1979] 2 SCR 348 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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