IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.              OF 2008 (Arising out of SLP (Crl.) No.82 of 2002)

             Hari Prasad Chhapolia ...Appellant

Versus

Union of India  ...Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. This appeal was filed challenging the correctness of the

judgment of a learned Single Judge of the Orissa High Court.

The  appellant-Hari  Prasad  Chhopolia  was  convicted  for

offences punishable under Sections 135(b)(1) of the Customs

Act, 1962 (in short the ‘Customs Act’) and Section 85 (ii), (iii),

(viii) and (ix) of the Gold (Control) Act, 1968 (in short the ‘Gold

Act’)    by the trial  Court.  The High Court  by the impugned

order  set  aside  the  conviction  and sentence  for  the  offence

punishable under Section 135(b)(1) of the Customs Act while

upholding  the   conviction for  the  offence  punishable  under

Section 85 of the Gold Act. Leave was granted by this Court by

order dated 17.1.2002. The matter was listed for hearing on

7.6.2007 when none appeared for the appellant.  The matter

was adjourned to 12.6.2007 when it was mentioned that the

appellant-Hari  Prasad  Chhapolia  has  died.  Learned  counsel

for the appellant wanted to take instructions and, therefore,

the  matter  was directed  to be  listed  after  three  weeks.  The

matter was listed on 17.7.2007 when on the prayer made by

the  learned  counsel  for  the  appellant  the  matter  was

adjourned by four weeks.  On 29.8.2007 the following order

was passed:

“Learned counsel for the appellant prays for time. From the order sheet, it is clear that on June  12,  2007 the matter  was called  for final  hearing  before  the  vacation  Bench.  At that time, it was stated that the appellant has expired. The learned counsel for the appellant sought  time  to  get  instructions.  Accordingly, the  matter  was  adjourned.  Again  the  matter was placed on July 17, 2007 and on that day

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also order was passed to list the matter after four weeks.  

Even  today,  learned  counsel  for  the appellant prays for time. As a last chance, list the matter after two weeks.”

2. On  25.10.2007  six  weeks’  time  was  granted  to  the

counsel  to  file  vakalatnama  and  memo  of  appearance  on

behalf of legal heirs of the deceased appellant. It is to be noted

that  by that  time no application for  bringing on record the

legal heirs of the deceased appellant had been filed. Again on

11.12.2007, at the request of learned counsel who appeared

for the deceased appellant, the matter was directed to be listed

after  one  week.  On  11.6.2008,  on  request  the  matter  was

directed to be listed today. It appears that an application has

been  filed  on  4.1.2008  for  substitution  for  bringing  legal

representatives  of  the  appellant  on  record  along  with  the

application  for  condonation  of  delay.  The  only  ground

indicated in the application seeking condonation was that the

legal heirs of the appellant were not aware that the death of

their  father has to be intimated to the counsel  at Delhi  for

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preparing  and  filing  the  application  for  substitution.  The

moment  they  knew  about  this  requirement  they  contacted

their counsel and application has been filed on 4.1.2008.   

3. Learned  Additional  Solicitor  General  appearing  for  the

respondent submitted that there is no scope for accepting the

application. Section 394 of the Code of Criminal  Procedure,

1973  (in  short  the  ‘Code’)  has  no  application  to  an appeal

before  the  Supreme  Court.  In  any  event,  time  statutorily

prescribed  is  30  days.  In  the  instant  case,  application  has

been filed nearly after one year of the death of the appellant-

Hari Prasad Chhapolia.   Therein also no explanation has been

offered as to why the application was filed after such a long

time.  Accordingly,  he  submitted  that  there  is  no  scope  for

condoning delay beyond the period of 30 days.  

4. In  State of A.P. v.  S. Narasimha Kumar and Ors. (2006

(5) SCC 683), it was noted as follows:  

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“6. In  Bondada Gajapathi Rao v.  State of Andhra Pradesh (AIR 1964 SC 1645) three-judge Bench of this  Court  was  dealing  with  the  situation  as  to whether appeal by special leave against sentence of imprisonment  abates  on  the  death  of  the accused/appellant. Three separate judgments were rendered by the Hon’ble Judges.  The principles as can  be  culled  out  from the  said  decision  are  as follows: (though rendered in the context of the Old Code are equally applicable under the Cr.P.C.).

(1) Section 431 of the Old Code  does not  apply  proprio  vigore  to  a  case  of appeal filed with the special leave of the Supreme Court granted under Article 136 of  the  Constitution  of  India,  1950  (in short  the  ‘Constitution’)  when  the appellant-accused  dies  pending  the appeal.  

(2) But  where  the  appeal  is  against sentence  of  fine,  the  appeal  may  be permitted  to  be  continued  by  the  legal representatives of the deceased appellant accused.   There  is  no provision making such  appeals  abate.  If  they  can  be continued  when  arising  under  the  Old 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.  

(3) The principle on which the hearing of  a  proceeding  may be  continued  after the death of an accused would appear to

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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.

(4) But where the sentence is not one of fine but of  imprisonment,  which on the death  of  the  accused  becomes infructuous, the sentence does not affect the property of the deceased-accused in the  hands  of  his  legal  representatives, and therefore, the appeal, in such a case, would  abate,  upon  the  death  of  the accused.  

(5) In  fact  that  the  accused  was  a government  servant  and  was  under suspension during the trial and the fact that if the conviction and sentence were set aside, his estate would be entitled to receive  full  pay  for  the  period  of suspension, cannot be said to affect his estate, because,  the setting aside of the sentence would not automatically entitle the legal representatives to the salary. It would be extending the principle applied to the case of a sentence of fine, if on the basis of it appeal against imprisonment is allowed  to  be  continued  by  the  legal representatives  after  the  death  of  the appellant and for such an extension there is  no  warrant.  Reference   was  made  to Pranab  Kumar  Mitra vs.  State  of  West Bengal and Anr. (AIR 1959 SC 144).

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5. In  S.V. Kameswar Rao and Anr. v.  State (A.C.B. Police,

Karnool District, Andhra Pradesh) (1991 Supp (1) SCC 377), it

was inter-alia observed as follows:

“5. Section 394 of the Code of Criminal Procedure reads that every  appeal  shall  finally  abate  on the death of the appellant. The proviso to that section says 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 relatives, which expression is defined by the  explanation  appended  to  this  proviso  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. In the present case, none of the relatives of the deceased within the term of the explanation to the  proviso  has  approached  this  Court  within  30 days for leave to continue the appeal. This present application is filed nearly after a period of 10 years. No explanation is given in this application for not approaching the court within that prescribed period and no sufficient cause is shown for condonation of such  undue  and  inordinate  delay  of  10  years.  A decision  of  this  Court  in  P.S.R.  Sadhanantham v. Arunachalam is relied on in the petition wherein it has been held thus: (SCC p. 145, para 7)

“Article  136  is  a  special  jurisdiction.  It  is residuary  power;  it  is  extraordinary  in  its amplitude, its limit, when it chases injustice, is the sky itself.”

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6. In Harnam Singh v. The State of Himachal Pradesh (1975

(3) SCC 343 at paras 7, 14 and 15)  it was observed as follows:

“7.  The appeal before us was filed by special leave granted under Article 136 of the Constitution and is neither under Section 411-A(2)  nor under  Section 417 nor under any other provision of Chapter XXXI of the Code. Plainly therefore, Section 431 has no application  and  the  question  whether  the  appeal abated on the death of the appellant is not governed strictly  by  the  terms  of  that  section.  But,  in  the interests of uniformity, there is no valid reason for applying to appeals under Article 136 a set of rules different from those which govern appeals under the Code  in  the  matter  of  abatement.  It  is  therefore necessary to find the true meaning and scope of the provision contained in Section 431.

Xx xx 14. If this be the true interpretation of Section 431, there is no reason why the same principle ought not to  be  extended  to  criminal  appeals  filed  in  this Court  under  Article  136  of  the  Constitution. Accordingly  the  widow  of  the  deceased  appellant who has been brought on the record of the appeal as his legal representative is entitled to continue the appeal  as the sentence  of  fine  directly  affects  the property which would devolve on her on the death of her husband.   15.  In  Bondada Gajapathy Rao v.  State of A.P.  the appellant  was convicted  by the High Court  under Section 302 of the Penal Code and was sentenced to imprisonment  for  life.  He  filed  an  appeal  in  this Court by special leave but died during the pendency

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of  the  appeal.  His  sons and daughter  applied  for substitution as his legal representatives contending that the conviction of their father had resulted  in his  removal  from  Government  service  and  if  the conviction were set aside the estate will be able to claim  the  arrears  of  salary  from  the  date  of conviction  till  the  date  of  his  death.  This  Court declined  to  permit  the  legal  representatives  to continue the appeal on the ground that the claim on the strength of which they sought permission to continue the appeal was too remote. This decision is  distinguishable  as  the  appeal  was  not  from  a sentence  of  fine  and  as  the  interest  of  the  legal representatives was held to be contingent and not direct.  Even  if  the  conviction  were  set  aside,  the legal representatives would not have automatically got the arrears of salary due to their father.”

7. In  view  of  what  has  been  stated  by  this  Court  in  the

afore-noted cases the principles embodied in Section 394 of

the Code can be pressed into service  in appeals before  this

Court.   It  is  true  that  the  period  of  30  days  has  been

statutorily fixed for making an application by the legal heirs.

In the instant case, the application was filed nearly after one

year. We need not go into the question as to whether there is

scope for condonation of delay as no acceptable explanation

has been offered for the delayed presentation.   

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8. Several times the matter was adjourned at the request of

learned counsel who appeared for the original appellant.  The

plea  that  the  legal  heirs  did  not  know  the  requirement  is

clearly without any substance. The appeal has abated on the

death of the appellant and is disposed of accordingly.  

…………………………J. (Dr. ARIJIT PASAYAT)

……………………..….J. (G.S. SINGHVI)

New Delhi, June 20, 2008      

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