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PETITIONER: THE STATE OF KERALA

       Vs.

RESPONDENT: NARAYANI AMMA KAMALA DEVI

DATE OF JUDGMENT: 19/03/1962

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS KAPUR, J.L. DAYAL, RAGHUBAR

CITATION:  1962 AIR 1530            1962 SCR  Supl. (3) 943  CITATOR INFO :  RF         1964 SC1645  (16)  F          1973 SC  84  (7)

ACT: Criminal Trial-Conviction-Death of accused-Revision to  High Court,  after  the  death of the  accused  if  maintainable- Appellate  and Revisional jurisdiction-Distinction  between- Code  of Criminal Procedure, 1898 (Act V of  1898),  ss.431, 439.

HEADNOTE: One  N,  a cashier of a bank, was convicted  of  an  offence under  s. 381 of the Indian Penal Code on a charge of  theft of a certain amount belonging to the Bank and was  convicted to  one  year’s rigorous imprisonment.  His  appeal  to  the Sessions  Court was unsuccessful.  On that very date  within few  hours  after the pronouncement of the judgment  by  the Sessions  Court he died.  A revision petition was  filed  in the  High Court by his wife and his two minor sons under  s. 439  of the Code of Criminal Procedure.  The High Court  ’of Kerala  set  aside the conviction of the  deceased  accused. The  State  of Kerala came up in an appeal  to  the  Supreme Court  by  a  certificate granted by the  High  Court.   The question is whether an application for revision under s. 439 of  the Code of Criminal Procedure could be  entertained  by the High Court after the death of the accused person against whom the order was made. Held, that in a proper case the High Court can exercise  its power of revision of an order made against an accused person even after his death, and the High Court was right in 944 holding   that  the  application  for  revision   could   be entertained under s. 439 of the Code of Criminal Procedure. Held, with regard to the revisional jurisdiction of the High Court  there is no provision similar to s. 431 of the  Code, for is there any provision whether a revisional  application can  be  or  cannot  be  made in  respect  of  an  order  of conviction  when the convicted person is dead.  The  opening words  of  s.  439  of the Code,  produce  the  result  that revisional  jurisdiction can be exercised by the High  Court by being moved either by the convicted person himself or  by

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any  other  person  or sue motu, on the  basis  of  its  own knowledge  derived from any source whatsoever without  being moved by any person at all.  All that is necessary to  bring the  High Court’s powers of revision into operation is  such information as makes the High Court think that an order made by a Subordinate Court is fit for the exercise of its powers of revision. The  important dictinction between ss. 431 and 439  is  that while the appellate jurisdiction can be exercised only after an  appeal  is filed by the convicted person or  against  an order  of acquittal under ss. 411 or 417, there is  no  such limitation on the court’s revisional jurisdiction. Imperatrix  v.  Dongaji  Andaji,  (1878)  I.L.R.  Bom.   564 referred to. Pranab  Kumar Mitra v. State of West Bengal, (1959) Supp.  1 S.C.R. 63, relied on.

JUDGMENT: CIVIL   APPELLATE JURISDICTION : Criminal Appeal  No.  55 of 1961. Appeal from the judgment and order dated October 5, 1960, of the Kerala High Court in Criminal Revision Petition No.  337 of 1959. G.S. Pathak and V. A. Seyid Muhammad, for the appellant. C.K.  Sivasankara Panickar, B.  Mahalingier and M. B.  K. Pillai, for the respondents. 1962.  March 19.  The Judgment of the Court was delivered by DAS GUPTA, J.-Can an application for revision under s.439 of the Criminal Procedure Code be entertained by the High Court after the death of 945 the accused person against whom the order was made ? That is the important question raised in this appeal.  Gobindankutty Nair,  a Cashier of the Trivandrum Branch of the State  Bank of  India  was convicted by the  Sub-Divisional  Magistrate, Trivandrum,  of an offence under section 381 of  the  Indian Penal Code on a charge of theft of an amount of Rs. 10,000/- belonging to the Bank.  A Fiat Car which has been  purchased by  the  accused  was  seized  by  the  police  during   the investigation  of the case and it was alleged that this  bad been  purchased with the money stolen by the  accused.   The car  was  sold under the orders of the Court  and  the  sale proceeds  deposited in Court.  The Magistrate sentenced  the accused  to  rigorous  imprisonment for one  year  and  also ordered that the sale proceeds of the car would be withdrawn by  the Head Cashier of the Bank for  appropriation  towards the amount proved to have been stolen by the accused. The accused’s appeal to the Sessions Court was unsuccessful. Though  no separate order was made by the Sessions Court  in respect of the Magistrate’s order for withdrawal of the sale proceeds of the car by the Head Cashier, that order was also by   implication  affirmed  by  him.   The  Sessions   Court delivered judgment on August 13, 1959, and on that very date within  a  few hours of the pronouncement  of  judgment  the accused Gobindankutty Nair died.  On November 11, 1959,  the widow  of  the accused and his two minor sons  presented  an application under s .439 in the High Court, of Judicature of Kerala  against this judgment of the Sessions  Court.   They prayed  that  the order  of conviction and  sentence  passed against the  accused and also the order as regards the  sale proceeds  of  the  car should be set  aside.The  High  Court rejected  a preliminary contention raised on  behalf or  the State of Kerala that the accused

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946 Gobindankutty   Nair  having  died,  this  application   for revision  was  not  maintainable.  It  then  considered  the application  on its merits and set aside the  conviction  of the accused and also’ the order directing the payment of the sale  proceeds  of the motor car to the Head  Cashier.   The High   Court  however  granted  a  certificate  under   Art. 134(1)(c)  of the Constitution that this was a fit case  for appeal to this Court and on that certificate this appeal has been preferred by the State of Kerala. The  principal point urged in support of the appeal is  that after  the death of the accused no revision application  lay to  the High Court against the order of the  Sessions  Court maintaining   his  conviction.   Learned  Counsel  for   the appellant  has  based  his  argument  in  support  of   this contention  on  the principle embodied in  the  maxim  actio personalis  moritur cum persona and has,  urged  that-except where  the  statute  has  stepped in  to  make  any  special provisions  no proceedings either against the accused or  on behalf of the accused can be entertained or continued in the Court in respect of any crime said to have been committed by a  person after the death of such person.  He has drawn  our attention  to Salmond’s observations in his  ,Jurisprudence" Eleventh Edition, page 442 That criminal responsibility must die  with  wrong  door himself, and has urged  that  as  all criminal  proceedings are personal actions,  proceedings  in connection  with  a  crime  can,  in  the  absence  of  arty statutory  provision,  neither  be  commenced  or  continued against  an accused person or on his behalf unlead he is  in existence.   It  may be noted however that  Salmond  himself goes on to in discussing the matter that the modern  opinion rejects  the  conclusion based on the received  maxim  actio personal is moritur cum persona, that all actions for  penal redress  must be brought against a living offender and  must die with him.  What is more important to notice is: that  we are not concerned here with the question of                             947 criminal proceedings being continued or commenced against  a person  but  with  the  question  whether  when  a  criminal proceeding  has ended unfavourably to an accused person,  an action  can  be taken in the Court in respect  thereof.   On this question the common law maxim is of little, if any, use and  the answer to the question must be found in other  pro- visions of law.  The Criminal Procedure Code gives a right of appeal to  the convicted person in certain cases. if, after the  conviction and  before  an appeal has been filed the  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 s. 431 of the Criminal  Procedure Code.  That section provides that  every appeal  against  acquittal  and  every  other  appeal  under Chapter XXXI except an appeal from a sentence of fine  shall finally abate on the death of the appellant.  The High Court or  the  Court  of Sessions cannot  therefore  exercise  its appellate jurisdiction in favour of a dead person even if an appeal  has  been filed by him, except in an appeal  from  a sentence of fine.’ As  regards  the revisional jurisdiction of the  High  Court there  is no provision similar to s. 431.  Nor is there  any provision whether a revisional application can be or  cannot be  made  in  respect of an order  of  conviction  when  the convicted  person is dead.- We cannot but notice the  impor- tant  distinction that while the appellate jurisdiction  can be exercised only after an appeal is filed by the  convicted

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person  or against an order of acquittal under s. 411 or  a. 417,  there is no such limitation on the Court’s  revisional jurisdiction. The opening words of s. 439 of the Criminal Procedure  Code, viz.,  "’in the case of any proceedings the record of  which ha  i been, called for by itself or which has been  reported for orders or 948 which otherwise comes to its knowledge", produce the  result that  revisional jurisdiction can be exercised by  the  High Court by being moved either by the convicted person  himself or by any other person or suo motu, on the basis of its  own knowledge  derived from any source whatsoever without  being moved by any person at all.  All that is necessary to  bring the High Court’s powers of revision into’ operation is, such information as makes the High Court think that an order made by a Subordinate Court is fit for the exercise of its powers of revision.  But, says Mr. Pathak, look " at the words that follow in this section stating what powers can be exercised. These  words,  viz., the  High Court may in  its  discretion exercise any of the powers conferred on a court of appeal by es. 423, 426, 427, and 428..:.:... make it clear that a High Court’s  power of revision does not extend to anything  more than  what  the court of appeal can do.  When  therefore  a. court  of  appeal cannot give any relief in  respect  of  an order of conviction and sentence of fine or any other  order made  against an accused person after the accused person  is dead,  how  can  the High Court in revision  give  any  such relief  after  the accused person’s  death.   This  argument confuses  the  definition of the extent of  power  with  the conditions  for the exercise of the power.  The;  conditions for  the exercise of the power of revision are laid down  in the  opening clauses of s. 439 which has just been  set  out above,  while  the  next  clause that  the  High  Court  may exercise  any of the powers conferred on a court  of  appeal under a. 423, a. 426, s. 427 and o. 428......... define  the extent of the power.  The fact that the extent of the  power of a court in revision does not extend-except as regards the power of the courts by s. 439 to enhancement of the sentence to  more  than what the appellate court’s  power,  does  not effect  the  position  that while  the  conditions  for  the exercise of the powers of courts of appeal is  949 that  an appeal must be preferred by the  convicted  person, that  condition  is  conspicuous by its  absence  where  the conditions  of  the exercise of the powers of  revision  are laid down in s. 439. It  appears to us therefore that in a proper case  the  High Court  can exercise its power of revision of an  order  made against an accused person even after his death. This  view  was  expressed  by  the  Bombay  High  Court  in Imperatrix v. Dongaji Andaji(l). The direct question in that case  was  whether the appeal lodged by a  convicted  person abates on his death.  Melvill J. and Kemball J. differed  on this question.  Melvill J. being of the opinion that on  the death  of the appellant the appeal abated while  Kemball  J. came  to a contrary conclusion.  Chief Justice Westropp,  to whom  the case was referred agreed with Melvill J. that  the appeal abated.  All the three learned Judges appear to  have however  been of opinion that the death of convicted  person would be no impediment in the way of the court’s  exercising its power of revision.  Melvill J. observed               "In a recent case the Chief Justice and myself               did  consider  the proceedings in  a  criminal               case after the death of the convict.  But  the

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             proceedings  in that case had been called  for               under  s. 297, and we were sitting as a  Court               of  Revision.  No person has any right  to  be               heard before the High Court in the exercise of               its  powers  of revision.  The  Court  is  not               supposed  to be acting on the  application  of               the convict, but in the exercise of its  power               of  supervision over subordinate  courts,  and               with  a  view to correcting their  errors.   I               think  that we should have power to  interfere               in  the present came, as a Court of  Revision,               if we saw any error, in law, invalidating  the               conviction, or if the sentence were too severs               (1)   (1878) LL.R. (Bom.) 564.               950               for  the  offence which has been held  by  the               Sessions Court to be proved.  But I can see no               error  in law, nor is the sentence  excessive,               if  the  facts be as the  Sessions  Court  has               found them.  We cannot therefore exercise  our               powers of revision.......... "               Kemball J. has also observed               "  I  have  no  doubt  that,  as  a  Court  of               Revision, we could dispose of this case               Chief  Justice Westropp, after expressing  his               opinion that the appeal has abated, went on to               observe : .               "I think that the High Court has, however, the               right  to call for the record,’ and make  such               order  thereon  as it may deem to  be  due  to               justice.  I do not understand that my  opinion               is required by my brothers Melvill and Kemball               on the question whether such a case has,  been               made as to render it desirable that the record               should be brought up." It  is  thus clear that though apparently the  High  Court’s powers of revisions were not exercised in that case, all the three  judges agreed in thinking that in a proper case  this could  and  should  be  done even after  the  death  of  the convicted person. This  case  was considered’ by this Court  in  Pranab  Kumar Mitra  v.  The State of West Bengal (1).   The  question  in Pranab Kumar Mitra’s case was, whether where the accused has been sentenced to &:fine and imprisonment till the rising of the Court and the convicted person had served out his  nomi- nal  sentence of imprisonment and died when his  application in  revision  was pending before the High  Court,  the  High Court  could exercise its powers of revision in  respect  of the  question of conviction and sentence.  It was hold  that such powers could be (1)  (1959) Supp.  1 S.C.R. 63. 951 exercised and could not be limited on the analogy of s.  431 of  the Code which did not apply to a revision case.   After referring  to  the  decision of the  Bombay  High  Court  in Dongaji  Andaji’s Case (1) and the distinction drawn by  the learned  Judges  therein between the High Court’s  power  to deal  with an appeal on the death of a convicted person  and its  power  to exercise revisional jurisdiction  even  after such  death,, this Court went on to observe at p.70  of  the Report               "We may assume that the Legislature was  aware               of  the  decision of the Bombay,  High  Court,               referred to above, when it ’enacted s. 431 for               the  first time in the Code of 1882.   If  the

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             Legislature  intended that an  application  in               revision  pending in a High Court,  should  be               dealt  with on the same footing as  a  pending               appeal it would have enacted accordingly.  But               in  the absence of any such enactment, we  may               infer that the power of revision vested in the               High  Court under Chapter XXXII of  the  Code,               was  left untouched-to be exercised  according               to the exigencies of each case." It appears, to us that though in Pranab Kumar’s Case(2) this Court was directly concerned with the effect of a  convicted person’s  death  on a pending  revisional  application,  the judgment   also  expresses  the  view  that   a   revisional application  could be entertained even after the  death  the convicted  person.   On  this authority  and  also  for  the reasons  discussed earlier, we have come ’to the  conclusion that   the  High  Court  was  right  in  holding  that   the application for revision could be entertained under s.   439 of the Code of Criminal Procedure. We  see no reason also to interfere with the order  made  by the High Court in exercise of such power of revision. The appeal is accordingly dismissed. Appeal  dismissed. (1) (1878) I.L.R. (Bom.) 564.                 (2) (1959) Supp.  1 S.C.R.63 952