16 March 1964
Supreme Court
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BONDADA GAJAPATHY RAO Vs STATE OF ADHRA PRADESH

Case number: Appeal (crl.) 179 of 1961


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PETITIONER: BONDADA GAJAPATHY RAO

       Vs.

RESPONDENT: STATE OF ADHRA PRADESH

DATE OF JUDGMENT: 16/03/1964

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. HIDAYATULLAH, M. MUDHOLKAR, J.R.

CITATION:  1964 AIR 1645            1964 SCR  (7) 251  CITATOR INFO :  D          1975 SC 236  (15)

ACT: Criminal Trial-Appellant sentenced to imprisonment for life- Death  during  the  pendency  of  appeal-Heirs  whether  can prosecute appeal-Code of Criminal Procedure, 1898, (Act 5 of 1898), s. 431, 435, 439-Constitution of India, Art. 136.

HEADNOTE: The appellant was convicted under section 302 of the  Indian Penal  Code  and sentenced to imprisonment for life  by  the High  Court for the offence of the murder of his  wife.   He was  granted special leave to appeal by this Court.   During the  pendency  of the hearing of this appeal  the  appellant died.  After his death his sons and daughter applied to this Court for permission to continue to prosecute the appeal. It was pleaded by the legal representatives of the appellant that though that sentence of imprisonment could no longer be executed, it still affected the property of the deceased and the legal representatives were, therefore, interested in the appeal  and  should  be  permitted  to  continue  it.    The appellant,  who  held  a high office in  the  Government  of Andhra  Pradesh had been suspended during the  investigation of the charge against him and he was dismissed from  service under certain service rules on his conviction.  During  this time  the appellant had only been given a  small  allowance. On these facts it was pleaded that if the conviction was set aside,  the  estate  of the deceased would  be  entitled  to receive the full salary from the Government. Held (Per Sarkar, J.): (i) Neither s. 431 nor the cases men- tioned  can  be said to apply to the  present  case  proprio vigore,  for the present is not an appeal under the code  of criminal procedure which is dealt with by s. 431 nor is it a revisional  application  like  the one  which  came  up  for consideration in Pranab Kumar Mitra’s case, while as for the English case, it is only of persuasive value. Pranab Kumar Mitra v. The State of West Bengal, [1959] Supp. 1  S.C.R.  63 and Hodgson v. Lakeman, [1943] L.R.  K.B.  15, distinguished. (ii).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. This  principle  applies  in  appeals,  revisions,  and   in petitions under Art. 136 of the Constitution. A  sentence of fine no doubt affects the property.   In  the present  case, however, the sentence was not of fine but  of imprisonment  which on the death of the accused  has  become infructuous.  In the present case the effect of the sentence imposed  in  this case being set aside  would  not  directly entitle the legal representatives to the salary.  They  will have to obtain necessary orders from the Government for  the purpose. 252 Held (Per Hidayatullah, J.): (i) This was an appeal  against a  sentence of imprisonment and an appeal of this  character would normally abate on the death of the appellant because a criminal prosecution is concerned primarily with the punish- ment  of an offender and not with the trial of  an  abstract issue about the truth or falsity of a prosecution case.  The same  principle  must  apply to  appeals  after  conviction, except in so far as a    judgment  already rendered  touches assets which would come  to the legal representative.  In so far as personal punishment    (other   than   a   fine)   is concerned that stands dissolved by the death of the offender and  an  appeal  to get that punishment  set  aside  becomes infructuous and abates. Pranab Kumar Mitra v. The State of West Bengal, [1959] Supp. 1  S.C.R.  63,  Pritam Singh v. State,  [1950]  S.C.R.  453, distinguished. Hodgson  v.  Lakeman, [1943] L.R.K.B. 15,  Baghis  v.  Rowes [1955] 1 Q.B.D. 573, referred to. (ii).The  principle laid down in Pranab Kumar Mitra  v.  The State of..West Bengal and Another and in Pritam Singh v. The State has.no application to the present matter because there is  no  analogy  between an appeal by special  leave  and  a revision  under  the code.  The present case is not  a  case where  the  legal  representatives after the  death  of  the offender  have  to  meet  the liability of  a  fine  or  are required to protect the assets which they claim should reach them.   In the present case no claim of the  petitioners  is jeopardized  directly,  by  the judgment.   Their  claim  is dependent upon the administrative action of Government which may  not  proceed upon the result of  criminal  prosecution. This  appeal  was  only concerned with  the  correctness  or otherwise of the conviction and not with any monetary claims depending  upon  the  result  of  the  appeal.   In  such  a situation  the  ordinary  rule that  a  criminal  proceeding against  a person comes to an end on his demise  must  apply also  to special appeals in this court, such as  this,  even though the provisions of the Criminal Procedure Code may not be directly applicable. Held (Per Mudholkar, J.): (i) The decision of this court  in Pranab Kumar Mitra v. The State of West Bengal has no, bear- ing  upon an appeal brought to this court by special  leave. It is no doubt true that the power confer-red by section 435 of  the Code on the High Court and certain other courts  and by  Article  136  of  the  Constitution  on  this  Court  is discretionary.  Under section 439 of the Code the High Court can  exercise  any  of the powers conferred on  a  court  of appeal by sections 423, 426, 427 and 428 or on a court by s. 338  and has also the power to enhance the sentence.   Under Section  435 of the Code, the High Court can suo  motu  call for  the record of any inferior court but this power  cannot

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be  exercised  by  this  court  under  article  136  of  the Constitution.   Therefore there is a fundamental  difference between  the  power of the High Court in  revision  and  the power of this Court in Art. 136 of the Constitution. Pranab Kumar Mitra v. The State of West Bengal, [1959] Supp. 1 S.C.R. 63, distinguished. (ii).In a criminal matter the issue is personal between  the accused person and the State and the right of appeal is also personal  to the appellant.  There is admittedly no  express provision    permitting    the   substitution    of    legal representatives  of  a  decreased appellant  in  a  criminal appeal brought to this Court by 253 special  leave.  The policy of the law discernible  from  s. 431  of the Code has to be borne in mind.  The policy  under section 431 of the Code is that every criminal appeal  under chapter XXXI will abate except an appeal from a sentence  of fine.    There   is  no  provision  which   prescribes   the continuation of the appeal on the death of the appellant  in cases where the sentence is of imprisonment. The  interest  of the legal representatives in  the  present case  is not a direct interest in the sense that  it  cannot arise  out  of the decision of this court even if it  is  in favour  of  the  appellant.  The  only  interest  which  the applicants  have  is a contingent one and is not  one  which could  flow  directly out of the ultimate decision  of  this Court. Hodgson  v.  Lakeman, (1943) L.R.K.B. 15,  Regina  v.  Rowe, (1955)  (1)  Q.B.D.  573,  Hesketh  v.  Atherton,  Leach  v. Wanstead  School Board, Siberry v. Connolly, Constantine  v. Illingworth,  Jones v. Gallowfield, Rivers v.  Glasse,  (all cited in Short and Mellor, Practice on the Crown Side of the King’s  Bench Division 2nd Ed. at p. 425), United States  v. Mook,  125  F2d 706, The State of Kerala  v.  Narayani  Amma Kamala  Devi,  [1962] Supp. 3 S.C.R. 943 and  Imperatrix  v. Dongali  Andaji,  (1879) I.L.R. Bom. 564,  referred  to  and discussed. (iii).....The Legislature has by limiting in section 431  of the  Code  the  survival  of  appeals  to  appeals   against sentences  of fine has chosen to recognise only one kind  of interest  and  no  other.  This Court  in  exercise  of  its inherent powers or discretionary powers would not be  acting according to correct legal principles in recognising a  kind of  interest  which  the  legislature  has  not  chosen   to recognise.  In the circumstances the applicants ought not to be granted special leave to prosecute the appeal.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 179  of 1961.   Appeal by special leave from the judgment and  order dated October 31, 1960, of the Andhra Pradesh High Court  in Criminal Appeal No. 161 of 1960. K.   R. Chaudhuri, for the appellant. A.   S. R. Chari, B. R. G. K. Achar, and R. N. Sachthey, for the respondent. March 16, 1964.  The following judgments were delivered- SARKAR, J.-This is an appeal from a sentence of imprisonment for  life imposed on the appellant upon his  conviction  for the offence of the murder of his wife.  The appeal was filed with the special leave of this Court granted under Art.  136 of  the  Constitution  but the appellant  died  pending  the appeal.   His  legal  representatives  now  seek  leave   to continue the appeal.

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There  would seem to be authority for the  proposition  that revision  petitions and some appeals from sentences of  fine might be continued by his legal representatives on the death 254 of  the  accused pending the proceeding: see s. 431  of  the Code  of  Criminal Procedure and Pranab Kumar Mitra  v.  The State of West Bengal(1).  It appears that in England appeals from similar sentences are permitted to be continued by  the executors   of  the  deceased  appellant:  see  Hodgson   v. Lakeman(2).   It is true that neither s. 431 nor  the  cases mentioned  can be said to apply to the present case  proprio vigore,  for  the present is not an appeal  under  the  Code which  is  dealt  with  by s. 431 nor  is  it  a  revisional application like the one which came up for consideration  in Pranab Kumar Mitra’s case, while as for the English case, it is  only of persuasive value.  All the same however I  think it must now be held that appeals from sentences of fine  may be permitted to be continued by the legal representatives of the deceased appellant.  First, I find no, provision  making such  appeals abate.  If they can be continued when  arising under  the 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.  It is true that the Code of Criminal Procedure which creates the revisional powers of a Court provides that such  powers may be exercised suo motu but it does not  seem to  me that Pranab Kumar Mitra’s case(1) was based  on  this for  on  that  ground all revision cases  should  have  been permitted to be continued and the permission should not have been  confined to cases of fine.  Indeed in that  case  this Court  proceeded  on the basis that there was  no  statutory provision  applying to the case.  It observed, "even in  the absence    of    any   statutory   provisions,    we    have held.............  that  the  High Court has  the  power  to determine  the  case even after the death of  the  convicted person, if there was a sentence of fine also imposed on him, because  that sentence affects the property of the  deceased in  the hands of his legal representative".  A  sentence  of fine affects property equally when the case is taken further up  in  appeal or in revision, If it is just and  proper  to continue  the  hearing in one case after the  death  of  the accused, it would be equally so in the other case. The  principle on which the hearing of a proceeding  may  be continued  after the death of an accused would appear to  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. A  sentence of fine no doubt affects the property.   In  the present -case, however, the sentence was not of fine but  of imprisonment which on the death of the accused has become (1) [1959] 1 S.C.R. 63. (2) [1943] L.R.K.B. 15.                             255 infructuous.  There is no one now who can be imprisoned.  It is, however, said that though that sentence can no longer be executed, it still affects the property of the deceased  and the legal representatives are, therefore, interested in  the appeal  and should be permitted to continue it.  The  matter is  put in this way.  The appellant, who held a high  office in  the  Government  of Andhra Pradesh  had  been  suspended during  the investigation of the charge against him  and  he was  dismissed from service under certain service  rules  on

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his  conviction.   During this time the appellant  had  only been  given  a  small allowance.  It was said  that  if  the conviction  was set aside, the estate would be  entitled  to receive the full salary from the Government. It seems to me that this contention is not accurate.  It may be  that  if the sentence is set aside that may  assist  the legal  representatives  in their effort to obtain  the  full salary  to  which  the deceased’s  estate  would  have  been entitled.   But the effect of the sentence imposed  in  this case  being set aside would not directly entitle  the  legal representatives  to  the salary.  They will have  to  obtain necessary  orders from the Government for the  purpose.   It has not been shown to us that such order will  automatically follow the setting aside of the conviction.  Neither has  it been  shown that the legal representatives cannot  move  the Government  to  pass  such orders on  the  ground  that  the correctness of the conviction could not be tested because of the  death of the appellant.  For these reasons I am  unable to  hold  that tire justice of the case  requires  that  the legal representatives of the deceased should be permitted to continue  the appeal.  It would be extending  the  principle applied  to the case of a sentence of fine, if on the  basis of  it this appeal was allowed to be continued by the  legal representatives  after  the death of the appellant  and  for such an extension I find no warrant. In my view, for these reasons the legal representatives  are not  entitled to continue the appeal.  That being so and  as the sentence was one of imprisonment which would not  affect anyone  after  the death of the accused, it cannot  be  said that there is anyone interested in the appeal.  There is no, question,  therefore, in such a case for proceeding  further with the appeal. HIDAYATULLAH, J.-The appellant was convicted under s. 302 of the Indian Penal Code and sentenced to imprisonment for life by the High Court of Andhra Pradesh.  He was granted special leave to appeal by this Court.  During the pendency of  this appeal  the  appellant died on August 30, 1963.   After  his death  his  sons  and daughters applied  to  this  Court  on October 5, 1963 for permission to continue to prosecute  the appeal.  Their petition is all that we are concerned with at the present moment. The   appellant  was  working  as  Superintending   Engineer (Electricity)  in  the service of the Government  of  Andhra Pradesh.   The case against him was that on August 10,  1959 he 256 committed the murder of his wife by shooting her in the back with a revolver.  He was acquitted by the Sessions Judge  of Krishna  Division, Masulipatnam but, on appeal by the  State Government  the order of acquittal was set aside and he  was convicted   and  sentenced  as  above.   In  view   of   the appellant’s  death  we  are of  course  not  interested  any further  in considering the details of the offence, if  any, unless we allow the heirs of the appellant to prosecute  the appeal  after  his  death and this  is  precisely  what  the present  petitioners claim they are entitled to do.   It  is admitted,  however,  that no analogous contention  was  ever raised  in this Court, though appeal on the death of a  sole appellant  were, before this, treated as abated.  One  would expect that an appeal of this character would normally abate on the death of the appellant because a criminal prosecution is  concerned primarily with the punishment of  an  offender and not with the trial of an abstract issue about the  truth or  falsity of a prosecution case.  The maxim  actio  perso- nalis  moritur cum persona is often invoked in this  behalf.

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The Criminal Procedure Code in s. 431 also provides that all -appeals  filed  under s. 41 I-A sub-s. 2 or  s.  417  shall finally  abate on the death of the accused and  every  other appeal  under Chapter XXXI shall finally abate on the  death of  the  appellant, except an appeal against a  sentence  of fine.  The section cannot cover a, case such as the  present because this appeal was not filed under any of the  sections mentioned in s. 431 or under Chapter XXXI. It is contended that without the aid of a provision like  s. 431, Criminal Procedure Code, the appeal must be treated as continuing  and it is pointed out that for this  reason  and for the additional reason that the powers of revision can be exercised suo motu this Court allowed legal  representatives t‘ continue to prosecute criminal revisions under s. 439  of the  Code in Pranab Kumar Mitra v. The State of West  Bengal and  Another(1)  and Pritam Singh v. The  State(2).   It  is urged  that  on  a parity of reasonig  this  appeal  can  be continued  by the heirs.  It is not my purpose to  consider, whether  in the absence of any direct injury to  the  living every  criminal  proceeding must come to an  end  after  the death of the accused whether before his conviction or after. But  there  must  always  be  some  discernible  reason  for permitting  another  person to continue  an  appeal  whether civil  or  criminal after the death of  the  appellant.   An appeal  is not a heritable asset and does not revolve  as  a matter  of course upon an executor or heir.  Even under  the civil law an express provision is required for  substitution of another person in the place of the person deceased before the  appeal  can be continued and this is again  subject  to whether  the  cause  of action survives or  not.   The  same principle is again to the (1) [1959] (1) S.C.R. 63. (2) [1950] S.C.R. 453. 257 forefront  in s. 431 when it allows an appeal in respect  of fine to be continued but not appeals involving imprisonment. The  intention there too appears to be to afford only  those persons a right whose interests are directly jeopardized  by the judgment.  In so far as personal punishment (other  than a  fine) is concerned that stands dissolved by the death  of the offender and an appeal to get that punishment set  aside becomes infructuous and abates. The only question in this case is whether the principle laid down  in  the  two cases of this Court  cited  above  should govern  special appeals or the principle underlying s.  431. It  may  be  said at once that the former is  not  a  direct precedent applicable to the present matter because there  is no analogy between an appeal by special leave and a revision under  the  Code.  The latter can be suo motu  but  not  the former.   The petitioners claim that the father, if he  were acquitted, would have been entitled to claim his pay for the period upto his death since on his conviction he was removed from service by the Government and the amount thus  involved is  Rs.  40,000/-.  The petitioners say that if  the  appeal were  now allowed they would be able to ask for this  amount and  in this way claim an interest in the appeal.   This  is not  a case where the legal representatives after the  death of the offender have to meet the liability of a fine or  are required to protect the assets which they claim should reach them.   This is a case where the petitioners claim  to  have the  judgment of the High Court reexamined so that they  may be  able  to  prefer a claim to the salary  to  which  their father would have been entitled if he had been acquitted  of the  criminal  charge.   In my judgment.  no  claim  of  the petitioners is jeopardized directly by the judgment.   Their

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claim  is  dependent  upon  the  administrative  action   of Government  which  may not proceed upon the  result  of  the criminal  prosecution.   In other words, the  claim  on  the strength  of which the present petitioners seek to  join  in this  appeal  is too remote and not  directly  consequential upon  the issue to be tried.  The appeal was only  concerned with the correctness, or otherwise of the conviction and not with  any monetary claims depending upon the result  of  the appeal.   In  such  a situation the  ordinary  rule  that  a criminal proceeding against a person comes to an end on  his demise  must  apply also to special appeals in  this  Court, such  as  this, even though the provisions of  the  Criminal Procedure Code may not be directly applicable. At  the hearing counsel cited cases from the English  Courts and  the  Supreme Court of the United States.   The  English cases referred to are collected in Short & Mellor’s Practice of  the Crown Office and Griffith’s Guide to Crown  Practice and  the  cases  of the United States  are  referred  to  in Annotations. L/P(D)ISCI-9 .. 258 in 87 Lawyer’s Edition 1234 and 1 Lawyer’s Edition II Series 1879.  The English practice appears to be that there must be a,  direct  monetary liability attaching to  the  living  by reasons of     the  impugned  judgment before  they  can  be allowed  to continue an appeal filed by a dead person.   See Hodgson  v. Lakeman(1) and Regina v. Rowe(2).  The  American practice also appears to be the same. There is good reason for holding that a criminal prosecution in  which the State is anxious to bring an offender to  book with a view to getting him punished for a crime comes to  an end  on  the  death  of  the  person  arraigned.   The  same principle  must  apply  also to  appeals  after  conviction, except  in  so far as a judgment  already  rendered  touches assets which would come to the legal representatives or  the executor as the case may be.  Beyond this it is not possible to conceive of remoter interests because if the law were  to take  into account such remote interests every appeal  would have  to be continued after the death of the appellant.   In my judgment, the present petitioners do not claim any direct interest  and the appeal must, therefore, be taken  to  have abated.   I  agree that the petition be  dismissed  and  the appeal held to have abated. MUDHOLKAR,   J.-This  appeal  raises  an   interesting   and important  question.   It is whether the heirs at law  of  a deceased  person who had brought an appeal to this Court  by special leave in which he had challenged his conviction  and sentence  for  an  offence, are entitled  to  prosecute  the appeal  after his death during the pendency of  the  appeal. The  applicants are the children of the deceased who  was  a Superintending Engineer (Electricity) in the service of  the Government  of  Andhra  Pradesh.  He  was  charged  with  an offence under s. 302, Indian Penal Code for having committed the  murder  of his wife by shooting her  with  a  revolver. During the investigation of the offence he was placed  under suspension with effect from August 10, 1959 and was  allowed subsistence  allowance  for some time.  His defence  at  the trial  was that while his wife was picking up  the  revolver from the teapoy on which he had kept it, suspecting that  he would  shoot  himself with it, it went  off  accidently  and killed her.  This defence was accepted by the Sessions Judge and he was acquitted.  On appeal by the State the High Court of Andhra Pradesh set aside the acquittal and convicted  him of  an  offence under s. 302, I.P.C. and  sentenced  him  to undergo  imprisonment  for life.  He  thereupon  sought  and

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obtained special leave from this Court to prefer an  appeal. During the pendency of the appeal he died.  According to the applicants a sum of Rs. 40,000/- would be due to the deceas- ed,  being the difference between the subsistence  allowance actually paid by the Government to him and the total  emolu- ments that would have been payable to him from the date of (2)  [1955] 1 Q.B.D. 573 (1) [1943] K.B. 15.                             259 suspension  till his death and that they as his legal  heirs would be entitled to act this amount in case the  conviction and sentence are set aside by this Court. In support of his contention that the appeal has not  abated by reason of the death of the appellant Mr. K. R.  Chaudhuri points  out  that s. 431 of the Code of  Criminal  Procedure (hereafter referred as the Code) which speaks about  appeals is limited in its application to appeals under Ch.  XXXI  of the Code and would not fetter the powers of this Court under Art.  136  of  the Constitution to hear  an  appeal  brought before  it  by  special leave even  though  the  person  who brought it is no longer alive.  It is no doubt true that  s. 431 of the Code only says that appeals under s. 411A, sub-s. (2)  and  s.  417 shall finally abate on the  death  of  the accused and every other appeal under Chapter XXXI except  an appeal  from a sentence of fine shall finally abate  on  the death  of the appellant.  It does not, therefore,  in  terms apply  to an appeal permitted to be preferred by this  Court in  exercise  of  its  discretion  under  Art.  136  of  the Constitution.   The  argument of Mr. Chaudhuri is  that  the power  conferred  upon this Court by Art. 136  is  wide  and discretionary  and is analogous to that conferred  upon  the High  Court  by  s.  439  read with  s.  435  of  the  Code. Therefore, upon an analogy of the decision of this Court  in Pranab  Kumar  Mitra  v.  The  State  of  West  Bengal   and another(1)  this Court has the power to hear the appeal  and to  permit  the  applicants to prosecute it.   He  does  not contend  that the applicants have a right to be  brought  on the  record in place of the deceased appellant  but  submits that  to  meet  the ends of justice it would  be  right  and proper  to  permit the applicants to  prosecute  the  appeal because  if it succeeds they will be able to claim from  the Government  the arrears with respect to salary due to  their deceased father from the Government. It  seems  to me that the decision upon which  reliance  has been  placed has no bearing upon an appeal brought to  this, Court by special leave.  It is no doubt true that the  power conferred  by  s.  435 of the Code on  the  High  Court  and certain other courts and by Art. 136 of the Constitution  on this  Court is discretionary.  In so far as the  High  Court and certain other courts are concerned the discretion is  to call for and examine any record of any proceeding before  an inferior  criminal court situate within the local limits  of its jurisdiction for the purpose of satisfying itself as  to the  correctness,  legality  or propriety  of  any  finding, sentence or order passed by the inferior court and as to the regularity  of any proceeding of such court.  Under  s.  435 these  courts have power to act in this manner suo motu  and s. 440 provides that no party has a right to be heard either (1)  [1959] Supp. 1 S.C.R. 63.     L/d)D)ISCI-9,a) .... 260 personally  or  by  a pleader before such  court,  with  one exception.   That  exception is that the High  Court  cannot make  an order under s. 439 of the Code to the prejudice  of an accused person unless he is given an opportunity of being

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heard either personally or by pleader in his defence.   When the  record  comes  before  the High Court  it  may  in  its discretion  exercise any of the powers conferred on a  Court of appeal by sections 423, 426, 427 and 428 or on a Court by s.  338  and  has also the power to  enhance  the  sentence. Article 136 of the Constitution confers discretion upon this court  whether  to  grant special leave or  not.   But  this Article  does not confer any power upon this Court  to  call for  the  record of any court or tribunal suo motu  for  the purpose of examining it and making an appropriate order.  It only empowers this Court to grant leave to a person to bring his  appeal  before  it and afford  him  an  opportunity  of showing  such  error as may be existing in the  judgment  or order appealed from.  There is a fundamental difference bet- ween a power which is exercisable by a Court suo motu and  a power  which can be exercised only when it is moved in  that behalf  by a party.  For the exercise of suo motu power  the appearance  of a, party before the Court concerned is not  a prerequisite.   Indeed  as s. 440 provides, it  is  for  the Court to decide whether or not to allow the party to  appear before  it  and be heard.  But of course  the  principle  of natural  justice would preclude a court even in such a  case from  making  an order to the prejudice of a  party  without giving  the party an opportunity to be heard.  In so far  as an  appeal  is concerned, by whichever way  it  is  brought, whether  as  of  right  conferred  by  a  provision  in  the Constitution  or  by any other law or by special  leave  the appellant  has a right to be heard and a right to  prosecute the  appeal.  A Court exercising suo motu powers may  choose at  any  stage  to drop the proceeding and  not  proceed  to examine  the  records at all.  But as long as an  appeal  is pending  before  a  Court  and there  is  a  person  legally competent  to prosecute it and there is no legal  impediment to its being heard, the Court has no discretion to refuse to go on with the appeal even though initially it may have been brought  before it by its leave.  As soon as -the  leave  is granted a right accrues in favour of the party who has  been granted  leave.  It may be that where this Court finds  that leave  has been improperly obtained or given it  may  revoke the  leave.   But that is quite different from  saying  that without  revoking  the leave it can drop the  appeal.   This distinction  between revisional powers and appellate  powers has been adverted to in the decision relied upon(1) at p.  70. Sinha, J. (as he then was) has observed:               "The  revisional  powers  of  the  High  Court               vested in it by s. 439 of the Code, read  with               s.  435,  do  not  create  any  right  in  the               litigant,  but only conserve the power of  the               High Court to see that justice is               (1)   [1959] Supp.  1 S.C.R. 63.               261               done  in accordance with the recognized  rules               of    Criminal   Jurisprudence,    and    that               subordinate  criminal  courts  do  not  exceed               their  jurisdiction,  or  abuse  their  powers               vested  in  them by the Code.   On  the  other               hand, as already indicated, a right of  appeal               is  a  statutory  right which has  got  to  be                             recognized  by  the courts, and  the right  of               appeal, where one exists, cannot be denied  in               exercise  of the discretionary powers even  of               the High Court." Thus,  when the special leave granted by this Court has  not been  revoked  it can exercise with respect  to  the  appeal

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before  it  what  may be  called  appellate  powers.   While hearing  an appeal from the decision of a High  Court,  this Court  will, therefore, be competent to exercise  only  such powers  as the High Court itself could exercise in  relation to  the  appeal.  In so far as the procedure for  hearing  a criminal appeal by special leave is concerned this Court has framed  certain  rules.  Order XXI of Supreme  Court  Rules, 1950  contains those rules.  Rule 23 of that Order  provides for  the  entering of appearance by parties in  the  appeal. Rule 24 provides for the filing of statements of case by the parties.   Rule 25 provides for setting down the appeal  for hearing.    Rule  26  empowers  the  Court  to  direct   the engagement of an Advocate at the cost of the Government in a proper  case where the accused person is not represented  by an Advocate ’on record of his choice.  Rule 27 provides  for giving  a notice to the accused where he is not  represented on the date fixed for the hearing of the appeal and  permits the  accused person if he so wishes to present his  case  by submitting  his  argument in writing and  provides  for  the consideration of the written argument at the hearing.   Sub- rule (2) of that rule dispenses with necessity of production of  the  accused  person in custody at the  hearing  of  the appeal.   There is no express rule which states as  to  what has to be done where the accused person who is an  appellant is not present or represented at the hearing of the  appeal. Order XLV, rule 5, however, preserves the inherent power  of the  Court to make such orders as may be necessary  to  meet the  ends of justice or to prevent the abuse of the  process of the Court.  Thus this Court has the power to prevent  the abuse of its process and it will be an abuse of its  process if  the appellant despite service of notice of the  date  of hearing chooses to remain absent at the hearing.  Now,  just as  the Court can, under r. 18 of 0. XXI dismiss  an  appeal for non-prosecution where the appellant refuses to take  the necessary steps for bringing the appeal to hearing, it  must be  deemed  to have similar power to dismiss  it  where  the appellant  is not present or is not represented.  Where  the absence of the appellant is due to the fact that he is  dead it would still be a case of non-prosecution and,  therefore, this Court would have the right and the duty to dismiss  the appeal.  Since the power 262 to  prosecute the appeal inhered in the appellant alone,  no one: else can claim to exercise it unless the law  conferred such  a right upon that other person.  This the law  may  do expressly  as. it has done in 0. XXII of the Code  of  Civil Procedure or impliedly as it has done in s. 431 of the Code. Apart  from the fact that in a criminal matter the issue  is personal  between the accused person and the State the  fact remains  that  the right of appeal is also personal  to  the appellant.  It cannot be allowed to be exercised by  another unless there is some provision in law which would permit  it to  be exercised or unless such a course is  permissible  by reference  to a principle.  There is admittedly  no  express provision   permitting   the  substitution  of   the   legal representatives of a deceased appellant in a criminal appeal brought  to this Court by special leave.  We have,  however, to  bear in mind the policy of the law as enacted in s.  431 of the Code.  The policy is that every criminal appeal under chapter XXXI will abate except an appeal from a sentence  of fine.   Thus,  instead of there being any principle  on  the strength  of  which  the legal heirs of a  person  could  be allowed  to prosecute after his death an appeal  brought  by him challenging his conviction and sentence of  imprisonment the  policy  of  the  law  is  definitely  opposed  to   it.

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Moreover,  only  a  person  who  can  properly  represent  a deceased appellant can be allowed to be brought on record in his  place and prosecute the appeal.  That is the  principle upon  which the provisions of 0. XXII of the Code  of  Civil Procedure  are based.  That again is the principle  followed by  the Courts in England in allowing appeals in  which  the challenge  was  to a fine imposed upon the appellant  to  be continued  by  the  executors  and  administrators  of   the deceased  appellant.   As an instance of  this  would  first refer  to  Hodgson  v. Lakeman(1).  In  that  case  Viscount Caldecote  C.J.,  permitted the executors  of  the  deceased appellant  claiming  an interest in the appeal  against  his conviction  and  sentence of fine to prosecute  the  appeal. The  fine, though a small one, would have been a  burden  on the estate and thus the executors could be said to have  had an  interest in having that burden removed.  This  case  was distinguished in Regina v. Rowe(2) In that case the widow of the deceased appellant sought leave to prosecute the  appeal in which he had challenged his conviction on four counts  of obtaining  money  by  false pretences and  the  sentence  of imprisonment to 18 months.  The ground on which the  widow’s application  was supported was that the  conviction  against her  husband  affected  her chances of  employment  and  her position among her friends and that if interest is the test, then  the  widow also had an interest.   This  argument  was repelled by Lord Goddard C.J. who said that the Court cannot take notice of that because the interest she (1) [1943] 1 K.B. 15.         (2) [1955] 1 Q.B.D. 573. 263 has  was not a pecuniary one.  It was further  urged  before the  Court  that where any person might be prejudiced  by  a conviction  against  a deceased person, and  an  appeal  was lodged  before  the death of that person, the  Court  should allow  the appeal to be continued by that person so that  if there had been a miscarriage of justice and the heirs of the deceased were living under the shadow of the fact that their relative had died a convict, the interests of justice  would require  that  the appeal be heard.  To  this  argument  the answer of the learned Chief Justice was that this would be a case  for making an application for a tree pardon.   In  the course of the judgment he observed:               "............... we cannot allow a widow or an               executor  or  an administrator of  a  deceased               person to appeal to this court unless they can               show  a  legal  interest.   If  a  person   is               sentenced  to  pay  a  fine  and  dies  having               appealed, or even if he dies after payment  of               the fine-it might be immediately afterwards-it               may be that the court would allow executors or               administrators to appeal merely on the  ground               that if the conviction were quashed they could                             recover the fine for the benefit of th e  estate               of  the  deceased  which  they  are  bound  to               administer.  In Hodgson v. Lakeman(1) to which               our  attention  was called, which was  a  case               before the Divisional Court, but the principle               would be the same, the appellant was dead, and               the  court allowed the executors  to  continue               the  appeal  because  there  was  a  pecuniary               interest.  Supposing, as sometimes happens,  a               man is convicted on indictment and fined pound               500;  the money has to be paid, and the  Crown               can recover that money whether he is alive  or               dead,  for  it  can  recover  it  against  his

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             estate,   and,  therefore,  it  would  be   an               injustice if the executors were not allowed to               appeal  and  to say that  the  conviction  was               wrong,  because,  if it was wrong,  the  money               would be saved.               It may be that it is artificial to say that if               there  is a pecuniary penalty an appeal  might               lie,   whereas  if  corporal   punishment   or               imprisonment  is  imposed there cannot  be  an               appeal, but at the same time I do not see  any               ground on which we can say in the present case               that anybody has an interest.  It may be  that               the  widow  would  be very glad  to  have  her               husband’s name cleared, but we cannot take any               notice of that sentimental interest.  There is               nobody  affected  now by the judgment  of  the               court because               [1943] K. B. 15.               264               the  judgment was a sentence  of  imprisonment               and the prisoner has died.  It would be a very               novel step if, in these circumstances, we said               that the court would entertain an appeal." In Short and Mellor’s (The Practice on the Crown Side of the King’s  Bench Division, second edition) it is stated  at  p. 425  that  the  practice does not seem  to  be  uniform  and reference is made to some cases.  In one of them-Hesketh  v. Atherton(1) the counsel was allowed to argue an appeal after the  death of one of the parties.  But in Leach v.  Wanstead School Board (2) (2) wherein a conviction against the father of  a  child  for  not  sending  the  child  to  school  was challenged  in appeal and the father and the child had  died in the meanwhile, the Court refused to allow the case to  be argued  on the ground that there was no interest  surviving. In  Siberry  v.  Connolly(3) where there  was  a  claim  for seaman’s  wages, the appellant’s executors were  allowed  to take the place of the deceased appellant.  In Constantine v. Illingworth(4)  where the defendant in a criminal  case  had died, the Court ordered the case to be struck out.  The same was done in Jones v. Fallowfield(5).  In Rivers v. Glasse(6) where  the respondent had died and the appellant  had  given notice to the executors to support the conviction, the Court heard and determined the case and gave costs to the  respon- dent’s executors.  The position so far as the United  States is concerned is set out as follows(7):               "The  death of an accused ordinarily abates  a               criminal action, including review  proceedings               pending at that time.               The interest of the deceased’s representatives               or  next of kin in clearing his good name  was               held  in  United States v. Mook(8) not  to  be               sufficient to allow the appellate court, after               the defendant’s death pending his appeal  from               a  conviction  of  violating  the   Interstate               Commerce  Act,  to decide the  appeal  on  the               merits.   The court however, added: ’we  think               it may not be amiss to say that it seems to us               that the next-of-kin of a convicted person who               dies  pending  an appeal have an  interest  in               clearing  his good name, which Congress  might               well  believe  would justify a change  in  the               law."’ Thus  in that jurisdiction also the basis  of  intervention, when permitted, is a survival of an interest in the heirs or executors  of the deceased.  That interest would only  be  a

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pecuniary one (1)Short and Mellor at p. 425.(2) ibid. (3)ibid.  (4) ibid. (5)ibid.  (6) ibid. (7)  1 L.Ed. 2nd Series, p. 1879.(8) 125 F2d. 706. 265 and where the estate is not affected by the conviction there would be no ground for allowing the intervention of the heir or  executor.  It may be that the interest of the  heirs  of the deceased convict to clear his name should be  recognised and  they  ought to be allowed an opportunity to  clear  it. But  unless  it is recognised by the legislature  the  court cannot take notice of it.  So far as the Court is concerned, the only question arising in the appeal before us is whether the  conviction and sentence of imprisonment are correct  in law.   The  only person who had an interest  in  the  appeal before the Court in showing that both were not justified was the  appellant and since he is dead, the interest  which  he had ceases to exist and cannot pass to anyone. Another case which was referred to at the bar was The  State of  Kerala  v.  Narayani Amma Kamala Devi(1)  in  which  the decision  in Pranab Kumar Mitra’s case (2) was  relied  upon and reference was made to Imperatrix v. Dongaji Andaji(3) In that  case  also  the question was whether  the  High  Court -could  exercise  its revisional powers against  an  accused person  even  after  his death.  There  the  Court  was  not concerned  with  its own powers with respect to  a  criminal appeal brought before it by special leave. It  is then said that the applicants have an interest  inas- much  as  the  estate of the  deceased  appellant  would  be enriched by Rs. 40,000/- if this Court ultimately finds  the appellant  innocent  and if the Government,  acting  on  the basis  of the decision of this Court which is  binding  upon it,  rescinds  the  suspension  order  passed  against   the appellant  and  in conformity with it pays  the  arrears  of salary due to the appellant.  This interest is not a  direct interest  in  the  sense that it cannot  arise  out  of  the decision  of  this  Court even if it is  in  favour  of  the appellant.   The only interest which the applicants have  is a.  contingent one and is not one which could flow  directly out  of  the  ultimate decision of this Court.   If  we  may mention, the argument advanced in Rowe’s case(4) before Lord Goddard  C.J., that by clearing her deceased husband’s  name the widow’s chances of securing employment would improve was not  accepted  as creating a pecuniary interest such  as  to justify granting her permission to prosecute the appeal. Indeed,  the legislature has, by limiting in s. 431  of  the Code the survival of appeals to appeals against sentences of fine  has chosen to recognise only one kind of interest  and no  other.  There could be several other kinds of  interest, as was suggested during the arguments at the bar.  But  this Court, in (1)[1962]  Supp. 3 S.C.R. 943. ( 2 ) [1959] Supp.  1  S.C.R. 63. (3) (1879) I.L.R. Bom. 564. (4) [1955] 1 Q. B.D. 573. 266 exercise  of  its inherent powers or  discretionary  powers, would not be acting according to correct legal principles in recognising a kind of interest which the legislature has not chosen to recognise.  In the circumstances, therefore, I  am clear  that the applicants ought not to be granted leave  to prosecute the appeal.              Leave to prosecute appeal refused. 267

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