http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: PRANAB KUMAR MITRA

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL AND ANOTHER

DATE OF JUDGMENT: 03/10/1958

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H. SUBBARAO, K. WANCHOO, K.N.

CITATION:  1959 AIR  144            1959 SCR  Supl. (1)  63  CITATOR INFO :  R          1962 SC1530  (11,12)  RF         1964 SC1645  (2,9,14,15,16)  RF         1979 SC 745  (72)

ACT:        Criminal  Revision-Death  of  Petitioner  Pending   hearing-        Application  by legal representative to be added  as  party-        Power of High Court-if can consider legality of  conviction-        Code  of Criminal Procedure (Act V of 1898), ss.  439,  435,        431.

HEADNOTE: There  is  no provision in the Code  of  Criminal  Procedure which  limits the wide discretionary power conferred on  the High  Court  by  s. 439- read with s. 435  Of  the  Code  of Criminal  Procedure to examine the correctness, legality  or propriety  of  any finding, sentence or order passed  by  an inferior Court and, where it chooses to interfere either suo motu  or at the instance of a party, it has  thereunder  the power,  in the ends of justice, not only to bring the  legal representative  of  a deceased party on record but  also  to consider  the legality of the order of conviction even  when the   sentence   inflicted  may  be  a  composite   one   of imprisonment and fine. Imperatrix  v.  Dongaji Andaji, (1878) I.L.R.  2  Bom.  564, approved. In Ye Nabishah, (1894) I.L.R. 19 Bom. 714, considered. Consequently,  in a case where the accused  petitioner,  who was  convicted  under s. 420 Of the Indian  Penal  Code  and sentenced  to  suffer one day’s imprisonment,  which  really meant detention till the rising of the Court on the day  the order was pronounced, and to pay a fine of Rs. 500/- and  in default to suffer rigorous imprisonment for six months, died during  the pendency of the revision case in the High  Court and  his son applied to be substituted as a party  in  order that he could challenge the order of conviction and sentence and the High Court, holding that the principle Of s. 431  of the Code of Criminal Procedure applied, added him as a party but  refused  to  consider  the legality  of  the  order  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

conviction and reduced the sentence. Held,  that  the  High Court was in error  in  limiting  its powers under S. 439 of the Code of Criminal Procedure on the analogy Of s. 431 of the Code, which in terms did not  apply to a revision case, and its decision must be set aside.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION Criminal Appeal No. 116  of 1956. 64 Appeal from the Judgment and order dated December 22,  1955, of  the Calcutta High Court in Criminal Revision No. 714  of 1955,  arising  out of the judgment and order dated  May  9, 1955,  of  the  Court of the Additional  Sessions  Judge  at Alipore in Criminal Appeal No. 97 of 1955. C.   P. Lal, for the appellant. H.   J. Umrigar and R. H. Dhebar, for the respondents. 1958.  October 3. The Judgment of the Court was delivered by SINHA  J.-The  simple  question for  determination  in  this appeal on a certificate of fitness granted by the High Court of Judicature at Calcutta,’ is whether a pending application in  revision  made  under s. 439 of  the  Code  of  Criminal Procedure  (to  be  referred to hereinafter  as  the  Code), finally  abates on the death of the petitioner in  the  High Court, and if so, to what extent. It is not necessary to set out, in detail, the facts of  the prosecution case and the evidence upon which the findings of the  courts  of fact were based, except to  state  that  the appellant’s  father, Sailendra Sundar Mitra, was  tried  and convicted  by a MaListrate of the first class,  at  Alipore. The  Appellate  -Court  has set out  the  case  against  the accused in these words: " The charge against the accused was that  on  the  2nd  December, 1946,  at  Garden  Reach,  the accused,  being an employee as Establishment Clerk of B.  C. II  Section in the Traffic Accounts Office of B. N.  Railway (now  Eastern  Railway),  cheated the  said  B.  N.  Railway Administration by dishonestly inducing it by means of  false representation in the pay bill of the non-gazetted staff for November,  1946, to deliver to him Rs. 205-13-0 and  to  one Satish  Chandra  Das  Gupta, a clerk in the said  B.  C.  11 Section,  Rs.  33-4-0  in excess  of  legitimate  dues,  and thereby  committed an offence punishable under section  420, I.P.C."  The learned trial Magistrate convicted the  accused person for cheating in respect of Rs. 205-13-0, but gave him the benefit of the doubt in respect of the sum of Rs. 33-4-0 65 claimed  on behalf of another person, named  Satish  Chandra Das  Gupta.   He sentenced the accused to suffer  one  day’s imprisonment  (really,  detention  till the  rising  of  the court,  on the day the order was pronounced), and to  pay  a fine of Rs. 500/-, and in default, to rigorous  imprisonment for  six  months, more.  He also directed that  out  of  the fine,  if  realised,  Rs. 333/- shall be paid  to  the  B.N. Railway  Administration (now, the South Eastern Railway)  as compensation,  by  his order dated February  11,  1955.   On appeal,  the  learned Additional Sessions Judge  at  Alipore (24,  Parganas),  after hearing the parties,  dismissed  the appeal, and confirmed the orders of conviction and  sentence passed  by  the learned trial Magistrate,  by  his  judgment dated May 9, 1955. Being  aggrieved  by the judgment and orders of  the  courts below,  the  accused aforesaid moved the High Court  in  its revisional jurisdiction, under s. 439 of the Code.  The High

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

Court  issued  a  Rule  which  was  registered  as  Criminal Revision Case No. 714 of 1955, and stayed the realization of the  fine  pending  the hearing of  the  Rule.   During  the pendency  of the case in the High Court, the accused  person died  on July 8, 1955, leaving him surviving his  widow  and five children, all of whom were minors except the appellant. The  appellant  made  an application on  December  6,  1955, stating that he was one of the heirs of the deceased accused (petitioner  in the High Court), and that he was  interested in   proceeding  with  the  criminal  revision   case,   and challenging  the  order of conviction and  sentence,  passed against his deceased father.  He, therefore, prayed that  he might be added as a party to the Criminal Revision Case  No. 714  of 1955, so as to enable him to challenge the order  of conviction  and sentence aforesaid.  This " application  for substitution ", as the Division Bench of the High Court  has characterized it, was heard, and. the Bench passed its order on  the application on December 22, 1955, holding  that  the principle  of  s.  431 of the Code, applied  to  a  criminal revisional  application  even  when there  was  a  composite sentence but only in so far as the sentence of fine 9 66 was  concerned.   The  application  for  substitution   was, therefore,  allowed.   The High Court also  ruled  that  the conviction could not be challenged inasmuch as the  sentence was a composite one of imprisonment as  also fine, and that, therefore, the revisional application would survive only  to the  limited extent whether the sentence of fine was  proper or unduly severe.  The High Court, therefore, refused to  go into  the merits of the conviction, and confined  itself  to the question whether, in the circumstances of the case,  the sentence of fine of Rs. 500/- was unduly severe.  In view of the fact that the defence of the accused person was that  he had  over-charged on account of a mistake, and that  he  was prepared  to  refund  the  excess  amount,  the  High  Court directed  that  the sentence of fine be reduced to  the  sum charged  in excess, namely, Rs. 205/13/-.  It also  directed that the whole of the amount of fine, if realized, shall  be paid  to the B.N. Railway Administration (now South  Eastern Railway).   Being dissatisfied with the aforesaid  order  of the  High  Court,  the appellant moved the  High  Court  and obtained the necessary certificate of fitness from the  High Court.   Hence, this appeal on a certificate under art.  134 (1) (c) of the Constitution, granted by the High Court. There  is no relevant provision in the Code, except  s.  431 which  is  the  last section in Chapter XXXI  of  the  Code, dealing with appeals, and is in these terms:- "431.   Every appeal under section 411A, subsection (2),  or section 417 shall finally abate on the death of the accused, and every other appeal under this Chapter (except an  appeal from a sentence of fine) shall finally abate on the death of the appellant." It is manifest that the section, in terms, applies. only  to appeals,  and lays down that an appeal against an  order  of acquittal  passed  by  the High Court  in  exercise  of  its original criminal jurisdiction (s. 411-A (2)), or an  appeal to  the High Court from an order of acquittal passed by  any court  other than the High Court, shall finally  abate  upon the death of the accused, 67 and all appeals under Chapter XXXI, except an appeal from  a sentence  of fine, shall finally abate on the death  of  the appellant.   The  first part of the section dealing,  as  it does,  with appeals against orders of acquittal,  naturally,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

provides that such appears must, necessarily, abate  because the accused person has passed beyond the jurisdiction of the Court.  The second part of the section deals with appeals by convicted  persons or by a person who has been  deprived  of any  property, or who has been ordered to furnish  security, etc., and lays down that such appeals shall finally abate on the death of the appellant except appeals from a sentence of fine.  As in the instant case, we are not directly concerned with the legal position as it may emerge on the death of the appellant or of an accused person as respondent, we need not go into the question whether an appeal would abate if it  is from a conviction and sentence not only of fine but also  of imprisonment though it may be till the rising of the  court. We  are  here concerned with a case in which  the  convicted person  had served out his nominal sentence of  imprisonment (assuming that it was a legal sentence of imprisonment), and his  application  in  revision was pending  and  was  mainly concerned  with  challenging  the order  of  conviction  and sentence  of  fine, when the petitioner in  the  High  Court died.   As  already indicated, s. 431, in  terms,  does  not apply to such a case. The   case  has,  therefore,  to  be  determined  on   first principles.  It appears that the Criminal Procedure Code  of 1882  (Act  10 of 1882), for the first time,  introduced  s. 431.   That  section  came up  for  consideration  before  a Division  Bench  of the Bombay High Court  in  its  criminal revisional  jurisdiction in the case of In re Nabishab  (1). Shortly stated, the facts in that case were that two persons had been convicted of criminal breach of trust, and each one was  sentenced  to one year’s rigorous. imprisonment  and  a fine  of Rs. 1,000.  Both the convicted persons appealed  to the High Court.  One of them died during the pendency of the appeal.   The appeal of the surviving appellant was  allowed by the High Court,. and his Conviction (1)  (1894) I.L.R. 19 Bom. 714. 68 and  sentence  were  set  aside.   Thereupon,  one  of   the relatives  of  the deceased appellant applied  to  the  High Court  in  its  revisional jurisdiction  to  set  aside  the conviction  and sentence passed against the dead   man,  and for a refund of the fine (which appears to have been  paid). It was held by the High Court, without discussing the  terms of  the  section  and without giving any  reasons  for  that conclusion,  that the appeal in respect of the dead man  had abated under s. 431 of the Code.  The High Court refused  to deal  with  the case in its revisional jurisdiction  on  the ground that the case depended upon appreciation of evidence. It  may  be  that the High Court came  to  that  conclusion. presumably  on  the  ground that the  appeal  was  not  only against  a sentence of fine but also against  a  substantive sentence of imprisonment.  Where a sentence both of fine and of imprisonment, is passed, and an appeal or an  application in  revision is filed, the superior court may grant bail  or may  not.  It may be that in a case where bail has not  been granted,  the  convicted  person may  have  served  out  his substantive  sentence of imprisonment, and by the  time  his appeal or application in revision comes up for hearing,  the substantial question to be determined by the High Court  (or the  Court of Session where the appeal may be  pending),  is the  legality,  correctness  or propriety of  the  order  of conviction and the outstanding sentence of fine.  In such  a case,  it may be a debatable question whether the appeal  or the.  application in revision has abated.  Such a  situation arose  in the case of Imperatrix v. Dongaji Andaji (1).   In that case, the accused person was sentenced, on a charge  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

forgery,  to four years rigorous imprisonment and a fine  of Rs.  1,000 by the Court of Session.  During the pendency  of the  appeal  in the High Court, the appellant, who  had  not been released on bail, died in jail.  The matter was  placed before  a  Division  Bench  of  Melvill  and  Kemball,   JJ. Melvill, J., held that the appeal had abated on the death of the  appellant,  and the functions of the High Court  as  an Appellate Court, ceased.  He also held that as there was no (1)  (1878) I.L.R. 2 Bom. 564. 69 error  of  law in the order of conviction, nor had  it  been shown that the sentence was too severe, the High Court could not  exercise  its powers as a Court of  Revision.   In  the course  of  his  judgment, he pointed  out  that  the  legal representative,  of  the deceased convicted  person  is,  no doubt,  interested in procuring a reversal of a sentence  of fine  or  of  forfeiture of property, but  as  the  Code  of Criminal Procedure, 1872 (Act X of 1872), did not confer any right of appeal on the legal representative after the  death of the convict, the appeal could not be heard and determined on  merits.  Kemball, J., agreed with Melvill, J., that  the legal  representative  of  the deceased  convict  could  not prosecute  the appeal, but he did not agree with him in  the view  that the appeal bad abated, and that the functions  of the  High Court as the Appellate Court,, came to an  end  on the  death of the appellant.  He took the view -that as  the record  was  before  the Court, the Court  could  pass  such orders in the appeal as it thought proper.  His view appears to  have been that with the death of the  convicted  person, the  question of serving out the whole or a portion  of  the sentence  of  imprisonment,  no more survived,  but  as  the property of the deceased convict, in the hands of the  legal representative,  continued to be liable for the  payment  of the  fine, if unpaid during the period provided by  law,  it was  the  interest of the legal representative to  have  the case  considered  on  merits.  Ultimately, he  came  to  the conclusion that there was no doubt that the High Court could dispose  of  the case as a Court of Revision,  but  he  also thought  that  the Court was bound to decide the case  as  a Court of Appeal.  On this difference of opinion between  the two  learned Judges, the matter was placed before  Westropp, C.  J.  The learned Chief Justice agreed with  Melvill,  J., that the Code had not made any provision for the continuance of  an  appeal  by the legal representative  of  a  deceased convict, nor did the High Court have the power to deal  with the  appeal on the death of the convicted person.  He  based his conclusion substantially on the ground that the right to appeal or to continue an appeal already pending, is 70 given  by  Statute expressly or  by  necessary  implication. This  view  now finds statutory recognition in s.  431.   He also held that though the appeal had abated, the High  Court had  the  power  to call for the  record  and  exercise  its revisional  jurisdiction suo motu, but he did  ,not  express any  opinion  whether in the case before the Court,  such  a power could be exercised. In  our opinion, in the absence of statutory provisions,  in terms  applying to an application in revision, as there  are those  in  s. 431 in respect of criminal appeals,  the  High Court  has the power to pass such orders as to it  may  seem fit  and proper, in exercise of its revisional  jurisdiction vested  in  it  by  s. 439 of the Code.   Indeed,  it  is  a discretionary  power  which has to be exercised  in  aid  of justice.   Whether or not the High Court will  exercise  its revisional  jurisdiction in a given case, must  depend  upon

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

the  facts and circumstances of that case.   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 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 to appeal, where one exists, cannot be denied in exercise of the  discretionary  power  even  of  the  High  Court.   The Legislature has, therefore, specifically provided, by s. 431 of  the Code, the rules governing the right of  substitution in  case  of  death  of  an  appellant,  but  there  is   no corresponding  provision in Chapter XXXII, dealing with  the question  of  abatement and the right of substitution  in  a criminal  revision.  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 Legislature intended that ail  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. 71 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.  The High Court is not bound to entertain an application in revision, or having entertained one, to order substitution in every case.  It is not  bound  the  other  way,  namely,  to  treat  a  pending application  in revision as having abated by reason  of  the fact that there was a composite sentence of imprisonment and fine,  as some of the single Judge decisions  placed  before us,  would seem to indicate.  The High Court has  been  left complete  discretion  to deal with a pending matter  on  the death of the petitioner in accordance with the  requirements of justice.  The petitioner in the High Court may have  been an  accused person who has been convicted and sentenced,  or he  may have been a complainant who may have  been  directed under  s. 250 of the Code to pay compensation to an  accused person  upon his discharge or acquittal.  Whether it was  an accused  person  or it was a complainant who has  moved  the High Court in its revisional jurisdiction, if the High Court has issued a Rule, that Rule has to be beard and  determined in accordance with law, whether or not the petitioner in the High Court is alive or dead, or whether he is represented in court  by a legal practitioner. In hearing  and  determining cases  under s. 439 of the Code, the High  Court  discharges its statutory function of supervising the administration  of justice  on  the criminal side.  Hence,  the  considerations applying  to  abatement of an appeal, may not apply  to  the case of revisional applications.  In our opinion, therefore, the  Bombay  majority decision (1), in the  absence  of  any statutory  provisions  in  respect  of  criminal  revisional cases, lays down the correct approach. There  are  a number of decisions in the  books,  mostly  of Judges  sitting singly, that though s. 431, in  terms,  does not apply to revisional applications, the principle of  that section applied to such cases.  It is not necessary to refer to those cases specifically.  In view of the fact that  even in the absence of any statutory (1)  (1878) I.L.R. 2 BOM. 564. 72

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

provisions,  we  have held, in agreement with  the  decision aforesaid of the Bombay High Court, 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, it now remains to consider whether the High Court war, right in limiting its power of revision to the question of fine only- whether  it was proper or excessive-without going  into  the merits of the order of conviction.  Once it is held that the High Court’s revisional jurisdiction is attracted to such  a case, it is difficult to limit the exercise of such a  power in  the  way the High Court has done.  Under s. 439  of  the Code, the discretion is vested in the High Court to exercise such  of  the  powers  of an  Appellate  Court,  as  may  be attracted to the case, and it has also the power to  enhance a  sentence  subject  to the proviso that no  order  to  the prejudice of an accused person, shall be made unless he  has had the opportunity of being heard.  In the instant case, we are  not  concerned  with the  question  of  enhancement  of sentence;  we are concerned with the question whether  there is any provision in the Code, which limits the discretionary power  of  the  High Court to  examine  the  "  correctness, legality  or propriety of any finding, sentence or order  "- (s. 435), passed by any inferior Court.  On the death of the convicted person, the question of his serving the whole or a portion  of  his sentence of imprisonment, does  not  arise. But  the  sentence  of fine still remains  to  be  examined- whether it was well founded in law.  This question cannot be effectively gone into unless the order of conviction  itself is  examined on its merits.  If the fact that the fine  will have to be paid out of the estate of the deceased  appellant or petitioner in revision, is the ground for giving the heir or legal representative a right - to continue the appeal  or a  privilege  of maintaining or continuing a  revision,  the same   principle   should  entitle  him  to   question   the correctness of the conviction itself, for, if the conviction remains,  at least some fine, however nominal, will have  to be paid by the heir or 73 the legal representative out of the estate of the  deceased. In  our opinion, therefore, where the High Court  thinks  it fit  and proper to entertain an application in  revision  or calls  for the record suo motu, it has the power to  examine the whole question of the correctness, propriety or legality of   the  sentence  of  fine,  which  necessarily   involves examining the order of conviction itself from that point  of view. For  the reasons aforesaid, we allow the appeal,  and  remit the  case to the High Court to be dealt with  in  accordance with law.                                   Appeal allowed.