http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (crl.)  1446-1450 of 2004

PETITIONER: State of A.P.                                                            

RESPONDENT: S. Narasimha Kumar & Ors.                                        

DATE OF JUDGMENT: 13/07/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T CRIMINAL MISC. PETITION NO. 2335 OF 2005

IN .

CRIMINAL APPEAL NOS. 1446-1450 OF 2004

ARIJIT PASAYAT, J.

       This petition has been filed by wife of one D.V.  Chandrasekhar who was accused no.3 in C.C. No.53/1990  and was respondent no.3 in the appeal.  It is to be noted that  the appeal has been filed against the judgment rendered by a  learned Single Judge of the Andhra Pradesh High Court  disposing of several Criminal Revision petitions.   

       All those revision petitions related to the judgment of the  Court of the VII Additional Munsif Magistrate, Guntur in C.C.  No.53 of 1990.  The accused persons are described as A-1, A- 2, A-3 etc.  A-1 was charged with offences punishable under  Sections 381, 411 and 120-B of the Indian Penal Code, 1860  (in short ’IPC’); A-2 to A-11 and A-15 were charged with  offences punishable under  Sections 120-B  and  414 I.P.C.    A-12 to A-14 were charged with offence punishable under  Section 411 I.P.C.  A-4 died during the trial of the case. The  case against A-10 was separated.  Through its Judgment  dated 26.11.2000 the trial Court convicted the above said  accused persons for the offences alleged against them and  awarded sentences of various descriptions.

       The High Court set aside the conviction and sentence  imposed in respect of the concerned respondents.  In the  appeal as noted above, the deceased D.V. Chandrasekhar who  was A-3 is the respondent in the Criminal Appeal relating to  Criminal Revision no.1424 of 2001. The applicant has filed the  present appeal stating that on the death of the said  respondent the appeal abated so far he is concerned.  The  logic of Section 394 of the Code of Criminal Procedure, 1973  (in short ’Cr.P.C.’) was pressed into service.  Learned counsel  for the State on the other hand submitted that Section 394  Cr.P.C. does not govern the case of an appeal by special leave  before this Court.  

       The aforesaid D.V. Chandrasekhar died on 15.1.2004  and leave has been granted on 6.2.2004.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

       It is conceded by learned counsel for the parties that  neither in the Cr.P.C. nor in the Supreme Court Rules there is  any provision dealing with such a situation. Section 394  Cr.P.C. reads as follows:

"394. Abatement of appeals. \026 (1) Every appeal  under Section 377 or Section 378 shall finally  abate on the death of the accused.

(2)     Every other appeal under this Chapter  (except an appeal from a sentence of fine) shall  finally abate on the death of the appellant:

       Provided 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 near  relatives may, within thirty 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.

       Explanation \026 In this section, "near  relative" means a parent, spouse, lineal  descendant, brother or sister."        

       It is to be noted that Section 394 Cr.P.C. corresponds to  Section 431 of the Code of Criminal Procedure, 1898 (in short  the ’Old Code’).

       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 be the effect of the  sentence on his property in the hands of his legal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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).

       Again in Harnam Singh v. The State of Himachal Pradesh  (1975 (3) SCC 343) the question was examined, and above  principles were re-iterated.  It was, inter alia, held as follows:

"6.     These contentions require an  examination of Section 431 of the Code which  reads thus:

       "Every appeal under Section  411A, sub-section (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.  

7.      The appeal before us was filed by special  leave granted under Article 136 of the  Constitution and is neither under Section  411A(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  interest 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

8.      Chapter XXXI of the Code of 1898, called  "Of Appeals" contains provisions  governing appeals. The chapter opens  with Section 404 which provides that no  appeal shall lie from any judgment or  order of a Criminal Court except as  provided for by the Code or by any other  law for the time being in force and ends  with Section 431 which deals with  abatement of appeals. Section 411A(2)  provides for appeals to the High Court  from orders of acquittal passed by the  High Court in the exercise of its original  criminal jurisdiction. Section 417 deals  with appeals to the High Court from  original or appellate orders of acquittal  passed by courts other than a High  Court. By Section 431, appeals against  acquittal filed under Section 411A(2) or  Section 417 finally abate on the death of  the accused. Dead persons are beyond  the processes of human tribunal and  recognizing this, the first limb of Section  431 provides that appeals against  acquittals finally abate on the death of  the accused. Where a respondent who  has been acquitted by the lower court  dies, there is no one to answer the charge  of criminality, no one to defend the  appeal and no one to receive the  sentence. It is of the essence of criminal  trials that excepting cases like the release  of offenders on probation, the sentence  must follow upon a conviction. Section  258(2), Section 306(2) and Section 309(2)  of the Code provide, to the extent  material, that where the Magistrate or the  Sessions Judge finds the accused guilty  and convicts him he shall, unless he  proceeds in accordance with the  provisions of Section 562, pass sentence  on the accused according to law.

9.      Every other appeal under Chapter XXXI,  except an appeal from a sentence of fine,  finally abates on the death of the  appellant. By "every other appeal" is  meant an appeal other than one against  an order of acquittal, that is to say, an  appeal against an order of conviction.  Every appeal against conviction therefore  abates on the death of the accused except  an appeal from a sentence of fine.  An  appeal from a sentence of fine is excepted  from the all pervasive rule of abatement  of criminal appeals for the reason that  the fine constitutes a liability on the  estate of the deceased and the legal  representatives on whom the estate  devolves are entitled to ward off that  liability. By Section 70 of the Penal Code  the fine can be levied at any time within  six years after the passing of the sentence  and if the offender has been sentenced for  a longer period than six years, then at

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

any time previous to the expiration of  that period; "and the death of the  offender does not discharge from the  liability any property which would, after  his death, be legally liable for his debts".  The fact that the offender has served the  sentence in default of payment of fine is  not a complete answer to the right of the  Government to realize the fine because  under the proviso to Section 386(1)(b) of  the Code the court can, for special  reasons to be recorded in writing issue a  warrant for realizing the fine even if the  offender has undergone the whole of the  imprisonment in default of payment of  fine. The sentence of fine remains  outstanding though the right to recover  the fine is circumscribed by a sort of a  period of limitation prescribed by Section  70, Penal Code.

10.     The narrow question which then requires  to be considered is whether an appeal  from a composite order of sentence  combining the substantive imprisonment  with fine is for the purposes of Section  431 not an appeal from a sentence of  fine. It is true that an appeal from a  composite order of sentence is ordinarily  directed against both the substantive  imprisonment and the fine. But, such an  appeal does not for that reason cease to  be an appeal from a sentence of fine. It is  something more not less than an appeal  from a sentence of fine only and it is  significant that the parenthetical clause  of Section 431 does not contain the word  "only". To limit the operation of the  exception contained in that clause so as  to take away from its purview appeals  directed both against imprisonment and  fine is to read into the clause the word  "only" which is not there and which, by  no technique of interpretation may be  read there. The plain meaning of Section  431 is that every criminal appeal abates  on the death of the accused "except an  appeal from a sentence of fine". The  section for its application requires that  the appeal must be directed to the  sentence of fine and not that it must be  directed to that sentence only. If by the  judgment under appeal a sentence of fine  is imposed either singularly or in  conjunction with a sentence of  imprisonment, the appeal against  conviction would be an appeal from a  sentence of fine within the meaning of  Section 431. All that is necessary is that  a sentence of fine should have been  imposed on the accused and the appeal  filed by him should involve the  consideration of the validity of that  sentence.

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

11.     It is difficult to discern any principle  behind the contrary view. The reason of  the rule contained in the exception is that  a sentence of fine operates directly  against the estate of the deceased and  therefore the legal representatives are  entitled to clear the estate from that  liability. Whether or not the sentence of  fine is combined with any other sentence  can make no difference to the application  of that principle."   

       In view of what has been stated in the aforesaid two  cases, the appeal filed by the Stated of Andhra Pradesh so far  it questions correctness of the judgment in Criminal Revision  no.1424 of 2001 stands abated on the death of the respondent  D.V. Chandrasekhar (A-3). The cause title shall indicate the  applicant’s name to avoid confusion.  The application is  accordingly disposed of.