Patna High Court
Vikash Kumar vs The State Of Bihar on 9 December, 2019
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.245 of 2016
Arising Out of PS. Case No.-149 Year-2014 Thana- AHIYAPUR District- Muzaffarpur
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Vikash Kumar, son of Late Kunni Baus, Resident of Village- Lakari Dhahi East of Bandh, Renter in house of Shiv Nath Sahni, Police Station- Ahiyapur, District- Muzaffarpur.
... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :
For the Appellant/s : Mr. Raju Kumar, Adv. For the Respondent/s : Mr. S.A.Ahmad, APP
====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. JUDGMENT Date : 09-12-2019 A puzzle has come up which needs in depth scrutiny.
The learned counsel for the appellant after reporting the matter regarding death of the sole appellant Vikash Kumar being under judicial custody, on account of serving of sentence duly corroborated by the jail authority on report so called for, failed to turn up and also failed to bring the legal heirs, if any, on record as, appellant Vikash Kumar (since deceased) has been sentenced to undergo R.I. for 10 years as well as to pay fine appertaining to Rs.10,000/- under Section 376(2) (i) of the IPC, under Section 6 of the POCSO Act, respectively as well as to undergo R.I. for five years as well as to pay fine appertaining to Rs.5,000/- for an offence punishable under Section 10 of the POCSO Act with a further direction that the sentences should run concurrently, with a further direction that in default of payment of fine, he will have to Patna High Court CR. APP (SJ) No.245 of 2016 2/13 undergo S.I. for one year, additionally, with a further direction that the period so undergone during the course of trial should be set off in accordance with Section 428 of the Cr.P.C.
2. Now the sole question for consideration is whether in absence of legal heirs, if any, what would be the fate of the instant appeal? For better appreciation, Section 394 of the Cr.P.C. is quoted below:
"394. Abatement of appeals. (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.- In this section,"near relative" means a parent, spouse, lineal descendant, brother or sister."
Abatement- In criminal law, abatement of proceeding connotes their termination without any decision on merits and without the assent of the prosecutor.
From a plain reading of the section itself, it is evident that after death of the accused the appeal so preferred under the guise of Section 377 of the Cr.P.C. at the instance of State challenging the finding of inadequacy of sentence so inflicted by the learned lower court, Section 378 of the Cr.P.C. whereunder an Patna High Court CR. APP (SJ) No.245 of 2016 3/13 appeal against acquittal is being filed would abate. In likewise manner, every other appeal under this Chapter is also to meet with similar fate after death of the appellant except an appeal from a sentence of fine. Furthermore, the proviso also provides a passage to near relative of the appellant to be substituted if so prayed for within thirty days to grant leave to continue with the appeal where the conviction and sentence is of death or of imprisonment.
The basic feature for providing such option, relating to the sentence of fine is based upon theme of inheritance as, after death of the appellant, the property having left by him is to devolve upon his lineal descendants and, the sentence of fine is to be realised from the property possessed by the appellant as per Section 70 of the IPC during his life time and so, the near relatives have got a say against the judgment of conviction and sentence confined to fine and so, substitution is to be carried out in case so prayed for.
3. But, where legal heir did not come forward then in that circumstance, there would not be a question of substitution.
Then in that circumstance, appeal would or would not continue against a dead person where (i) the instant appeal is against the composite judgment of conviction and sentence of imprisonment Patna High Court CR. APP (SJ) No.245 of 2016 4/13 as well as fine and (ii) where only sentence of fine is then, needs to be properly questioned.
4. The substantial sentence is to vanish along with the death of the appellant but, what about fine. After going through Section 394 of the Cr.P.C., it is evident that no such remedial aspect relating thereto has been prescribed. Furthermore, whether in absence of the appellant whose death is duly affirmed will allow the appeal to survive and, be taken up for hearing. The theme of natural justice suggests that no order could be passed against a person without having his presence in the proceeding. Because, the appellant is dead his heirs did not intend to come forward on the record then in that circumstance how the appeal is to be carried on.
5. In Pranab Kumar Mitra vs. State of West Bengal and another reported in AIR 1959 SC 144, it has been held:
"7. 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 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 Patna High Court CR. APP (SJ) No.245 of 2016 5/13 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 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."
6. In State of Kerala vs. Narayani Amma Kamala Devi & others reported in AIR 1962 SC 1530, it has been held:
"(3a) 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 Patna High Court CR. APP (SJ) No.245 of 2016 6/13 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."
7. In Bondada Gajapathi Rao vs. State of Andhra Pradesh reported in AIR 1964 SC 1645 it has been held:
"2. 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 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 (1959) Supp (1) SCR 63: (AIR 1959 SC 144). 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, 1943-1 KB 15. 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, (1959) Supp (1) SCR 63: (AIR 1959 SC 144), 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 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, (1959) Supp (1) SCR 63: (AIR 1959 SC 144) was based on this for on that ground all revision cases should have been permitted to be continued and the permission Patna High Court CR. APP (SJ) No.245 of 2016 7/13 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.
(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 representatives. If the sentence affects that property, the legal representatives can be said to be interested in the proceeding and allowed to continue it."
8. In Harnam Singh vs. the State of Himachal Pradesh reported in (1975) 3 SCC 343 it has been held:
"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 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 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 Patna High Court CR. APP (SJ) No.245 of 2016 8/13 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."
9. In Lakshmi Shanker Srivastava vs. State (Delhi Administration) reported in AIR 1979 SC 451 it has been held:
"7. The present case would, therefore, be governed by sub- sec. (2) of S.394, Criminal P.C. It becomes clear from the proviso to S. 394(2), Cr.P.C. that where the appeal is against the conviction and sentence of imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives may, within the time prescribed therein, apply to the appellate court before which the appeal is pending for leave to continue the appeal and if the leave is granted the appeal shall not abate. The appellant has preferred the appeal against his conviction and sentence of imprisonment as also sentence of fine. After his death his near relations as contemplated in the Explanation to sub-sec. (2) of S. 394, Cr.P.C. applied by Criminal Miscellaneous Petition No. 589 of 1978 to continue the appeal and this Court granted substitution of such near relations by its order dated 28th March 1978 and thereby granted leave to continue the appeal. Therefore, the near relations of the deceased can continue the appeal and even if the respondent State concedes that the sentence of fine be set aside yet the appeal would not abate because the appeal against conviction and sentence of imprisonment would not abate if leave is granted to the near relations of the deceased to continue the appeal. Such leave having been granted, the appeal would not abate. There is thus no merit in the preliminary objection and it must be negatived."
10. In State of Andhra Pradesh vs. S. Narasimha Kumar & others reported in AIR 2006 SC 2924, it has been held:
"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 Patna High Court CR. APP (SJ) No.245 of 2016 9/13 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.
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."
11. In Shankar Prasad Ghosh (dead) vs. State of Bihar and another reported in (2008) 11 SCC 373 it has been held :
Patna High Court CR. APP (SJ) No.245 of 2016 10/13 "4. In State of A.P. v. S. Narasimha Kumar [(2006) 5 SCC 683 : (2006) 3 SCC (Cri) 54] it was noted as follows:
(SCC pp. 685-86, para 6) "6. In Bondada Gajapathi Rao v. State of A.P. [AIR 1964 SC 1645] a three-Judge Bench of this Court was dealing with the situation as to whether appeal by special leave against the sentence of imprisonment abates on the death of the appellant-accused. 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 CrPC) (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 when the appellant-accused dies, pending the appeal.
(2) But where the appeal is against the 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 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 Patna High Court CR. APP (SJ) No.245 of 2016 11/13 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 v. State of W.B. [AIR 1959 SC 144]"
5. In S.V. Kameswar Rao v. State [1991 Supp (1) SCC 377 : 1991 SCC (Cri) 694] it was inter alia observed as follows: (SCC p. 380, para 5) "5. Section 394 of the Code of Criminal Procedure reads that every appeal shall finally abate on the death of the appellant. The proviso to that section says that where the appeal is against a conviction and sentence of death or of imprisonment and the appellant dies during the pendency of the appeal, any of his relatives, which expression is defined by the explanation appended to this proviso may within 30 days of the death of the appellant, apply to the appellate court for leave to continue the appeal; and if leave is granted, the appeal shall not abate. In the present case, none of the relatives of the deceased within the term of the explanation to the proviso has approached this Court within 30 days for leave to continue the appeal. This present application is filed nearly after a period of 10 years. No explanation is given in this application for not approaching the court within that prescribed period and no sufficient cause is shown for condonation of such undue and inordinate delay of 10 years. A decision of this Court in P.S.R. Sadhanantham v. Arunachalam [(1980) 3 SCC 141 :
1980 SCC (Cri) 649] is relied on in the petition wherein it has been held thus: (SCC p. 145, para 7) '7. ... Article 136 is a special jurisdiction. It is residuary power; it is extraordinary in its amplitude, its limit, when it chases injustice, is the sky itself.' "
6. In Harnam Singh v. State of H.P. [(1975) 3 SCC 343 : 1974 SCC (Cri) 951] at paras 7, 14 and 15 it was observed as follows: (SCC pp. 345 & 348) "7. The appeal before us was filed by special leave granted under Article 136 of the Constitution and is neither under Section 411-A(2) nor under Section 417 nor under any other provision of Chapter XXXI of the Code. Plainly therefore, Section 431 has no application and the question whether the appeal abated on the death of the appellant is not governed strictly by the terms of that section. But, in the interests of uniformity, there is no valid reason for applying to appeals under Article 136 a set of rules different from Patna High Court CR. APP (SJ) No.245 of 2016 12/13 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.
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14. If this be the true interpretation of Section 431, there is no reason why the same principle ought not to be extended to criminal appeals filed in this Court under Article 136 of the Constitution. Accordingly the widow of the deceased appellant who has been brought on the record of the appeal as his legal representative is entitled to continue the appeal as the sentence of fine directly affects the property which would devolve on her on the death of her husband.
15. In Bondada Gajapathi Rao v. State of A.P. [AIR 1964 SC 1645] the appellant was convicted by the High Court under Section 302, Penal Code and was sentenced to imprisonment for life. He filed an appeal in this Court by special leave but died during the pendency of the appeal. His sons and daughter applied for substitution as his legal representatives contending that the conviction of their father had resulted in his removal from government service and if the conviction were set aside the estate will be able to claim the arrears of salary from the date of conviction till the date of his death. This Court declined to permit the legal representatives to continue the appeal on the ground that the claim on the strength of which they sought permission to continue the appeal was too remote. This decision is distinguishable as the appeal was not from a sentence of fine and as the interest of the legal representatives was held to be contingent and not direct. Even if the conviction were set aside, the legal representatives would not have automatically got the arrears of salary due to their father."
7. In view of what has been stated by this Court in the aforenoted cases the principles embodied in Section 394 of the Code can be pressed into service in appeals before this Court. It is true that the period of 30 days has been statutorily fixed for making an application by the legal heirs. In the instant case, the applications were filed after about 5 years. We need not go into the question as to whether there is scope for condonation of delay as no explanation has been offered for the delayed presentation. In that view of the matter, the observations of this Court in Kameswar Rao case [1991 Supp (1) SCC 377 : 1991 SCC (Cri) 694] are clearly applicable. The appeal has abated on the death of the appellant Shankar Prasad Ghosh and is disposed of accordingly."
Patna High Court CR. APP (SJ) No.245 of 2016 13/13
12. In the background of aforesaid principle laid down by the Apex Court, it is apparent that the matter needs authoritative adjudication. That being so, matter is referred to the Division Bench, and for which office is directed so after taking nod at the end of Hon'ble the Chief Justice.
(Aditya Kumar Trivedi, J) skpathak/-
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