Punjab-Haryana High Court
Ladha Singh vs State Of Haryana on 1 November, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRA S-1940-SB of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
CRA S-1940-SB of 2002
Date of Decision: November 01, 2012
Ladha Singh
... Appellant
Versus
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?.
2) To be referred to the Reporters or not ?.
3) Whether the judgment should be reported in the Digest ?
Present: None for the appellant.
Mr. Subhash Godara, Addl. A.G., Haryana.
Paramjeet Singh, J.
In the present case, the appellant was convicted and sentenced by the learned Trial Court for offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the "Act") and ordered to suffer imprisonment for 7 years rigorous imprisonment and to pay a fine of Rs.25,000/- and in default to further undergo RI for a period of two years.
A death certificate has been placed on record by the learned State counsel to the effect that appellant has died on 01.11.2007. Till date CRA S-1940-SB of 2002 2 no near relative of the appellant has applied for leave to continue with the appeal.
Since the appellant has expired, the sentence of rigorous imprisonment for the aforesaid offence under Section 15 of the Act stands abated. However, the question which falls for consideration of this Court is as to whether in a case where fine is imposed by the trial court apart from imposing sentence of rigorous imprisonment, on death of the appellant does the appeal abate qua fine also?
In this context, it would be relevant to examine section 394 of Cr.P.C. which deals with the provision of abatement of appeal and it reads as under:
"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."
CRA S-1940-SB of 2002 3Perusal of this section, clearly indicates that an exception is carved out in the cases where an appeal is filed from a sentence of fine. Except such an appeal, every other appeal under the Chapter XXIX of the Code of Criminal Procedure, 1973 would abate on the death of the Appellant. Secondly, there is a proviso to sub-clause (2) which stipulates that even in a case where an appeal is filed against conviction and sentence of death or imprisonment and the Appellant dies during the pendency of the appeal, a provision is made whereby any of his relative can make an application within a period of 30 days from the date of the death of the Appellant for continuation of the appeal by them and if on such application being made, leave is granted by the Court, then in that event, the appeal would not abate and the legal representatives would be permitted to continue the said appeal.
Perusal of sub-clause (2) clearly reveals that legislature in its wisdom has made an exception in cases of an appeal filed from a sentence of fine. It is obvious that the said exception is made in such a case since even after the death of the Appellant, the State would be entitled to recover that amount from his estate where he has a share in the said property.
The Apex Court in Hari Prasad Chhapolia v. Union of India, (2008)7 SCC 690 had considered the aforesaid question and the judgments in the case of Harnam Singh v. State of Himachal Pradesh, (1975)3 SCC 343, State of A.P. v. S. Narasimha Kumar and Ors., (2006)5 SCC 683 and S. Kameshwar Rao v. State, 1991 Supp (1) SCC 377 and it has been held in the case of Hari Parsad Chhapolia (supra) as under:- CRA S-1940-SB of 2002 4
"9. In view of what has been stated by this Court in the afore-noted 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 application was filed nearly after one year. We need not go into the question as to whether there is scope for condonation of delay as no acceptable explanation has been offered for the delayed presentation.
10. Several times the matter was adjourned at the request of learned counsel who appeared for the original appellant. The plea that the legal heirs did not know the requirement is clearly without any substance. The appeal has abated on the death of the appellant and is disposed of accordingly."
In the present case no application has been filed by any of the relatives of the appellant within the time prescribed under the said proviso, in my view, it would be appropriate to permit the Counsel already engaged by the appellant to make his submissions in respect of the merits of the appeal.
From the proviso to sub-section (2) of Section 394 of Cr.P.C, it is obvious, that an application for continuation of appeal and for making a statement that the applicant is the near relative, such near relative is enjoined within the time prescribed by the said proviso to approach the court as stated above, facilitating the continuance of the appeal notwithstanding the death of the appellant during the pendency of the appeal but that unfortunately not being the position, it is obvious that this CRA S-1940-SB of 2002 5 court cannot decide the appeal on merits even qua sentence of fine for want of application by legal representatives.
The principle is that if the LRs did not pursue the appeal, the appeal has to abate on the death of the appellant.
The sentence of imprisonment for 7 years RI and for two years in default on payment of fine (i.e. Substantive sentence and default sentence) stand abated on the death of the appellant, in my view, the sentence of fine no more exists and therefore, there is no reason to maintain and continue the order imposing the fine of Rs.25,000/- as the default clause of imprisonment in lieu of this already stands abated. Identical view has been expressed by a Division Bench of Bombay High Court in Gopala Balu Kamble v. State of Maharashtra, 2012(2) Bom CR 789:2012(3) Mh JL 346. I am of the opinion that non payment of fine would have led to further imprisonment, in sum and substance, the order to pay fine is that of sentence of imprisonment for failure to pay fine. There appears no logic in insisting upon the payment of fine, then it would amount to going beyond the order of sentence passed by the Trial Court. Insistence on recovery may be justified where the default clause of the sentence is not there or it is in lieu of compensation awarded under Section 357 of the Code of 1973. Therefore, the appeal abates in entirety. Ordered accordingly.
Present appeal stands disposed of.
November 01, 2012 [Paramjeet Singh] vkd Judge