Kerala High Court
Srikantan vs State Of Kerala on 17 November, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
MONDAY, THE 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938
Crl.Rev.Pet.No. 4474 of 2006 ( )
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AGAINST THE JUDGMENT IN CRL.APPEAL NO. 362/1999 of ADDITIONAL
DISTRICT & SESSIONS FAST TRACK COURT-1, THIRUVANANTHAPURAM
DATED 17-11-2006
AGAINST THE JUDGMENT IN CC 285/1997 of JUDICIAL MAGISTRATE OF FIRST
CLASS-I,ATTINGAL DATED 31-08-1999
REVISION PETITIONER(S)/APPELLANT/ACCUSED:
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SRIKANTAN, S/O.GOVINDAN,
DEVAKI SADANAM, VAYALIKULAM, MARKET ROAD,
ATTINGAL,CHITTATTINKARA DESOM, ATTINGAL VILLAGE.
BY ADV. SRI.C.C.THOMAS (SR.)
RESPONDENT(S)/RESPONDENT/COMPLAINANT:
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STATE OF KERALA,REPRESENTED BY
THE CIRCLE INSPECTOR OF POLICE,
ATTINGAL, THIRUVANANTHAPURAM DISTRICT
BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. C.N. PRABHAKARAN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 08-08-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
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P.D. RAJAN, J.
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Crl.R.P. No.4474 of 2006
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Dated this the 8th day of August, 2016
ORDER
This revision petition is preferred by the accused against the judgment in Crl.Appeal No.362/1999 of Additional District and Sessions Judge, Fast Track Court-I, Thiruvananthapuram. He was charge sheeted in C.C. No.285/1997 of Judicial First Class Magistrate Court-I, Attingal. The learned Magistrate convicted the accused u/s.55(a) of the Abkari Act and sentenced to simple imprisonment for one year and fine of 25,000/-. Against that, he preferred the Criminal Appeal before Additional District and Sessions Judge, Fast Track Court- I, Thiruvananthapuram, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, he preferred this revision petition.
Crl.R.P. No.4474/2006 2
2. The charge against the accused is that on 4.11.1996 at 8 p.m., he was found in possession of 75 litres of arrack in six cans in the compound of his house at Attingal by the Circle Inspector of Police, Attingal. The accused was arrested and the contraband articles were seized. Attingal Police registered a crime and after completing investigation, Circle Inspector, Attingal laid charge in the Judicial First Class Magistrate Court-I, Attingal. During trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P4. MO1 and MO2 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him.
3. When the matter came up for hearing, the learned counsel for the revision petitioner submitted that the accused died. This Court obtained a report from the Sub Inspector of Police, Attingal along with Death Certificate, which is marked as Ext.C1. As per Ext.C1, the revision petitioner died on on 13.10.2013. No legal heirs are Crl.R.P. No.4474/2006 3 impleaded in this case for continuing the revision.
4. According to Section 394 Cr.P.C., every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. Section 394 Cr.P.C. reads as follows:
"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." Proviso says that if 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. According to Section 394(2) Cr.P.C., every other appeal (except an appeal Crl.R.P. No.4474/2006 4 from a sentence of fine) shall finally abate on the death of the appellant. But in case of revision even after the death of the revision petitioner, the revision would survive. S.394 Cr.P.C. applies only to appeals alone and in the absence of any statutory provision, High Court has power to pass appropriate orders in exercise of its revisional jurisdiction.
5. Five Judges Bench of the Apex Court in Pranab Kumar Mitra v. State of W.B. and another [ AIR 1959 SC 144] considered the question of abatement in revision and observed that where the High Court thinks it fit and proper to entertain an application in revision or calls for the record suo motu then notwithstanding the death of the convicted person pending the revision 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. While adverting to the above contention, I have considered the evidence of the witnesses who detected the Crl.R.P. No.4474/2006 5 offence. PW5 deposed that on 4.11.1996 he got information that illicit arrack was kept in the house of the accused, at 8 p.m. he proceeded to the house of the accused. During inspection of the compound, he detected six cans arrack and seized after preparing Ext.P1 mahazar. MO1 and and MOII are the cans seized from the place of occurrence. He registered a crime. Ext.P2 is the FIR. Ext.P3 is the ownership certificate issued from the Attingal Municipality showing that the house belongs to the accused. The seized articles were sent to the chemical examiner's lab. Ext.P4 is the chemical examination report. After completing investigation, he laid charge in the trial Court. PW2 deposed that on 4.11.1996 at 7.45 p.m., while he was conducting patrol duty with Circle Inspector, he saw the seizure of five cans each containing 10 litres capacity and one can has 35 litres capacity. All the cans were seized and marked as MO1 series and MOII. PW3 and PW4 Police Officials also supported the evidence of PW2. PW1 is a mahazar witness, Crl.R.P. No.4474/2006 6 who attested Ext.P1 mahazar. But, he did not see the seizure of arrack. Even though these witnesses were cross examined by the defence counsel, nothing has been brought out to discredit the evidence of PW2, PW3 and PW5. The direct oral testimony of PW2 to PW5 is corroborating the prosecution case. Nothing has been brought out by the defence counsel to discard the evidence of official witnesses.
7. The Courts below rightly appreciated the evidence and convicted the accused. I do not find any illegality or irregularity in the judgments of the Court below. Therefore, there is no merit in this revision petition and it is dismissed accordingly.
P.D. RAJAN, JUDGE.
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