Punjab-Haryana High Court
Charan Singh vs State Of Punjab on 29 August, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
Crl. Appeal No.S-638-SB of 2001 -: 1 :-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Appeal No.S-638-SB of 2001
Date of decision: August 29, 2012.
Charan Singh
... Appellant(s)
v.
State of Punjab
... Respondent(s)
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
Present: Ms. Monika Jalota, Advocate, amicus curiae for the appellant.
Shri K.S. Aulakh, Assistant Advocate General, Punjab.
Paramjeet Singh, J.
In the present case, the appellant was convicted and sentenced by the trial court for offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act' for brevity) and ordered to suffer imprisonment for 10 years rigorous imprisonment and to pay a fine of Rs.1 (one) lac and in default to further undergo RI for a period of one year.
This Court, vide order dated July 13, 2012, had ordered issuance of bailable warrants to secure the presence of the appellant, returnable on 14.8.2012, as nobody had put in appearance for the appellant on the previous dates. In pursuance of the bailable warrants, learned Chief Judicial Magistrate, Ludhiana has reported vide communication dated 28.7.2012 that the appellant has died on 7.7.2006. He has also produced on Crl. Appeal No.S-638-SB of 2001 -: 2 :- record through the aforesaid communication, a photocopy of the death certificate of the appellant. From the death certificate, it is apparent that the appellant has expired. Till date 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 Narcotic Drugs & Psychotropic Substances Act, 1985 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 Crl. Appeal No.S-638-SB of 2001 -: 3 :- 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."
Perusal 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 Crl. Appeal No.S-638-SB of 2001 -: 4 :- 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:-
"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, 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 Crl. Appeal No.S-638-SB of 2001 -: 5 :- notwithstanding the death of the appellant during the pendency of the appeal but that unfortunately not being the position, it is obvious that this court cannot decide the appeal on merits even qua sentence of fine for want of application by legal representatives.
In the present case, bailable warrants of the appellant were issued as Counsel representing the original appellant did not appear and amicus curiae was appointed to assist the Court. As stated in earlier part of the order, during course of execution of bailable warrants it revealed that appellant has died. No LR of deceased appellant has come forward to contest the appeal. The principle is that if the LRs do not pursue the appeal, the appeal has to abate on the death of the appellant.
Learned amicus curiae appearing for the original appellant has taken this court through the impugned judgment and order passed by the trial court and also through the evidence. So far as the sentence of imprisonment for 10 years RI and for six months 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.1.00 lac 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, son in 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 Crl. Appeal No.S-638-SB of 2001 -: 6 :- 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.
[ Paramjeet Singh ] August 29, 2012. Judge kadyan