Allahabad High Court
Sarvesh Kumar (Objection Filed) vs The State Of U.P.& Another. on 27 March, 2015
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved
A.F.R.
Case :- U/S 482/378/407 No. - 2879 of 2005
Applicant :- Sarvesh Kumar (Objection Filed)
Opposite Party :- The State Of U.P.& Another.
Counsel for Applicant :- Prabhat Kumar
Counsel for Opposite Party :- Govt.Advocate
Hon'ble Akhtar Husain Khan,J.
Present petition has been moved under Section 482 Cr.P.C by petitioner, Sarvesh Kumar, with prayer to set aside order dated 23.11.2005 passed by opposite party no.2, Additional District and Sessions Judge, Court No.4, Hardoi in S.T. No. 86/1993 Annexure No.6 to the petition.
I have heard learned counsel for petitioner as well learned A.G.A.
Learned counsel for petitioner contended that Ram Swaroop, father of petitioner Sarvesh Kumar, was convicted and sentenced along with others vide judgment and order dated 24.3.1995 passed by learned 4th Additional District and Sessions Judge, Hardoi in S.T. No.86/1993, under Sections 323/34, 325/34, 308/34 and 452 I.P.C. Thereafter, Ram Swaroop, father of petitioner along with other co-accused filed Criminal Appeal No.169/1995, Ram Swaroop and others versus State against said judgment and order passed by Additional Sessions Judge.
Learned counsel for petitioner contended that during pendency of said appeal accused-appellant, Ram Swaroop, father of petitioner died but without taking into consideration the factum of death of accused-appellant, Ram Swaroop, this High Court decided the said appeal vide order dated 24.1.2003 and dismissed the appeal but modified sentences awarded by trial court by converting sentences of imprisonment into fine only. Thereafter, learned Additional District and Sessions Judge-4th, Hardoi has passed impugned order dated 23.11.2005 in compliance of judgment and order dated 24.1.2003 passed by High Court and has directed to issue recovery warrant against deceased, Ram Swaroop.
Learned counsel for petitioner contended that on death of petitioner's father, appeal stood abated. Therefore, dismissal of appeal against petitioner's father is against law and the order passed in appeal cannot be executed against the deceased accused appellant.
Learned counsel for petitioner further contended that fine imposed on accused-appellant, Ram Swaroop by appellate court cannot be recovered from petitioner.
In view of submission made above, learned counsel for petitioner contended that order dated 23.11.2005 should be set aside.
Learned A.G.A. opposed petition and contended that there is nothing on record to show that accused-appellant Ram Swaroop was dead at the time of judgment of appeal.
Learned A.G.A. further contended that fine imposed on the accused may be recovered from movable and immovable properties of accused even after his death in accordance with provisions of Section 421 of Cr.P.C.
Learned A.G.A. contended that petition moved by petitioner under Section 482 Cr.P.C. has no merits and should be dismissed.
I have considered the submissions made by the learned counsel for parties.
Admittedly, Criminal Appeal No.169/1995, Ram Swaroop and 3 others versus State of U.P. filed against judgment and order dated 21.2.1995 passed by 4th Additional District and Sessions Judge, Hardoi in S.T. No.86/1993, under Sections 323/34, 325/34, 308/34 and 452 I.P.C has been decided vide order dated 24.1.2003 passed by this Court whereby appeal has been dismissed but sentences of imprisonment awarded by trial court were modified into fine and in default of payment of fine, rigorous imprisonment has been ordered for each amount of fine separately.
Perusal of impugned judgment dated 24.1.2003 passed by this Court in aforesaid Criminal Appeal shows that there is nothing on record to show that accused-appellant Ram Swaroop, who is father of present petitioner Sarvesh Kumar was dead at the time of judgment of said appeal.
It is apparent from perusal of judgment and order dated 24.1.2003 passed by this Court that the Court has passed this judgment and order after hearing the learned counsel for the parties and no submission has been made by learned counsel for accused-appellants regarding death of accused-appellant, Ram Swaroop.
Perusal of record of present petition moved under Section 482 Cr.P.C. shows that certified copy of death register of aforesaid Ram Swarooop has not been filed by petitioner. Petitioner has filed only copy of certificate given by Pradhan regarding death of Ram Swaroop in which Pradhan has certified that Ram Swaroop son of Sukhi has died on 8.11.1997. In absence of copy of death register of said Ram Swaroop, this certificate of Gram Pradhan given in the year 2005 cannot be accepted as an evidence regarding date and time of death of aforesaid Ram Swaroop.
After having gone through all documents and materials on record, I am of the view that there is nothing on record to show that accused-appellant, Ram Swaroop, father of petitioner Sarvesh Kumar died before judgment dated 24.1.2003 passed by this Court in aforesaid appeal No.169 of 1995.
Perusal of Section 421 of Criminal Procedure Code shows that when offender has been sentenced to pay fine, the fine may be recovered from his movable or immovable properties. Therefore, the fine awarded against accused Ram Swaroop shall be recovered from his movable or immovable properties inherited by petitioner in accordance with law even after death of accused Ram Swaroop.
In view of discussion made and conclusion drawn above, I am of the view that there is no justification for interference under Section 482 Cr.P.C. in impugned order dated 23.11.2005 passed in compliance of judgment and order dated 24.1.2003 passed by this Court in Criminal Appeal No.169 of 1995, Ram Swaroop and others versus State of U.P. Petition moved under Section 482 Cr.P.C. is dismissed accordingly.
Order Date :- 27.3.2015 Rabindra Kumar