Jharkhand High Court
Raja Tudu vs State Of Jharkhand on 4 April, 2024
Author: Navneet Kumar
Bench: Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 29 of 2005
Raja Tudu ...... Appellant
Versus
State of Jharkhand .... ... Respondents
CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE NAVNEET KUMAR For the Appellant : None For the State : Mr. Vineet Kumar Vashistha, Spl. PP Order No.06/Dated: 4th April 2024 The appellant has challenged the judgment in Sessions Case No. 784 of 1993 dated 3rd September 2003 and the order of sentence passed on the same day whereunder he has been convicted and sentenced to rigorous imprisonment for life under section 302 of the Indian Penal Code and RI for 10 years under section 307 of the Indian Penal Code.
2. No one appears for the appellant.
3. However, Mr. Vineet Kumar Vashistha, the learned Spl. PP who appears for the State of Jharkhand has apprised this Court that the sole appellant passed away on 14th December 2023.
4. The learned Spl. PP has tendered a copy of the communication dated 2nd April 2024 from the Officer In-charge, Barhat PS in the district of Sahebganj. To show that the sole appellant has died, the death certificate and a certificate from the Mukhiya of Gram Panchayat Phulbhanga, Barhat, Sahebganj have been brought on record.
5. Taken on record.
6. The learned Spl. PP refers to the provision under sub-section 2 to section 394 of the Code of Criminal Procedure to submit that now this criminal appeal has been rendered infructuous.
7. Section 394 of the Code of Criminal Procedure 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."
8. In "Ramesan v. State of Kerala" (2020) 3 SCC 45 the Hon'ble Supreme Court has held as under:
16. The above judgment categorically laid down that even if sentence of fine is imposed along with the sentence of imprisonment under Section 431, such appeal shall not abate. The similar expression, which was used in Section 431 i.e. "except an appeal from the sentence of fine" has been used in Section 394 CrPC. Thus, the appeal in the present case where the accused was sentenced for imprisonment as well as for fine has to be treated as an appeal against fine and was not to abate and the High Court did not commit any error in deciding the appeal on merits.
17. This Court had occasion to consider Section 394 CrPC in Lakshmi Shanker Srivastava v. State (Delhi Admn.) [Lakshmi Shanker Srivastava v. State (Delhi Admn.), (1979) 1 SCC 229 : 1979 SCC (Cri) 269] .
In the above case, the accused was sentenced to suffer rigorous imprisonment for 18 months on each count and a fine of Rs 200. The accused had died during pendency of the appeal in this Court and argument was raised that in view of the above, the appeal abates and cannot be proceeded with. Such argument was noticed in para 4, which is to the following effect: (SCC pp. 230-31) "4. Mr H.R. Khanna, learned counsel who appeared for the respondent raised a preliminary objection. It was urged that the appellant died during the pendency of this appeal and, therefore, the appeal abates and cannot be proceeded with. Simultaneously it was urged that if the appeal were not to abate on the only ground that the appellant was also sentenced to pay a fine of Rs 200 and, therefore, it may be said that right to property of the legal representatives may be adversely affected and, therefore, they would be entitled to continue the appeal, the respondent State is prepared to concede that the sentence of fine may be set aside."
18. In the above case, a leave was obtained under the proviso to Section 394(2) by legal heirs to continue the appeal. This Court had overruled the primary objection that appeal should abate although relying on the proviso to Section 394(2). The principle regarding non-abatement of the appeal from a sentence of fine as contained in Section 431 CrPC, 1898 as well as Section 394 of the present CrPC is the same. A similar legislative scheme has been contained, which was occurring in Section 431 CrPC, 1898, hence, judgment of this Court regarding interpretation of Section 431 CrPC as has been done by this Court in Bondada Gajapathi Rao [Bondada Gajapathi Rao v. State of A.P., AIR 1964 SC 1645 : (1964) 2 Cri LJ 598] and Harnam Singh [Harnam Singh v. State of H.P., (1975) 3 SCC 343 : 1974 SCC (Cri) 951] shall squarely apply to the interpretation of Section 394 CrPC.
9. Having regard to the order of sentence which indicates that sentence of fine was not inflicted upon the convict, Criminal Appeal (DB) No. 29 of 2005 is dismissed as abated.
(Shree Chandrashekhar, A.C.J.) (Navneet Kumar, J.) Tanuj 2 Criminal Appeal (DB) No. 29 of 2005