Punjab-Haryana High Court
Shivji Ram @ Dimple vs State Of Punjab on 24 November, 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
207
IOIN-CRA-S-4686-SB-2018 in
CRA-S-4686-SB-2018
Decided on : 24.11.2022
Shivji Ram @ Dimple
. . . Petitioner(s)
Versus
State of Punjab
. . . Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
PRESENT: Mr. H.S. Randhawa, Legal Aid Counsel with
Mr. H.S. Jalal, Advocate for the appellant.
Mr. J.S. Arora, DAG, Punjab.
****
SANJAY VASHISTH, J. (Oral)
1. Present appeal was filed in the year 2003 against the impugned judgment/order dated 01.07.2016 passed by Judge Special Court, vide which appellant- Shivji Ram @ Dimple was convicted and sentenced for a period of 10 years along with fine of Rs. 1 lac and in default of payment of fine, further rigorous imprisonment for two years, in case FIR No. 50 dated 14.06.2013, under Section 22 (c) of the Narcotic Drugs and Psychotropic Substances Act, registered at Police Station GRP, Bathinda.
2. On 23.11.2022 following order was passed by this Court:
"Present: Mr. H.S. Jalal, Advocate for the appellant.
Mr. M.S. Joshi, Addl. AG, Punjab.
**** In trial, in case FIR No. 50 dated 14.06.2013, under Section 22 (c) of the Narcotic Drugs and Psychotropic Substances Act, registered at Police Station GRP, Bathinda, appellant- Shivji Ram @ Dimple was 1 of 9 ::: Downloaded on - 30-11-2022 23:46:54 ::: IOIN-CRA-S-4686-SB-2018 in CRA-S-4686-SB-2018 -2- convicted and sentenced for a period of 10 years along with fine of Rs. 1 lac, vide judgment/order dated 01.07.2016 passed by Judge Special Court, Bathinda.
Thereafter, vide order dated 29.10.2020 passed by co-ordinate Bench of this Court, appellant- Shivji Ram @ Dimple was granted bail by suspending the order of sentence. By that time, appellant had undergone sentence for a period of 4 years 10 months and 16 days.
Today learned counsel for appellant informs the Court that appellant- Shivji Ram @ Dimple has expired on 22.04.2021.
Said statement made by counsel for the appellant is confirmed from the office report, submitted to this Court, wherein, it is mentioned that appellant- Shivji Ram @ Dimple has expired on 22.04.2021.
Learned counsel for the appellant and learned State counsel point out that as per Section 394 of the Code of Criminal Procedure, 1973, pending appeal(s) against the order of sentence with regard to fine can not be abated on account of death of the appellant(s).
Section 394 of the Code of Criminal Procedure, 1973 says 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 2 of 9 ::: Downloaded on - 30-11-2022 23:46:55 ::: IOIN-CRA-S-4686-SB-2018 in CRA-S-4686-SB-2018 -3- 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."
In view of the aforementioned circumstances, learned State counsel seeks time to assist the Court.
Adjourned to 24.11.2022."
3. Today, for the purpose of assisting the Court on the present issue, Mr. H.S. Randhawa, who is already sitting in the Court is appointed as Amicus curiae. Mr. H.S. Jalal, Advocate for the appellant and Mr.Jaswinder Singh Arora, DAG, Punjab are also there appearing for their respective parties and to assist the Court.
4. On a careful study of Section 394 Cr. P.C. (Abatement of appeals), it is clear that Section 394 Cr. P.C. envisages that on account of death of the appellant, appeal pending qua him before this Court would stand abated.
5. As per Principle of literal interpretation of Statutes, the words (except 'an appeal' from a sentence of fine ) is for a situation where 'an appeal' is from sentence of fine only. First of all, the word 'an appeal' denotes that an appeal over a question of fine only is pending and it may not deal with a situation where the appeal against the composite sentence 3 of 9 ::: Downloaded on - 30-11-2022 23:46:55 ::: IOIN-CRA-S-4686-SB-2018 in CRA-S-4686-SB-2018 -4- 'including of fine' is pending before this Court.
6. It appears that purposely said situation was visualized and such appeal was excluded, because if, the appeal pending before the Appellate Court 'only against the sentence of fine' is ordered to be abated, in other sense, same would amount to allowing of the appeal.
7. Moreover, once there is stipulation in the order of sentence itself that in case of default in payment of fine, appellant would undergo further R.I for a period of two years, substantive sentence should be considered the imprisonment of the appellant inside jail. Because with the death of the appellant, default clause becomes inoperative for all intended purposes.
8. Otherwise also, as per Section 357(2) Cr. P.C., fine is not even payable till the decision of appeal.
Section 357 says as under:
Order to pay compensation:
"(1) XX XX (2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.
(3) XX XX
(4) XX XX
(5) XX XX"
In other words, even fine is not payable till the dismissal of the appeal. Therefore, neither the order of sentence of fine nor the default clause was operative till the death of the appellant.
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9. However, view point expressed by this Court gets defeated with the observation made by the Hon'ble Apex Court in case Ramesan (Dead) through Lr. Girija A. v. State of Kerala, 2020 (3) SCC 45 (Law Finder Doc Id #1668346) wherein the situation of the composite sentence including of fine has been considered by holding that 'in such situation appeal will not abate and legal heirs of the appellants are required to be heard'.
10. Mr. H.S. Randhawa, Amicus Curiae, for the appellant, has also produced a copy of judgment passed by Full Bench of the Hon'ble Kerala High Court in case Pazhani s/o Chami v. State of Kerala, 2017 (1) R.C.R. (Criminal) 1045, Law Finder Doc Id # 828132 and points out that hundreds of appeals would be lying pending before this Court, which infact have already abated on account of death of respective appellant(s). However, inviting the legal heir(s) of the appellant(s) by issuing of notices in all such appeal(s) would be a big task in several ways.
11. Mr. J.S. Arora, learned DAG also submits that to find out the details of legal representatives of deceased appellant(s) after so many years is like an impossible task in the absence of their latest addresses.
12. Otherwise also, if contentions of Mr. H.S. Randhawa, Amicus Curiae and learned DAG, Punjab, are believed to be correct, there would be no decision in all such pending hundreds of appeals before this Court, where appellant(s) has already expired, for a very long indefinite period and the very purpose of Section 394 Cr.P.C. probably would get lost.
13. Also, view point taken by Hon'ble Kerala High Court in Pazhani's case (supra) can be taken into consideration to find out a middle path as a solution for disposal of the cases where the appellants in pending appeals have already expired.
5 of 9 ::: Downloaded on - 30-11-2022 23:46:55 ::: IOIN-CRA-S-4686-SB-2018 in CRA-S-4686-SB-2018 -6- Para 20 of the Pazhani's case (supra) says as under:-
"20. For the aforesaid reasons, we are of the view that in an appeal from a sentence of fine, the near relatives of the appellant would be entitled to come on record and continue to prosecute the appeal. No time limit is fixed for filing an application by the near relatives to come on record. Since the proviso to sub-section (2) of Section 394 provides for a period of thirty days for filing an application for leave to continue the appeal, the period for filing an application to come on record in an appeal from a sentence of fine can also be taken as thirty days. Within the period of thirty days if the near relatives do not file an application to come on record, the Court shall consign the appeal to record room. If the near relatives wish to come on record, they would be entitled to file an application to revive the appeal, in which case, the Court would be justified in hearing the appeal on the merits, provided the application is filed without undue delay. If nobody comes forward, nothing prevents the State from recovering the fine. Consigning the Appeal to the record room is only for the purpose of enabling the near relatives to approach the Court to redress their grievance. In the case of an appeal to which the proviso to sub-section (2) of Section 394 applies, which include an appeal from a sentence of
6 of 9 ::: Downloaded on - 30-11-2022 23:46:55 ::: IOIN-CRA-S-4686-SB-2018 in CRA-S-4686-SB-2018 -7- imprisonment and fine, an application for leave shall be filed within thirty days of the death of the appellant, if the near relatives want to challenge the sentence of imprisonment. If the near relatives do not wish to challenge the sentence of imprisonment, the application can be treated as an application filed in an appeal from a sentence of fine. We concur with the view taken in Raeendran v. State of Kerala (2015 (1) RCR (Criminal) 642 : 2014 (4) KLT 382) and Fathima Public School v. State of Kerala (2013 (2) KHC 717) ; 2013 (4) KLT SN 135 case No.144).
However, we do not approve the view taken in paragraph 12 of the judgment in Raeendran v. State of Kerala (2015 (1) RCR (Criminal) 642 : 2014 (4) KLT 382) that the appeal is liable to be dismissed as abated in case the near relatives do not come forward to challenge the sentence of fine. At the same time, we do not approve the view that the appellate Court is bound to dispose of the appeal on the merits, even after the death of the appellant and even if no near relative applies to the appellate Court to come on record to challenge the sentence of fine. Such a disposal on the merits without the affected party being heard is not contemplated under the Code of Criminal Procedure. Moreover, hearing of an unwanted Criminal Appeal would amount sheer waste of judicial 7 of 9 ::: Downloaded on - 30-11-2022 23:46:55 ::: IOIN-CRA-S-4686-SB-2018 in CRA-S-4686-SB-2018 -8- time."
14. Keeping in view of the observations made by the Hon'ble Apex Court as well as Hon'ble Kerala High Court in Ramesan (Dead)'s case (Supra) and Pazhani's case (supra), respectively, I deem it appropriate to dispose of the present appeal with the following observations/directions:
(a) On account of death of the appellant as also noticed in order dated 23.11.2022, present appeal i.e. CRA-S-4686-
SB-2018 stands disposed of having been abated.
(b) To avoid loss to the State exchequer and considering the amount of fine to be recovered vis-a-vis cost of recovery, it will be open for the respondent-State to proceed to recover the amount of fine by adopting due process of the law.
(c) If State/respondent starts recovery process of the amount of fine from the assets/properties of the deceased appellant(s), a valid information/notice in that regard would be served upon such legal heir(s) whose right is vested in such property or any other interested person(s) to whom right in regard to that property have already been transferred.
(d) If any such legal heir(s) or any interested person(s) feels aggrieved with the process of recovery of fine, within 30 days of receipt of such notice, he/she would be entitled to move an appropriate application before this Court for revival of his/their respective appeal(s) and to get a decision over the judgment of conviction passed in 8 of 9 ::: Downloaded on - 30-11-2022 23:46:55 ::: IOIN-CRA-S-4686-SB-2018 in CRA-S-4686-SB-2018 -9- respective appeal(s), on merits.
(e) Otherwise also, such legal heir(s) or any interested person(s) would be free to deposit the total amount of fine, which is subject matter of the appeal, in the office of concerned authority.
15. Although there is no provision in Cr.P.C. for revival of the appeal yet considering the observations made by the Full Bench of Hon'ble Kerala High Court in Pazhani s/o Chami's case (Supra) 'which says that no specific provision has been made for the revival of the appeal under the Code of Criminal Procedure, still inherent power of the Court can be exercised in such a situation.' , this Court is of the view that appeal can be revived in such cases by resorting to inherent powers of this Court.
16. However, period of 30 days for moving an application(s) for revival of the appeal(s) has been taken from the spirit of proviso of Section 394 Cr.P.C. itself, which otherwise allows any of the near relative of the deceased appellant(s) to apply to the Appellate Court for leave to continue the appeal.
17. Therefore, with the aforementioned observations and terms, present appeal stands abated and disposed of accordingly.
(SANJAY VASHISTH)
JUDGE
24.11.2022
Riya
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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