Punjab-Haryana High Court
Subhash Chander vs State Of Punjab on 3 September, 2013
Author: Daya Chaudhary
Bench: Daya Chaudhary
Crl. Appeal No. 55-SB of 2000 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No. 55-SB of 2000
DATE OF DECISION: 03.09.2013
Subhash Chander ..........Petitioner
Versus
State of Punjab ..........Respondent
BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. APS Mann, Advocate
for the appellant.
Mr. Premjit Singh Hundal, AAG, Punjab.
****
DAYA CHAUDHARY, J.
The present appeal has been filed by appellant-Subhash Chander against judgment of conviction and order of sentence dated 12.1.2000 passed by learned Judge, Special Court, Kapurthala, whereby, the appellant was convicted and sentenced under Section 21 of NDPS Act to undergo RI for ten years and pay a fine of ` 1 lac and in default of payment of fine to further under RI for one year.
The appeal was admitted vide order dated 20.1.2000 and since the sentence imposed upon the appellant was not suspended, an order for listing of main appeal was passed. Recovery of fine was also not stayed. The appellant has expired during pendency of the appeal and appeal was ordered to be abated vide order dated 16.3.2005. Thereafter, an application was moved by the LR of deceased for recalling of the order Pooja Sharma 2013.09.10 11:31 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No. 55-SB of 2000 (2) of abatement and following order was passed by this Court on 21.12.2005:-
"Subhash Chander son of Kishori Lal was booked in a case bearing FIR No. 35 datd 13.12.1994 registered at Police Station Dhilwan, District Kapurthala, under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He was convicted for the said offence by the learned Judge, Special Court, Kapurthala on 12.1.2000 and was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of ` 1 lac. Aggrieved by the said judgment of conviction and sentence, he preferred the instant appeal in this Court. The same was admitted and the sentence of fine was suspended.
When the aforesaid appeal was taken up for final disposal, this Court was informed that the appellant had died his natural death in the jail itself. The death certificate was also placed on the record. In view of the aforesaid facts, the present appeal was disposed of as having abated vide order dated 16.3.2005.
The son of the deceased has not moved this Court for recalling the aforesaid order dated 16.3.2005 vide which the appeal stands abated. In fact, these are the separate applications viz. Crl. Misc. No. 44115 of 2005 under Section 394 of the Code of Criminal Procedure for grant of leave the present applicant to continue with the appeal after the death of his father; Crl. Misc. No. 44116 of 2005 under Section 482 of the Code of Criminal Procedure for recalling the order dated 16.3.2005, and Crl. Misc. No. 44117 of 2005 for condonation of delay of 1389 days in filing the present application. Vide this order all the aforesaid three applications are being disposed Pooja Sharma 2013.09.10 11:31 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No. 55-SB of 2000 (3) of.
Pursuant to the notice, the State has filed reply to all the aforesaid applications.
I have heard Mr. Mann, learned counsel appearing for the applicant and learned AAG, Punjab.
Mr. Mann while drawing my attention to the provisions of Section 394 of the Code of Criminal Procedure submits that the present appeal, in fact, cannot abate as appellant Subhash Chander (since deceased) after suffering conviction under NDPS Act was awarded sentence of fine also and once the trial Court imposes the sentence of fine along with the substantive sentence, an appeal filed against the said judgment cannot abate even on the death of the appellant. In support of his contention, he relies upon a judgment of Hon'ble Apex Court rendered in Harnam Singh Vs. State of Himachal Pradesh, AIR 1975 SC 236. According to Mr. Mann, the concerned authorities have started the process of recovering the amount of fine.
Learned State counsel is not in a position to controvert the legal position, but submits that the application for grant of leave to continue with the appeal should not be allowed as there is a huge delay in filing the application for the said relief.
Since the case of the applicant is on firm legal footings in the light of the provisions of Section 394 of Code of Criminal Procedure and ratio laid down in Harnam Singh's case (supra), in my considered view, the delay in filing the present application becomes insignificant and it should not stand in the way.Pooja Sharma
2013.09.10 11:31 I attest to the accuracy and integrity of this document High Court, Chandigarh
Crl. Appeal No. 55-SB of 2000 (4) I have seen the instant case yet from another angle.
Since the appeal was not finally disposed of on merits and it stood abated on account of death of the appellant without even touching the merits, re-hearing of the present appeal, in my considered view, would not amount to review of the order as barred under Section 362 of the Code of Criminal Procedure.
In view of the above, I condone the delay of 1389 days in filing the application for leave to appeal. Crl. Misc. No. 44117 of 2005 is accordingly disposed of.
Since the present appeal is to be heard on merits, the other two miscellaneous applications viz. No. 44115 and 44116 of 2005 are also allowed. Resultantly, the earlier order dated 16.3.2005 is hereby recalled and leave to continue with the instant appeal is granted to the applicant. Appeal be restored to its original number for final disposal on merits.
Let the instant appeal along with relevant records be put up before the appropriate Bench as per the roster for its final disposal after obtaining necessary orders from Hon'ble the Chief Justice.
Since it is an old appeal of year 2000, office is directed to place the file before Hon'ble the Chief Justice without any further delay."
Since the appellant had expired during pendency of the appeal and sentence of rigorous imprisonment for offence under Section 21 of NDPS Act stands abated. Now the question for consideration by this Court is as to whether in a case where fine is imposed by the trial Court apart from sentence of rigorous imprisonment, whether on death of the appellant, Pooja Sharma 2013.09.10 11:31 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No. 55-SB of 2000 (5) appeal qua fine shall be abated or not?
Learned counsel for the appellant has placed reliance upon the judgment dated 15.3.2012 passed by this Court in Kishan Singh Vs. State of Punjab in Crl. Appeal No. S-943-SB of 2005, wherein, under similar circumstances, where the appellant had died, the appeal was abated in entirety including fine.
Section 394 of Cr.P.C. deals with provisions of abatement of the appeal, which is reproduced as under:-
"394. Abatement of appeals.- (1) Every appeal under 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 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."
A perusal of aforesaid 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 Criminal Procedure Code, 1973 would abate on the death of the appellant. However, proviso to sub clause (2) to Section 394 Cr.P.C. stipulates that in a case where an appeal is filed against conviction Pooja Sharma 2013.09.10 11:31 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No. 55-SB of 2000 (6) and sentence of death or imprisonment and the appellant dies during the pendency of the appeal then his LRs can move an application within a period of 30 days from the date of the death of the appellant for continuation of the appeal and in case such application is made and the leave is granted by the Court then the legal representatives would be permitted to continue with 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 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 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 -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 learned counsel appeared for the original appellant. The plea Pooja Sharma 2013.09.10 11:31 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No. 55-SB of 2000 (7) 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, application has been moved by counsel for the appellant and an affidavit of son of the deceased has been filed. Said application has been allowed on the ground that the appeal filed by the appellant has not been dismissed on merits and the same stood abated on account of death of appellant without touching merits of the case. The delay of 1389 days in filing of the application was also condoned by this Court on 21.12.2005 and order of abatment was recalled.
The sentence of imprisonment for 10 years and for one year in default on payment of fine (i.e. substantive sentence and default sentence) stands abated on the death of the appellant but the fine of ` one lac is still there. Identical view has been expressed by a Division Bench of Bombay High Court in Gopala Balu Kamble Vs. State of Maharashtra, 2012 (2) Bom CR 789: Mh JL 346, wherein, in identical circumstances fine imposed by the trial Court has been abated.
In view of the facts as well as law position explained above, there is no justification for insisting upon the payment of fine and to recover amount of fine, therefore, the appeal stands abated in its entirety which includes fine also.
Ordered accordingly.
September 03, 2013 (DAYA CHAUDHARY)
pooja JUDGE
Pooja Sharma
2013.09.10 11:31
I attest to the accuracy and
integrity of this document
High Court, Chandigarh
Crl. Appeal No. 55-SB of 2000 (8)
Pooja Sharma
2013.09.10 11:31
I attest to the accuracy and
integrity of this document
High Court, Chandigarh