Holding

An appeal against a sentence of fine does not abate on the death of the appellant, even when the fine is part of a composite sentence, and the heirs must be heard before the fine can be enforced.

Summary

Ramesan was convicted under Sections 55(a) and 55(g) of the Kerala Abkari Act and sentenced to two years' imprisonment and a fine of Rs.1 lakh for each charge. He appealed the conviction, but died while the appeal was pending. The Kerala High Court held that the imprisonment portion of the sentence became unworkable due to his death but upheld the fine, dismissing the appeal. The legal heir of the deceased challenged the High Court's decision, contending that the appeal should abate entirely under Sections 394 of the 1973 CrPC and 431 of the 1898 Code. The Supreme Court held that an appeal against a sentence of fine does not abate on the appellant's death, whether the fine is imposed alone or with imprisonment, and that the High Court was correct in not abating the appeal but erred by not giving the legal heirs a chance to be heard. Consequently, the Supreme Court set aside the High Court judgment and revived the criminal appeal, directing that it be reheard after allowing the heirs to make submissions on the fine. The fine remains recoverable from the deceased's movable and immovable property under the CrPC and IPC provisions.

Issues considered

Whether an appeal against a composite sentence of imprisonment and fine abates on the death of the appellant under Sections 394 of the 1973 CrPC and 431 of the 1898 Code.
Whether the fine imposed can be recovered from the property of the deceased's legal heirs.
Whether the legal heirs must be given an opportunity to be heard on the fine component of the appeal.

Legislation cited

Code of Criminal Procedure, 1898s. 431, s. 439
Code of Criminal Procedure, 1973s. 394, s. 421
Indian Penal Code, 1860s. 70
Kerala Abkari Acts. 55(a), s. 55(g)

Subjects

appeal abatementdeath of appellantfine recoverycomposite sentencelegal heirsCrPCKerala Abkari Act

Judgment

94 [2020]
SUPREME COURT 1 S.C.R. 94
REPORTS [2020] 1 S.C.R.

A RAMESAN (DEAD) THROUGH LR. GIRIJA A
v.
THE STATE OF KERALA
(Criminal Appeal No. 77 of 2020 )
B JANUARY 21, 2020
[ASHOK BHUSHAN AND M. R. SHAH, JJ.]
Code of Criminal Procedure, 1973 – ss. 394, 421 – Composite
sentence of imprisonment and fine – Death of accused pending
appeal – Abatement of appeal – If any – Accused was convicted u/
C
ss.55(a), 55(g) of the Abkari Act and was imposed imprisonment
for two years and fine of Rs. One Lakh under both the sections –
High Court upheld the conviction, however held that since the
accused died pending the appeal, the sentence of imprisonment has
become unworkable – Regarding the imposition of fine it held that
D the Court below committed no mistake and thus, dismissed the appeal
– On appeal by the legal heir of the accused, held: Both under the
Old Code as well as under the present Code of Criminal Procedure,
it is provided that the appeal against a sentence of fine shall not
abate – Fine as per the provisions of the Code is recoverable from
movable and immovable properties of the accused – Further, s.70,
E
IPC inter alia provides that the death of offender does not discharge
from the liability any property which would, after his death, be legally
liable for his debts – In the present case, the appeal filed by accused
in the High Court, being against sentence of fine, was required to
be heard against the sentence of fine and was not to abate on his
F death – High Court rightly did not direct for abatement of appeal
and proceeded to consider the appeal on merits – However, it does
not appear that the legal heirs of accused were given opportunity
to proceed with the appeal against the sentence of fine – High Court
ought to have given them an opportunity to make their submissions
against the sentence of fine, which fine could have been very well
G
recovered from the assets of the accused in their hands – Judgment
of the High Court set aside – Criminal appeal revived before the
High Court – To be heard afresh after giving opportunity to the
legal heirs of the accused to make submissions against the sentence

H
94
RAMESAN (D) THR. LR. GIRIJA A v. THE STATE OF KERALA 95

of fine – Code of Criminal Procedure, 1898 – ss.431, 439 – Kerala A
Abkari Act – s.55 (a), (g) – Penal Code, 1860 – s.70.
Partly allowing the appeals, the Court
HELD: 1.1 Section 394 Cr.P.C. deals with abatement of
appeals. Both under the Old Code as well as under the present
Code of Criminal Procedure, it is provided that the appeal against B
a sentence of fine shall not abate. The fine as per the provisions
of Code of Criminal Procedure is recoverable from movable and
immovable properties of the accused. Section 70 of Indian Penal
Code provides that any part of fine which remains unpaid may be
levied at any time within six years after the passing of the sentence. C
The provision further provides that the death of offender does
not discharge from the liability any property which would, after
his death, be legally liable for his debts. [Paras 7, 9-11] [98-F;
99-D; 100-D-E]
1.2 The judgment in Harnam Singh v. The State of Himachal D
Pradesh categorically laid down that even if sentence of fine is
imposed alongwith 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 Cr.P.C. The appeal filed by
accused in the High Court was not to abate on death of the E
accused. The High Court rightly did not direct for abatement of
appeal and proceeded to consider the appeal on merits. The
principle regarding non-abatement of the appeal from a sentence
of fine as contained in Section 431 of Cr.P.C., 1898 as well as
Section 394 of present Cr.P.C. is the same. A similar legislative F
scheme has been contained, which was occurring in Section 431
Cr.P.C., 1898. The appeal before the High Court being against
sentence of fine was required to be heard against the sentence of
fine despite death of accused-appellant. From the judgment of
the High Court, it does not appear that after the death of the
appellant-accused, his legal heirs were given opportunity to G
proceed with the appeal against the sentence of fine. The
judgment of the High Court does not also mention that any counsel
has appeared for the legal heirs. The High Court ought to have

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96 SUPREME COURT REPORTS [2020] 1 S.C.R.

A given an opportunity to legal heirs of the accused to make their
submissions against the sentence of fine, which fine could have
been very well recovered from the assets of the accused in the
hands of the legal heirs. Ends of justice would be served in
reviving the Criminal Appeal No. 254 of 2007 before the High
Court to give an opportunity to the legal heirs of the accused to
B
make their submissions against the sentence of fine. The
judgment of the High Court is set aside and Criminal Appeal
No.254 of 2007 is revived before the High Court to be heard
afresh after giving an opportunity to the legal heirs of the accused.
[Paras 16, 18-22] [103-B-C, H; 104-A-G]
C Pranab Kumar Mitra v. State of West Bengal and
Another AIR 1959 SC 144 : [1959] Suppl. SCR 63
– followed.
Bondada Gajapathi Rao v. State of Andhra Pradesh
AIR 1964 SC 1645 : [1964] SCR 251 ; Harnam Singh
D v. The State of Himachal Pradesh (1975) 3 SCC 343 :
[1975] 2 SCR 823 ; Lakshmi Shanker Srivastava v. State
(Delhi Administration) (1979) 1 SCC 229 : [1979] 2
SCR 348 – relied on.
Case Law Reference
E
[1959] Suppl. SCR 63 followed Para 12
[1964] SCR 251 relied on Para 13
[1975] 2 SCR 823 relied on Para 14
[1979] 2 SCR 348 relied on Para 17
F
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 77 of 2020.
From the Judgment and Order dated 06.03.2014 of the High
Court of Kerala at Ernakulam in Criminal Appeal No. 254 of 2007.
G Anjani Kumar Mishra, Ms. Hardeep Kaur Mishra, Sudhir
Aggarwal, Shiv Ram Pandey, Advs. for the Appellant.
Vipin Nair, P.B. Suresh, Kartik Jayashankar, Sughosh S
Neergundh, Advs. for the Respondent.

H
RAMESAN (D) THR. LR. GIRIJA A v. THE STATE OF KERALA 97

The Judgment of the Court was delivered by A
ASHOK BHUSHAN, J.
1. This appeal has been filed against the judgment of the High
Court of Kerala dated 06.03.2014 by which Criminal Appeal of the
appellant has been dismissed.
B
2. Brief facts of the case giving rise to this appeal are:-
2.1 A First Information Report was registered
against Ramesan under Sections 55 (a) and (g)
of the Kerala Abkari Act [1 of 1077 (ME)].
Charge under Sections 55(a) and (g) of the C
Kerala Abkari Act was framed. Prosecution
led oral and documentary evidence to prove the
charge. Statement of Ramesan was also
recorded under Section 313 of Cr.P.C., who
completely denied the incident and charge.
D
2.2 Additional Session Judge vide its order dated
20.12.2006 convicted the first accused Ramesan
under Section 55(a) and imposed imprisonment
for a period of two years and a fine of Rs. One
Lakh. The accused was also convicted and
sentenced under Section 55(g) of the same E
punishment of imprisonment of two years and
fine of Rs. One Lakh. In default of payment of
fine amount, accused was to undergo simple
imprisonment for six months each under
Sections 55(a) and (g) of the Abkari Act. F
2.3 An appeal was filed by the first accused
Ramesan in the High Court being Criminal
Appeal No. 254 of 2007 on 06.02.2007. After
filing of the appeal, the appellant Ramesan died
on 21.12.2007. The High Court noticed the
G
factum of death of the appellant on 21.12.2007,
however, proceeded to decide the appeal on
merits referring to the principle under Section
394 Cr.P.C. The High Court after considering
the evidence on record upheld the conviction.
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98 SUPREME COURT REPORTS [2020] 1 S.C.R.

A The High Court took the view that since the
appellant died pending the appeal, the sentence
of imprisonment has become unworkable,
however, regarding the imposition of fine, there
is no reason to hold that Court below committed
any mistake and the appeal was consequently
B
dismissed. This appeal has been filed by Girija
A., the legal heir of Ramesan (deceased).
3. Learned counsel for the appellant contended that in view of the
death of the accused on 21.12.2007, the High Court ought to have abated
the entire appeal. It is submitted that Section 394 of Cr.P.C. saves the
C appeal, which arises against sentence of fine only. When there was
composite sentence of imprisonment as well as fine, the appeal has to
abate both against the sentence of imprisonment as well as fine. It is
contended that High Court committed error in proceeding to decide the
appeal on merits. High Court ought to have abated the appeal in toto.
D 4. Learned counsel for the State refuting the submission contends
that there being sentence of fine also, the appeal has rightly been decided
on merits by the High Court. The sentence of fine or composite sentence
of imprisonment and fine, is also a sentence of fine.
5. We have considered the submissions of the learned counsel for
E the parties and have perused the records.
6. The only question to be decided in this appeal is as to whether
in the facts of the present case, the accused who was sentenced for
imprisonment as well as for fine, the High Court committed an error in
not abating the appeal in toto.
F
7. Section 394 Cr.P.C. deals with abatement of appeals. Section
394 is as follows:-
“394. Abatement of appeals.
(1) Every appeal under section 377 or section 378 shall finally
G 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:

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RAMESAN (D) THR. LR. GIRIJA A v. THE STATE OF KERALA 99
[ASHOK BHUSHAN, J.]

Provided that where the appeal is against a conviction and A
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.
B
Explanation.- In this section,” near relative” means a parent,
spouse, lineal descendant, brother or sister.”
8. Even in Cr.P.C., 1898, there was a provision pertaining to
abatement of the appeal, which was to the following effect:-
“431. Every appeal under Section 411-A, sub-section (2), or C
Section 417 shall finally abate on the death of the accused, and
every other appeal under this Chapter (except an appeal from a
sentence of fine) shall finally abate on the death of the appellant.”
9. Both under the Old Code as well as under the present Code of
Criminal Procedure, it is provided that the appeal against a sentence of D
fine shall not abate.
10. The fine as per the provisions of Code of Criminal Procedure
is recoverable from movable and immovable properties of the accused,
Section 421 Cr.P.C. provided as follows:-
E
“421. Warrant for levy of fine. —(1) When an offender has
been sentenced to pay a fine, the Court passing the sentence may
take action for the recovery of the fine in either or both of the
following ways, that is to say, it may-
(a) issue a warrant for the levy of the amount by attachment
F
and sale of any movable property belonging to the
offender;
(b) issue a warrant to the Collector of the district, authorising
him to realise the amount as arrears of land revenue from
the movable or immovable property, or both, of the
defaulter: G

Provided that, if the sentence directs that in default of payment
of the fine, the offender shall be imprisoned, and if such offender
has undergone the whole of such imprisonment in default, no Court
shall issue such warrant unless, for special reasons to be recorded
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100 SUPREME COURT REPORTS [2020] 1 S.C.R.

A in writing, it considers it necessary so to do, or unless it has made
an order for the payment of expenses or compensation out of the
fine under section 357.
(2) The State Government may make rules regulating the
manner in which warrants under clause (a) of sub- section (1)
B are to be executed, and for the summary determination of any
claims made by any person other than the offender in respect of
any property attached in execution of such warrant.
(3) Where the Court issues a warrant to the Collector under
clause (b) of sub- section (1), the Collector shall realise the amount
C in accordance with the law relating to recovery of arrears of land
revenue, as if such warrant were a certificate issued under such
law:
Provided that no such warrant shall be executed by the arrest
or detention in prison of the offender.”
D 11. Section 70 of Indian Penal Code provides that any part of fine
which remains unpaid may be levied at any time within six years after
the passing of the sentence. The provision further provides that the
death of offender does not discharge from the liability any property which
would, after his death, be legally liable for his debts. Section 70 of the
E Indian Penal Code is as follows:-
“70. Fine leviable within six years, or during imprisonment—
Death not to discharge property from liability.—The fine, or
any part thereof which remains unpaid, may be levied at any time
within six years after the passing of the sentence, and if, under
F the sentence, the offender be liable to imprisonment for a longer
period than six years, then at any time previous to the expira-tion
of that period; and the death of the offender does not discharge
from the liability any property which would, after his death, be
legally liable for his debts.”
12. This Court had occasion to consider the provisions of Sections
G
431 and 439 of Cr.P.C. 1898 in Pranab Kumar Mitra Vs. State of
West Bengal and Another, AIR 1959 SC 144. Section 439 provides
for revisional jurisdiction of the High Court. One of the issues was as to
whether Section 431 applies to revisional application filed in the High
Court. In paragraph 7, this Court laid down following:-
H
RAMESAN (D) THR. LR. GIRIJA A v. THE STATE OF KERALA 101
[ASHOK BHUSHAN, J.]

“7. ………………………In view of the fact that even in the A
absence of any statutory provisions, we have held, in agreement
with the decision aforesaid of the Bombay High Court, that the
High Court has the power to determine the case even after the
death of the convicted person, if there was a sentence of fine also
imposed on him, because that sentence affects the property of
B
the deceased in the hands of his legal
representative,………………………”
13. This Court in Bondada Gajapathi Rao Vs. State of Andhra
Pradesh, AIR 1964 SC 1645 had occasion to consider Section 431
Cr.P.C. A special leave petition was filed in this Court, the accused died
during pendency of special leave petition. This Court again reiterated C
the principle on which hearing of a proceeding may be continued after
the death of an accused. ;In paragraph 3 of the judgment, following was
laid down:-
“3. The principle on which the hearing of a proceeding may be
continued after the death of an accused would appear to be the D
effect of the sentence on his property in the hands of his legal
representatives. If the sentence affects that property, the legal
representatives can be said to be interested in the proceeding and
allowed to continue it.”
14. This Court had occasion to consider the case of a composite E
sentence of imprisonment as well as fine in Harnam Singh Vs. The
State of Himachal Pradesh, (1975) 3 SCC 343. In the above case,
the accused was convicted under Sections 5(1)(d) and 5(2) of Prevention
of Corruption Act, 1947 as well as under Section 161 Indian Penal Code
and he was sentenced for rigorous imprisonment of two years and to a F
fine of Rs.300. Contention was raised before this Court that since the
deceased was not sentenced to pay a fine only but was punished with a
composite sentence of imprisonment and fine, the appeal would abate
as regards the sentence of fine also. Such contention was noted in
paragraph 4 of the judgment, which is to the following effect:-
G
“4. Learned Counsel for the State of Himachal Pradesh, who are
respondents to the appeal, has raised a preliminary objection to
the right of the appellant’s widow to prosecute the appeal. He
contends that the substantive sentence of imprisonment imposed
on the appellant Harnam Singh came to an end with his death and
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102 SUPREME COURT REPORTS [2020] 1 S.C.R.

A therefore the appeal in regard to that sentence stands abated. As
regards the sentence of fine, it is contended that since the deceased
appellant was not sentenced to pay a fine only but was punished
with a composite sentence of imprisonment and fine, the appeal
would abate as regards the sentence of fine also. According to
the learned Counsel this Court may, at the highest, set aside the
B
sentence of fine if it finds that the appellant need not have been
asked to pay a fine. But the order of conviction and the substantive
sentence must remain and the legality or propriety of that order
cannot any longer be questioned in view of the death of the
appellant.”
C 15. Rejecting the above submission, this Court laid down that if by
the judgment under appeal a sentence of fine is imposed either singularly
or in conjunction with a sentence of imprisonment, the appeal against
conviction would be an appeal from a sentence of fine within the meaning
of Section 431. In paragraph 10, following was laid down:-
D “10. The narrow question which then requires to be considered
is whether an appeal from a composite order of sentence
combining the substantive imprisonment with fine is for the purposes
of Section 431 not an appeal from a sentence of fine. It is true
that an appeal from a composite order of sentence is ordinarily
E directed against both the substantive imprisonment and the fine.
But, such an appeal does not for that reason cease to be an appeal
from a sentence of fine. It is something more not less than an
appeal from a sentence of fine only and it is significant that the
parenthetical clause of Section 431 does not contain the word
“only”. To limit the operation of the exception contained in that
F clause so as to take away from its purview appeals directed both
against imprisonment and fine is to read into the clause the word
“only” which is not there and which, by no technique of
interpretation may be read there. The plain meaning of Section
431 is that every criminal appeal abates on the death of the accused
G “except an appeal from a sentence of fine”. The section for its
application requires that the appeal must be directed to the sentence
of fine and not that it must be directed to that sentence only. If by
the judgment under appeal a sentence of fine is imposed either
singularly or in conjunction with a sentence of imprisonment, the
appeal against conviction would be an appeal from a sentence of
H
RAMESAN (D) THR. LR. GIRIJA A v. THE STATE OF KERALA 103
[ASHOK BHUSHAN, J.]

fine within the meaning of Section 431. All that is necessary is A
that a sentence of fine should have been imposed on the accused
and the appeal filed by him should involve the consideration of the
validity of that sentence.”
16. The above judgment categorically laid down that even if
sentence of fine is imposed alongwith the sentence of imprisonment B
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 Cr.P.C. Thus, the appeal in the
present case where 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 High Court did not commit any error in deciding the appeal on C
merits.
17. This Court had occasion to consider Section 394 Cr.P.C. in
Lakshmi Shanker Srivastava Vs. State (Delhi Administration),
(1979) 1 SCC 229. In the above case, the accused was sentenced to
suffer rigorous imprisonment for 18 months on each count and a fine of D
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
paragraph 4, which is to the following effect:-
“4. Mr H.R. Khanna, learned Counsel who appeared for the E
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 F
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 G
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 of
Cr.P.C., 1898 as well as Section 394 of present Cr.P.C. is the same. A
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104 SUPREME COURT REPORTS [2020] 1 S.C.R.

A similar legislative scheme has been contained, which was occurring in
Section 431 Cr.P.C., 1898, hence, judgment of this Court regarding
interpretation of Section 431, Cr.P.C. as has been done by this Court in
Bondada Gajapathi Rao (supra) and Harnam Singh (supra) shall
squarely apply to the interpretation of Section 394 Cr.P.C.
B 19. We, thus, conclude that the appeal filed by accused Ramesan
in the High Court was not to abate on death of the accused. The High
Court rightly did not direct for abatement of appeal and proceeded to
consider the appeal on merits. The appeal before the High Court being
against sentence of fine was required to be heard against the sentence
of fine despite death of accused-appellant.
C
20. Although, we have upheld the view of the High Court that
appeal filed by the accused was not to abate and was required to be
heard and decided on merits but there is one aspect of hearing of the
appeal before the High Court, which need to be noted. From the judgment
of the High Court, it does not appear that after the death of the appellant-
D accused, his legal heirs were given opportunity to proceed with the appeal
against the sentence of fine. The judgment of the High Court does not
also mention that any counsel has appeared for the legal heirs. The
High Court ought to have given an opportunity to legal heirs of the accused
to make their submissions against the sentence of fine, which fine could
E have been very well recovered from the assets of the accused in the
hands of the legal heirs.
21. In above view of the matter, we are of the view that ends of
justice be served in reviving the Criminal Appeal No. 254 of 2007 before
the High Court to give an opportunity to the legal heirs of the accused to
F make their submissions against the sentence of fine.
22. In result, the appeal is partly allowed. The judgment of the
High Court dated 06.03.2014 is set aside and Criminal Appeal No.254 of
2007 is revived before the High Court to be heard afresh after giving an
opportunity to the legal heirs of the accused.
G

Divya Pandey Appeals partly allowed.

H