SHRI SHANKAR PRASAD GHOSH (DEAD)versusTHE STATE OF BIHAR & ANR.

                              [2008] 9 S.C.R. 1163


                SHRI SHANKAR PRASAD GHOSH (DEAD)                          A
                                       v
                       THE STATE OF BIHAR & ANR.
                      (Criminal Appeal No.473 of 1998)
                               JUNE 13, 2008
                                                                          B
1           [DR. ARIJIT PASAYAT AND P.P. NAOLEKAR, JJ.]
    r
              Code of Criminal Procedure, 1973:

              s. 394, proviso - Appeal - Abatement of, on death of ap-
        pellant - Leave to continue the appeal by relative - Delay in     c
        - Effect of - On facts, Conviction of appellant under Penal
        Code and Prevention of Corruption Act challenged before
        Supreme Court - Death of appellant during pendency of ap-
        peal - Application for substitution filed after five years - No
        sufficient cause shown for delayed presentation - Held: Ap-       D
        peal shall abate.
              s. 394 - Applicability of, to appeal before Supreme Court
        -   Held: Applicable.
             The appellant-accused was held guilty of offence E
        punishable under the Penal Code, 1860 and Prevention
        of Corruption Act. Various custodial sentences and fine
        were imposed. The High Court upheld the conviction but
        altered the sentences to the period already undergone.
        The fine amount was, however, maintained alongwith F
        default stipulation.
              Appellant filed leave to appeal which was granted
        on 20.4.1998 but no stay was granted. During the pen-
        dency of the appeal, appellant died on 15.5.2000. After
        about 5 years applications were filed purportedly in terms (3
        of s.394 (2) Cr.P.C. to bring on record the legal heirs of the
        deceased appellant for the purpose of continuance of the
        appeal.

                                     1163                                 H
    1164      SUPREME COURT REPORTS              [2008] 9 S.C.R.


A       Respondent-State submitted that s.394 has no ap-
  plication to the appeal before the Supreme Court; that in
  any event, time statutorily prescribed is 30 days; that in
  the instant case, applications were filed nearly 5 years
  after the date of the death of the appellant and that no
B explanation was offered as to why the applications were
  filed after such a long time and that there was no scope             ~
                                                                   1
  for condoning any delay beyond the fixed period of 30
  days.
           Disposing of the appeal, the Court
c
        HELD : 1. S.394 of the Cr.P.C. reads that every appeal
  shall finally abate on the death of the appellant. The pro-
  viso to that section says 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
D
  of his relatives, which expression is defined by the expla-
  nation appended to this proviso may within 30 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. [Para 5] [1167-G, 1168-A,B]
E
        S. V. Kameswar Rao and Anr. v. State A.C.B. Police,
  Karnoo/ District, Andhra Pradesh (1991) Supp 1 SCC 377 -
  relied on
       State of AP v. S. Narasimha Kumar and Ors. (2006) 5
F SCC 683; Harnam Singh v The State of Himacha/ Pradesh
  (1975) 3 sec 343 -referred to.
        2. The principles embodied in s. 394 of the Cr.P.C.
  can be pressed into service in appeals before this Court.
  It is true that the period of 30 days has been statutorily
G
  fixed for making an application by the legal heirs. In the
  instant case, the applications were filed after about 5
  years. No explanation has been offered for delayed pre-
  sentation. The appeal has abated on the death of the ap-
  pellant. [Para 7] [1169-G,H, 1170-A,B]
H
              SHRI SHANKAR PRASAD GHOSH (DEAD) v. THE 1165
              STATE OF BIHAR & ANR. [DR. ARIJIT PASAYAT, J.]

              CRIMINALAPPELLATE JURISDICTION: Criminal Appeal                 A
         No. 473 of 1998
              From the Judgment and final Order dated 26.11.1997 of
         the High Court of Judicature at Patna in Crl. Appeal No. 25 of
         1984
                                                                              B
              Ranjan Mukherjee for the Appellant.
)'

              Gopal Singh and Manish Kumar for the Respondents.

              The Judgment of the Court was delivered by

              Dr. ARIJIT PASAYAT, J. 1. One Shankar Prasad Ghosh              c
         had filed the present appeal before this Court questioning cor-
         rectness of the judgment rendered by a learned Single Judge
         of the Patna High Court. By a common judgment the iearned
         Special Judge (CBI), South Bihar, Patna had found each of the
~        accused persons guilty of offence punishable under Sections          D
         409, 477 A read with Section 34, 467 and 4 71 of the Indian Penal
         Code, 1860 (in short the 'IPC'). It also found the accused guilty
         of offence punishable under Section 5(2) read with Section
         4(1 )(c) and Section 5(1 )(d) of the Prevention of Corruption Act,
         1947 (in short the 'Act'). Various custodial sentences and fine      E
         were imposed. The judgment of the Special Judge was assailed
         in appeal before the High Court which dismissed the appeal.
         The High Court upheld the conviction but altered the sentences
         to the period already undergone. The fine amount was, how-
         ever, maintained alongwith default stipulation.                      F
               2. In this case leave was granted on 20.4.1998 but no stay
         was granted. During the pendency of the appeal, appellant-
         Shankar Prasad Ghosh died on 15.5.2000. After about 5 years
         applications have been filed purportedly in terms of Section 394
         (2) of the Code of Criminal Procedure, 1973 (in short the 'Code') G
         to bring on record the legal heirs of the deceased appellant for
         the purpose of continuance of the appeal. On 15.3.2007 it was
     '   directed that the applications shall be considered when the
         appeal will be taken up for hearing.
                                                                           H
    1166       SUPREME COURT REPORTS                    [2008) 9 S.C.R.


A        3. Learned counsel for the respondent-State submitted that
  there is no scope for accepting the applications. Section 394
  has no application to the appeal before the Supreme Court. In
  any event, time statutorily prescribed is 30 days. In the instant
  case, applications have been filed nearly 5 years after the date
B of the death of the appellant-Shankar Prasad Ghosh. Even no
  explanation has been offered as to why the applications were
  filed after such a long time. Accordingly, he submitted that there
  is no scope for condoning any delay beyond the fixed period of
  30 days.
C        4. In State of A.P v. S. Narasimha Kumar and Ors. (2006
    (5) sec 683), it was noted as follows:
           "6. In Bondada Gajapathi Rao v. State of Andhra Pradesh
           (AIR 1964 SC 1645) three-judge Bench of this Court was
           dealing with the situation as to whether appeal by special
D
           leave against sentence of imprisonment abates on the
           death of the accused/appellant. Three separate judgments
           were rendered by the Hon'ble Judges. The principles as
           can be culled out from the said decision are as follows:
           (though rendered in the context of the Old Code are equally
E          applicable under the Cr.P.C.).
           (1) Section 431 of the Old Code does not apply proprio
           vigore to a case of appeal filed with the special leave of
           the Supreme Court granted under Article 136 of the
F          Constitution of India, 1950 (in short the 'Constitution') when
           the appellant-accused dies pending the appeal.
           (2) But where the appeal is against sentence of fine, the
           appeal may be permitted to be continued by the legal
           representatives of the deceased appellant accused. There
G          is no provision making such appeals abate. If they can be
           continued when arising under the Old Code, there is no
           reason why they should not be continued when arising
           under the Constitution. If revision petitions rr.ay be allowed
           to be continued after the death of the accused so should
H          appeals, for between them no distinction in principle is
                SHRI SHANKAR PRASAD GHOSH (DEAD) v. THE 1167
                STATE OF BIHAR & ANR. [DR. ARIJIT PASAYAT. J.]

               possible for the purpose of continuance.                       A
               (3) The principle on which the hearing of a proceeding
               may be continued after the death of an accused would
               appear to be the 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   B

       )
               to be interested in the proceeding and allowed to continue
               it.
               (4) But where the sentence is not one of fine but of
               imprisonment, which on the death of the accused becomes        c
               infructuous, the sentence does not affect the property of
               the deceased-accused in the hands of his legal
               representatives, and therefore, the appeal, in such a case,
               would abate, upon the death of the accused.
               (5) In fact that the accused was a government servant and D
               was under suspension during the trial and the fact that if
               the conviction and sentence were set aside, his estate
               would be entitled to receive full pay for the period of
mii\           suspension, cannot be said to affect his estate, because,
               the setting aside of the sentence would not automatically E
               entitle the legal representatives to the salary. It would be
               extending the principle applied to the case of a sentence
               of fine, if on the basis of it appeal against imprisonment
               is allowed to be continued by the legal representatives
               after the death of the appellant and for such an extension F
               there is no warrant. Reference was made to Pranab
               Kumar Mitra vs. State of West Bengal and Anr. (Al R 1959
               SC 144).
                 5. In S. V Kameswar Rao and Anr. v State (A.C.B. Po-
           lice, Karnoo/ District, Andhra Pradesh) (1991 Supp (1) SCC         G
           377), it was inter-alia observed as follows:
               "5. Section 394 of the Code of Criminal Procedure reads
               that every appeal shall finally abate on the death of the
               appellant. The proviso to that section says that where the
                                                                              H
    1168       SUPREME COURT REPORTS                    [2008] 9 S.C.R


A          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 relatives. which expression is
           defined by the explanation appended to this proviso may
           within 30 days of the death of the appellant, apply to the
B          appeilate court for leave to continue the appeal; and if
           leave is granted, the appeal shall not abate. In the present
           case, none of the relatives of the deceased within the
           term of the explanation to the proviso has approached
           this Court within 30 days for leave to continue the appeal.
c          This present application is filed nearly after a period of 10
           years. No explc.nation is given in this application for not
           approaching the court within that prescribed period and
           no sufficient cause is shown for condonation of such undue
           and inordinate delay of 10 years. A decision of this Court
           in PS.R. Sadhanantham v. Arunachalam is relied on in
D
           the petition wherein it has been held thus: (SCC p. 145,
           para 7)

                "Article 136 is a special jurisdiction. It is residuary
                power; it is extraordinary in its amplitude, its limit,
E               when it chases injustice, is the sky itself."

          6. In Harnam Singh v. The State of Himachal Pradesh
    (1975 (3)   sec 343 at paras 7, 14 and 15) it was observed as
    follows:

F          "7. The appeal before us was filed by special leave granted
           under Article 136 of the Constitution and is neither under
           Section 411-A(2) nor under Section 417 nor under any
           other provision of Chapter XXXI of the Code. Plainly
           therefore, Section 431 has no application and the question
           whether the appeal abated on the death of the appellant
G
           is not governed strictly by the terms of that section. But, in
           the interests of uniformity, there is no valid rerson for
           applying to appeals under Article 136 a set of rules different
           from those which govern appeals under the Code in the
           matter of abatement. It is therefore necessary to find the
H
              SHRI SHANKAR PRASAD GHOSH (DEAD) v. THE 1169
              STATE OF BIHAR & ANR [DR ARIJIT PASAYAT, J.]
     •        true meaning and scope of the provision contained in              A
              Section 431.
              Xx                       )()(


              14. If this be the true interpretation of Section 431, there
              is no reason why the same principle ought not to be 8
              extended to criminai appeals filed in this Court under Article
              136 of the Constitution. Accordingly the widow of the
              deceased appellant who has been brought on the record
              of the appeal as his legal representative is entitled to
              continue the appeal as the sentence of fine directly affects      c
              the property which would devolve on her on the death of
              her husband.
              15. In Bondada Gajapathy Rao v. State ofA.P the appellant
              was convicted by the High Court under Section 302 of the
              Penal Code and was sentenced to imprisonment for life . D
     •
              He filed an appeal in this Court by special leave but died
.~
              during the pendency of the appeal. His sons and daughter
              applied for substitution as his legal representatives
              contending that the conviction of their father had resulted
~             in his removal from Government service and if the E
              conviction were set aside the estate will be able to claim
              the arrears of salary from the date of conviction till the
              date of his death. This Court declined to permit the legal
              representatives to continue the appeal on the ground that
              the claim on the strength of which they sought permission F
              to continue the appeal was too remote. This decision is
              distinguishable as the appeal was not from a sentence of
              fine and as the interest of the legal representatives was
              held to be contingent and not direct. Even if the conviction
              were set aside, the legal representatives would not have
                                                                            G
              automatically got the arrears of salary due to their father."
               7. In view of what has been stated by this Court in the afore-
         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 &f 3P days has been statutorily fixed for         H
    1170     SUPREME COURT REPORTS                  [2008) 9 S.C.R.

                                                                       •
A making an application by the legal heirs. In the instant case, the
  applications were filed after about 5 years. We need not go
  into the question as to whether there is scope for condonation
  of delay as no explanation has been offered for the delayed
  presentation. In that view of the matter, the observations of this
s Court in Kameswar Rao's case (supra) are clearly applicable.
  The appeal has abated on the death of the appellant-Shankar
  Prasad Ghosh and is disposed of accordingly.
    D.G.                                      Appeal Disposed of




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