STATE OF ANDHRA PRADESHversusS. NARASIMHA KUMAR AND ORS.

A                         STA TE OF ANDHRA PRADESH
                                       v.
                       S. NARASIMHA KUMAR AND ORS.

                                   JULY 13, 2006

B                  [AR[J[TPASAYAT ANDS.H. KAPADIA,JJ.]


         Constitution of India, 1950:

         Article 136-Abatement of appeal-Criminal appeal filed by State-
C Death of accused during pendency of appeal-Petition by his wife stating
    that appeal against him abated-Held, appeal stands abated as regards
    deceased accused-Principles regarding abatement of appeal by special
    leave on death of accused/appellant as indicated in Bondada Gajapathi
    Rao's** case reiterated.
D
           Respondent No. 3 in Criminal Appeals No. 1446-1450/2001 faced trial
    as A-3 alongwith other accused for offences punishable, inter alia, under ss.
    120-B and 414 IPC. The trial court convicted the accused. They filed revision
    petitions before the High Court. The revision petition filed by A-3 was
    numbered as Criminal. Revision No. 1424 of2001. The High Court acquitted
E   all the accused. During the pendency of the appeals before the Supreme Court,
    A-3 died. His wife filed the present petition stating that on the death of the
    respondent (A-3), the appeal against him abated.

          Disposing of the petition, the Court

F         HELD: I.I. Counsel for the parties conceded that neither in the Code
    of Criminal Procedure, 1973, nor in the Supreme Court Rules, there is any
    provision which deals with such a situation. However, as was held in Harnam
    Singh 's* case, in the interest of uniformity, there is no valid reason for
    applying to appeals under Article 136 of the Constitution a set of rules
G   different from those which govern appeals under the Code in the matter of
    abatement. (528-D; 530-D-EI

          *Harnam Singh v. The State of Himachal Pradesh, 1197513 SCC 343,
    relied on.

H                                        526
          STATE OF ANDHRA PRADESHv. S NARASIMHA KUMAR[PASA YAT,J.]            527

       1.2. In view of the decisions** of this Court, the appeal filed by the State   A
so far it questions correctness of the judgment in Criminal Revision No. 1424
of2001 stands abated on the death of the respondent (A-3). The cause title
shall indicate the applicant's name to avoid confusion. 1532-F-GI

      **Bondada Gajapalhi Rao v. State ofAndhra Pradesh, AIR (1964) SC
1645 and Harnam Singh v. The S/ale of Himachal Pradesh, 119751 3 SCC                  B
343, relied on.

       CRIMINAL APPELLATE JURISDICTION : Criminal Miscellaneous
Petition No. 2335/2005.

                                        IN
                                                                                      c
      Criminal Appeal Nos. 1446-1450 of2004.

      From the Judgment and Order dated 21.3.2003 of the High Court of
Judicature, Andhra Pradesh at Hyderabad in Criminal Revision Case Nos.                D
1415, 1418, 1419, 1424and 1430/2001.

      D. Bharathi Reddy for the Appellant.

     G. Ramakrishna Prasad, Dr. K.P. Kyalasanath, Mohd. Wasay Khan,
Suyodhan Byrapancni, Venkat Subramaniam, S. Srinivasan, K. Maruthi Rao,               E
K. Radha, Anjani Aiyagari, R.V. Kameshwaran and T.N. Rao for the
Respondents.

      The Judgment of the Court was delivered by

      ARIJIT PASAYAT, J. This petition has been filed by wife ofone D.V.              F
Chandrasekhar who was accused no.3 in C.C. No.53/l990 and was respondent
no.3 in the appeal. It is to be noted that the appeal has been filed against the
judgment rendered by a learned Single Judge of the Andhra Pradesh High
Court disposing of seYeral Criminal Revision petitions.

      All those revision petitions related to the judgment of the Court of the        G
VII Additional Munsif Magistrate, Guntur in C.C. No.53 of 1990. The accused
persons are described as A-1, A-2, A-3 etc. A- I was charged with offences
punishable under Sections 381, 411and120-B of the Indian Penal Code, 1860
(in short' IPC'); A-2 to A- I I and A-15 were charged with offences punishable
under Sections 120-B and 414 I.P.C. A-12 to A-14 were charged with offence            H
punishable under Section 411 l.P.C. A-4 died during the trial of the case. The
    528                     SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A case against A- I0 was separated. Through its Judgment dated 26.11.2000 the
    trial Court convicted the above said accused persons for the offences alleged
    against .them and awarded sentences of various descriptions.

        The High Court set aside the conviction and sentence imposed in
  respect of the concerned respondents. In the appeal as noted above, the
B deceased D.V. Chandrasekhar who was A-3 is the respondent in the Criminal
  Appeal relating to Criminal Revision no.1424 of 200 I. The applicant has filed
  the present appeal stating that on the death of the said respondent the appeal
  abated so far he is concerned. The logic of Section 394 of the Code of Criminal
  Procedure, 1973 (in short 'Cr.P.C.') was pressed into service. Learned counsel
C for the State on the other hand submitted that Section 394 Cr.P.C. does not
  govern the case of an appeal by special leave before this Court.

          The aforesaid D.V. Chandrasekhar died on 15.1.2004 and leave has been
    granted on 6.2.2004.

          It is conceded by learned counsel for the parties that neither in the
D Cr.P.C. nor in the Supreme Court Rules there is any provision dealing with
    such a situation. Section 394 Cr.P.C. reads as follows:

            "394. Abatement of appeals.-{ I) Every appeal under Section 377 or
            Section 378 shall finally abate on the death of the accused.

E           (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
F           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 shali
            not abate.

                Explanation.-Jn this section, "near relative" means a parent,
            spouse, lineal desceridant, brother or sister."
G
          It is to be noted that Section 394 Cr.P.C. corresponds to Section 431 of
    the Code of Criminal Procedure, 1898 (in short the 'Old Code').

         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
H   whether appeal by special leave against sentence of imprisonment abates on
         STATE OF ANDHRA PRADESH 1·. S. NARASIMHA KUMAR [PASAYA T.J.]       529

the death of the accused/appellant. Three separate judgments were rendered A
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 applicable under the Cr.P.C.).

       (I) 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             B
       granted under Article 136 of the 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             C
       deceased appellant accused. There 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 may be allowed to
       be continued after tlie death of the accused so should appeals, for          D
       between them no distinction in principle is possible for the purpose
       of continuance.

       (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.   E
       If the sentence affects that property, the legal representatives can be
       said 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 infructuous, the sentence
       does not affect the property of the deceased-accused in the hands of         F
       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 was under
      suspension during the trial and the fact that if th~ conviction and
      sentence were set aside, his estate would be entitled to receive full G
      pay for the period of suspension, cannot be said to affect his estate,
      because, the setting aside of the sentence would not automatically
      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 H
    530                    SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A           extension there is no warrant. Reference was made to Pranab Kumar
            Mitra v. State of West Bengal and Anr., AIR (1959) SC 144.

          Again in Harnam Singh v. The State of Himachal Pradesh, [1975] 3
    SCC 343 the question was examined. and above principles were re-iterated. It
    was, inter alia, held as follows:
B
           "6. These contentions require an examination of Section 431 of the
           Code which reads thus:

               "Every appeal under Section 41 IA, sub-section (2), or Section 417
           shall finally abate on the death of the accused, and every other appeal
C          under this Chapter (except an appeal from a sentence of fine) shall
           finally abate on the death of the appellant.

           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) r.or under Section 417 nor under any other provision of
D               Chapter XXXl of the Code. Plainly therefore, Section 431 has no
                application and the question whether the appeal abated on the
                death of the appellant is not governed strictly by the terms of
                that Section But, in the. interest of uniformity, there is no valid
                reason for applying to appeals under Article 136 a set of rules
                different from those which govern appeals under the Code in the
E               matter of abatement. It is, therefore, necessary to find the true
                meaning and scope of the provision contained in Section 431.
          8.    Chapter XXXI of the Code of 1898, called "Of Appeals" contains
                provisions governing appeals. The chapter opens with Section
                404 which provides that no appeal shall lie from any judgment or
F               order of a Criminal Court except as provided for by the Code or
                by any other law for the time being in force and ends with
                Section 431 which deals with abatement of appeals. Section
                411 A(2) provides for appeals to the High Court from orders of
                acquittal passed by the High Court in the exercise of its original
G               criminal jurisdiction. Section 417 deals with appeals to the High
                Court from original or appellate orders of acquittal passed by
                courts other than a High Court. By Section 431, appeals against
                acquittal filed under Section 411 A(2) or Section 417 finally abate
                on the death of the accused. Dead persons are beyond the
                processes of human tribunal and recognizing this, the first limb
G               of Section 431 provides that appeals against acquittals finally
     STATE OF ANDHRA PRADES!fr. S. NARASIMHA KUMAR [PASA YAT,J.]         531
      · abate on the death of the accused. Where a respondent who has           A
        been ac~uitted by the lower court dies, there is no one to answer
        the charge of criminality, no one to defend the appeal and no one
        to receive the sentence. It is of the essence of criminal trials that
        excepting cases like the release of offenders on probation, the
        sentence must follow upon a conviction. Section 258(2), Section
        306(2) and Section 309(2) of the Code provide, to the extent            B
        material, that where the Magistrate or the Sessions Judge finds
        the accused guilty and convicts him he shall, unless he proceeds
        in accordance with the provisions of Section 562, pass sentence
        on the accused according to law.
9.     Every other appeal under Chapter XXXI, except an appeal from             c
       a sentence of fine, finally abates on the death of the appellant.
       By "every other appeal" is meant an appeal other than one
       against an order of acquittal, that is to say, an appeal against an
       order of conviction. Every appeal against conviction therefore
       abates on the death of the accused except an appeal from a D
       sentence of fine. An appeal from a sentence of fine is excepted
       from the all pervasive rule of abatement of criminal appeals for
       the reason that the fine constitutes a liability on the estate of the
       deceased and the legal representatives on whom the estate
       devolves are entitled to ward off that liability. By Section 70 of
       the Penal Code the fine can be levied at any time within six years E
       after the pa~sing of the sentence and if the offender has been
       sentenced for a longer period than six years, then at any time
       previous to the expiration 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". The fact F
       that the offender has served the sentence in default of payment
       of fine is not a complete answer to the right of the Government
       to realize the fine because under the proviso to Section 386(1 )(b)
       of the Code the court can, for special reasons to be recorded in
       writing issue a warrant for realizing the fine even if the offender
       has undergone the whole of the imprisorment in defau It of G
       payment of fine. The sentence of fine remains outstanding though
       the right to recover the fine is circumscribed by a sort of a period
       of limitation prescribed by Section 70, Penal Code.
IO.    The narrow question which then requires to be considered is
       whether an appeal from a composite order of sentence combining           H
    532                    SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R.

A               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 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
B               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
                clause so as to take away from its purview appeals directed both
                against imprisonment and fine is to read into the clause the word
c               "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 "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
D               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 fine within the meaning of Section 431. All
                that is necessary is that a sentence of fine should have been
E               imposed on the accused and the appeal filed by him should
                involve the consideration of the validity of that sentence.
           11. It is difficult to discern any principle behind the contrary view.
               The reason of the rule contained in the exception is that a
               sentence of fine operates directly against the estate of the
F              deceased and therefore the legal representatives are entitled to
               clear the estate from that liability. Whether or not the sentence
               of fine is combined with any other sentence can make no difference
               to the application of that principle."

        In view of what has been stated in the aforesaid two cases, the appeal
G filed by the Stated of Andhra Pradesh so far it questions correctness of the
  judgment in Criminal Revision no.1424 of 2001 stands abated on the death of
  the respondent D.V. Chandrasekhar (A-3). The cause title shall indicate the
  applicant's name to avoid confusion. The application is accordingly disposed
  of.

H RP.                                                        Petition disposed of.