RAMESAN (DEAD) THROUGH LR. GIRIJA A versus THE STATE OF KERALA

Citation: [2020] 1 S.C.R. 94 · Decided: 21-01-2020 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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RAMESAN (DEAD) THROUGH LR. GIRIJA A
v.
THE STATE OF KERALA
(Criminal Appeal No. 77 of 2020 )
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/
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
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,
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
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
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
   [2020] 1 S.C.R. 94
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of fine – Code of Criminal Procedure, 1898 – ss.431, 439 – Kerala
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
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.
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
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
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
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
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
RAMESAN (D) THR. LR. GIRIJA A v. THE STATE OF KERALA
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given an opportunity t

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