Rajan vs State Of Kerala
2021 Latest Caselaw 23749 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
                         CRL.A NO. 1953 OF 2006
   AGAINST THE JUDGMENT DATED 16.9.2006 IN SC 384/2001 OF
 ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC), MAVELIKKARA
APPELLANT/ACCUSED:

            RAJAN
            KIZHAKKATHIL PUTHIYAVEEDU, MUTTOM MURI, CHEPPAD
            VILLAGE, KARTHIKAPPALLY.

            BY ADV SRI.RINNY STEPHEN



RESPONDENT:

            STATE OF KERALA
            REP. BY THE STATE PROSECUTOR,, HIGH COURT OF
            KERALA, ERNAKULAM.

            BY SRI SANAL P RAJ, PUBLIC PROSECUTOR



     THIS     CRIMINAL    APPEAL    HAVING    BEEN    FINALLY   HEARD    ON
30.11.2021,     THE   COURT    ON   THE      SAME    DAY   DELIVERED    THE
FOLLOWING:
 Crl.A.No.1953/2006

                                  -:2:-

                               JUDGMENT

Dated this the 30th day of November, 2021

This appeal has been filed by the accused in

S.C.No.384/2001 on the files of the Additional Sessions Court,

Mavelikara against the judgment dated 16.9.2006.

2. The court below found the accused guilty for the

offence punishable under Section 55(a) of the Abkari Act and he

was convicted for the said offence. He was sentenced to undergo

rigorous imprisonment for a period of three years and to pay a

fine of Rs.1,00,000/-, in default to undergo rigorous

imprisonment for a further period of one year.

3. When the appeal came up for hearing, the learned

counsel for the appellant, Sri. Rinny Stephen, submitted that the

appellant passed away. Thereafter, opportunity was given to

take steps to implead the legal heirs of the appellant. Today,

when the appeal is taken up, the learned counsel for the

appellant submits that, the legal heirs conveyed him that they

are not interested to come on record and to proceed with the

appeal.

Crl.A.No.1953/2006

4. Section 394 of Cr.P.C deals with the abatement of

appeals. Section 394(1) of Cr.P.C provides that, every appeal

under Sections 377 or 378 of Cr.P.C shall finally abate on the

death of the accused. Section 394(2) of Cr.P.C states that every

other appeal under Chapter XXIX (except an appeal from a

sentence of fine) shall finally abate on the death of the appellant.

The proviso to Section 394(2) 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 of

his near relative may, within thirty days of 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.

5. A Full Bench of this Court in Pazhani v. State of

Kerala (2017 (1) KHC 173) has considered the question whether

an appeal against conviction and sentence of imprisonment as

well as fine would abate on the death of the appellant/accused, if

no relative of the appellant comes forward to continue to

prosecute the appeal. It was held that in the case of an appeal

from sentence of fine, there is no abatement of appeal on the

death of the accused and the appeal can be prosecuted by the Crl.A.No.1953/2006

near relatives of the deceased appellant if they voluntarily come

forward to prosecute the appeal. It was further held that, if the

near relatives do not file an application to come on record with

the stipulated period, the court shall consign the appeal to the

record room and if the near relatives wish to come on record,

they would be entitled to file an application to revive the appeal,

in which case the court would be justified in hearing the appeal

on merits, provided the application is filed without undue delay.

Following the dictum laid down in Pazhani (supra) a Single

Bench of this Court in Oolli Baby @ Baby v. State of Kerala

(2020 (1) KHC 590) has held that in an appeal against sentence

of imprisonment as well as of fine, if the near relatives of the

accused do not come forward to prosecute the appeal, the appeal

would stand abated insofar as the sentence of imprisonment is

concerned and the appeal shall be closed and consigned to the

record room. The supreme court in Ramesan (dead) Through

Lr. Girija A v. State of Kerala [(2020) (3) SCC 45] has held

that the appeal before the high court against the sentence of

imprisonment and fine is required to be heard against sentence

of fine despite death of the accused. It was further held that the Crl.A.No.1953/2006

legal heirs should be given an opportunity to proceed with the

appeal against sentence of fine.

6. As already stated, this is an appeal filed under Section

374(2) of Cr.P.C. None of the near relatives of the appellant has

filed an application to continue the prosecution of the appeal. The

learned counsel for the appellant submitted that the near

relatives are not interested to prosecute the appeal. Thus, even

though opportunity was given to the legal heirs, they have not

come forward to prosecute the appeal. Hence, I am of the view

that applying the dictum laid down in Pazhani (supra), the

appeal can be closed and consigned to the record room.

Accordingly, this appeal stands abated insofar as the

sentence of imprisonment is concerned and it is closed and

consigned to the record room.

Sd/-

                                      DR. KAUSER EDAPPAGATH
                                               JUDGE
kp                     True copy
                          P.A. To Judge