Rajasthan High Court - Jodhpur

Deep Chand vs Union Of India on 21 February, 2022

Bench: Manindra Mohan Shrivastava, Madan Gopal Vyas

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Appeal No. 505/2005

Deep Chand S/o Shri Kesri Mal Kasat, by caste Maheshwari, resident of Plot No. 816, Kasat Bhawan, Sardarpura, Jodhpur

----Appellant Versus Union Of India

----Respondent

For Appellant(s) : Mr. Vijay Purohit For Respondent(s) : Dr. Sachin Acharya, Sr. Advocate with Mr. Rahul Rajpurohit

HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE MADAN GOPAL VYAS

Order

21/02/2022

Heard on application for abatement of appeal under Section

394 of CrPC filed by the respondent.

Learned Senior Counsel appearing for respondent would

argue that the appeal was preferred by the deceased appellant-

Deep Chand who died on 05.08.2010. It is argued that after

death, the appeal would abate as the deceased was convicted and

sentence of imprisonment was imposed on him. Even if it is a

composite sentence of fine and imprisonment, imprisonment being

the main component of the sentence, the appeal would abate.

On the other hand, learned counsel for the appellant relying

upon the recent judgment of the Supreme Court in the case of

Ramesan (Dead) Thro' LR's. Girija A. Vs. State of Kerela

[2020 Cr.L.R. (SC) 173] would submit that where the sentence

(2 of 6) [CRLA-505/2005]

is composite one, not only being of imprisonment but also a fine,

the appeal would not abate under the provisions of law.

After hearing the learned counsel for the parties, in our

considered opinion, where sentence is a composite one including

imprisonment as well as fine, the appeal would not abate under

Section 394 of CrPC. In the case of State Rep. by The Inspector of

Police (supra), their Lordships in the Supreme Court, relying upon

earlier decisions in the cases of Bondada Gajapathi Rao Vs.

State of Andhra Pradesh, AIR 1964 SC 1645, Harnam Singh

Vs. State of Himachal Pradesh, (1975) 3 SCC 343 and

Lakshmi Shanker Srivastava Vs. State, (1979) 1 SCC 229,

have categorically held that in case of composite sentence

comprising of imprisonment and fine, there will be no abatement

of appeal. In para 16 of the aforesaid judgment, it was held as

below:-

"16. The above judgment 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. Thus, the appeal in the present case where accused was sentence 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 merits."

The principle applied in the aforesaid decision is that where

along with imprisonment fine is imposed, if the appeal is allowed

to be abated upon death, the right to property of the legal heir of

the deceased may be adversely affected in the event the fine

amount is sought to be recovered by attachment and sale of the

property in the hands of the legal representatives.

(3 of 6) [CRLA-505/2005]

In view of the above enunciation of law, it is well settled

legal position that the appeal in such cases where sentence is a

composite one including fine along with imprisonment, the appeal

would not abate.

The other submission of the learned counsel for the

respondent that even if the appeal does not abate, yet if the

application for substitution of LR's is not filed within a reasonable

period of 30 days as provided in the proviso to Sub-section(2) of

Section 394, the appeal would otherwise abate, cannot be

accepted because abatement can take place only by operation of

law as provided in Section 394 and not otherwise.

Proviso to Sub-section (2) of Section 394 is applicable only in

a case where the appeal is against a conviction and sentence of

death or of imprisonment and the appellant dies during the

pendency of the appeal. In such a case, if any of his near relatives

had applied to the Appellate Court for leave to continue the appeal

within 30 days, the consequence otherwise flowing under Sub-

section (2) is not attracted and the appeal does not abate.

However, the provision of abatement itself are not applicable in

case of composite sentence of imprisonment and fine and it

cannot be said that even though appeal would not abate under

Section 394 of Cr.P.C. yet if the near relatives does not file

application for leave to continue within 30 days, the appeal would

abate. This argument of learned senior counsel for the respondent

therefore is not acceptable in law.

The last submission of the learned senior counsel for the

respondent is that in any case even if it is held that the appeal

would not abate under Section 394 CrPC, nevertheless, the legal

heir ought to take necessary steps to prosecute the appeal after

(4 of 6) [CRLA-505/2005]

death of the original appellant. He would submit that the legal heir

of the deceased did not approach the Court by moving any

application or filing any Vakalatnama or moving any application for

correction of the cause title to implead her as a party but it was

only when application for dismissal of appeal as having abated

was filed and notice was issued that the legal representative-wife

of the deceased appeared before the Court and at that belated

stage, prayer has been made for allowing her to prosecute the

appeal. Therefore, such belated application is liable to be rejected.

In support of this contention, learned senior counsel for the

respondents has placed reliance on order dated 10.12.2019

passed in S.B. Criminal Appeal No. 1245/2016.

The order in the aforesaid case has been passed on the basis

that it was a case where application was not filed to prosecute the

appeal with the leave of the Court, the appeal would have abated.

It was neither argued nor decided by the learned Single Judge as

to whether the appeal would abate for not moving any application

for grant of leave to continue the appeal even in cases where law

does not require such application to be filed.

In such cases, where the appeal does not abate under

Section 394, the appeal will continue to remain pending. Present

is not a case where appeal was listed on number of occasions but

nobody appeared and the legal heir of the deceased are not

inclined to prosecute the appeal. In a case where there is

requirement of law to move application for grant of leave to

prosecute the appeal, the consequence of belated application

without sufficient cause may lead to dismissal of the appeal.

However, that principle will not be applicable in cases where the

consequence of abatement of appeal does not ensue because of it

(5 of 6) [CRLA-505/2005]

being a case of composite sentence of imprisonment and fine

both.

It is pertinent to mention here that in the case of Ramesan

(Dead) Thro' LR's. Girija A. (supra), their Lordships in the

Supreme Court noted that after death of the appellant accused,

opportunity was not given to the legal heirs of the deceased. It

was held as below:-

"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- accused, his legal heirs where 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 have been very well recovered from the assets of the accused in the hands of the legal heirs."

From what has been observed by the Supreme Court, we

have to hold that in such cases where the appeal does not abate,

as soon as it is brought to the notice of the Court that the

appellant has died, a notice is required to be issued to the legal

heirs of the deceased accused appellant to make their submissions

against the sentence and fine because if they are not granted such

opportunity, the fine could very well be recovered from the assets

of the accused which are in the hands of the legal heirs. It is only

when despite opportunity granted, the legal heirs do not prosecute

the appeal, the appeal itself may be dismissed as infructuous.

Present is not a case where despite notice given by the Court

requiring the legal heirs to appear before the Court to prosecute