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Ramesan (Dead)
Thr0ugh Lr. Girija
vs The State 0f
Kerala 0n 21
January 2020 2020
INSC 62

A First Inf0rmati0n Rep0rt was registered

against Ramesan under Secti0ns 55 (a)
and Signature N0t Verified (g) 0f the Kerala
Abkari Act [1 0f 1077 Digitally signed by
MEENAKSHI K0HLI (ME)]. Charge under
Secti0ns 55(a) and Date: 2020.01.21
16:47:15 IST Reas0n:

Pr0secuti0n led 0ral and d0cumentary

evidence t0 pr0ve the charge. Statement 0f
Ramesan was als0 rec0rded under Secti0n
313 0f Cr.P.C., wh0 c0mpletely denied the
incident and charge.

Additi0nal Sessi0n Judge

vide its 0rder dated
20.12.2006 c0nvicted the
first accused Ramesan under
Secti0n 55(a) and imp0sed
impris0nment f0r a peri0d
0f tw0 years and a fine 0f
Rs. 0ne Lakh. The accused
was als0 c0nvicted and
sentenced under Secti0n
55(g) 0f the same
punishment 0f impris0nment
0f tw0 years and fine 0f
Rs. 0ne Lakh. In default 0f
payment 0f fine am0unt,
accused was t0 underg0
simple impris0nment f0r six
m0nths each under Secti0ns
 55(a) and (g) 0f the Abkari
Act.

An appeal was filed by the

first accused Ramesan in
the High C0urt being
Criminal Appeal N0. 254 0f
2007 0n 06.02.2007.

After filing 0f the appeal, the appellant

Ramesan died 0n 21.12.2007. The High
C0urt n0ticed the factum 0f death 0f the
appellant 0n 21.12.2007, h0wever,
pr0ceeded t0 decide the appeal 0n merits
referring t0 the principle under Secti0n 394
Cr.P.C. The High C0urt after c0nsidering
the evidence 0n rec0rd upheld the
c0nvicti0n. The High C0urt t00k the view
that since the appellant died pending the
appeal, the sentence 0f impris0nment has
bec0me unw0rkable, h0wever, regarding
the imp0siti0n 0f fine, there is n0 reas0n t0
h0ld that C0urt bel0w c0mmitted any
mistake and the appeal was c0nsequently
dismissed. This appeal has been filed by
Girija A., the legal heir 0f Ramesan
(deceased).
Learned c0unsel f0r the
appellant c0ntended that in
view 0f the death 0f the
accused 0n 21.12.2007, the
High C0urt 0ught t0 have
abated the entire appeal.
It is submitted that
Secti0n 394 0f Cr.P.C.
saves the appeal, which
arises against sentence 0f
fine 0nly. When there was
c0mp0site sentence 0f
impris0nment as well as
fine, the appeal has t0
abate b0th against the
sentence 0f impris0nment as
well as fine. It is
c0ntended that High C0urt
c0mmitted err0r in
pr0ceeding t0 decide the
appeal 0n merits. High
C0urt 0ught t0 have abated
the appeal in t0t0.

Learned c0unsel f0r the

State refuting the
submissi0n c0ntends that
there being sentence 0f
fine als0, the appeal has
rightly been decided 0n
merits by the High C0urt.
The sentence 0f fine 0r
c0mp0site sentence 0f
impris0nment and fine, is
als0 a sentence 0f fine.

We have c0nsidered the

submissi0ns 0f the learned
c0unsel f0r the parties and
have perused the rec0rds.
This C0urt had 0ccasi0n t0 c0nsider the
pr0visi0ns 0f Secti0ns 431 and 439 0f
Cr.P.C. 1898 in Pranab Kumar Mitra Vs.
State 0f West Bengal and An0ther, AIR
1959 SC 144. Secti0n 439 pr0vides f0r
revisi0nal jurisdicti0n 0f the High C0urt.
0ne 0f the issues was as t0 whether
Secti0n 431 applies t0 revisi0nal
applicati0n filed in the High C0urt. [1]

This C0urt in B0ndada Gajapathi Ra0 Vs.

State 0f Andhra Pradesh, AIR 1964 SC
1645 had 0ccasi0n t0 c0nsider Secti0n
431 Cr.P.C. A special leave petiti0n was
filed in this C0urt, the accused died during
pendency 0f special leave petiti0n. This
C0urt again reiterated the principle 0n
which hearing 0f a pr0ceeding may be
c0ntinued after the death 0f an accused.
;In paragraph 3 0f the judgmenthis C0urt
had 0ccasi0n t0 c0nsider the case 0f a
c0mp0site sentence 0f impris0nment as
well as fine in Harnam Singh Vs. The State
0f Himachal Pradesh, (1975) 3 SCC 343. In
the ab0ve case, the accused was
c0nvicted under Secti0ns 5(1)(d) and 5(2)
0f Preventi0n 0f C0rrupti0n Act, 1947 as
well as under Secti0n 161 Indian Penal
C0de and he was sentenced f0r rig0r0us
impris0nment 0f tw0 years and t0 a fine 0f
Rs.300. C0ntenti0n was raised bef0re this
C0urt that since the deceased was n0t
sentenced t0 pay a fine 0nly but was
punished with a c0mp0site sentence 0f
impris0nment and fine, the appeal w0uld
abate as regards the sentence 0f fine als0.
Such c0ntenti0n was n0ted in paragraph 4
0f the judgment.[2]

Rejecting the ab0ve submissi0n, this C0urt

laid d0wn that if by the judgment under
appeal a sentence 0f fine is imp0sed either
singularly 0r in c0njuncti0n with a sentence
0f impris0nment, the appeal against
c0nvicti0n w0uld be an appeal fr0m a
sentence 0f fine within the meaning 0f
Secti0n 431
The ab0ve judgment
categ0rically laid d0wn that even if
sentence 0f fine is imp0sed al0ngwith the
sentence 0f impris0nment under Secti0n
431, such appeal shall n0t abate. The
similar expressi0n, which was used in
Secti0n 431, i.e., “except an appeal fr0m
the sentence 0f fine” has been used in
Secti0n 394 Cr.P.C. Thus, the appeal in the
present case where accused was
sentenced f0r impris0nment as well as f0r
fine has t0 be treated as an appeal against
fine and was n0t t0 abate and High C0urt
did n0t c0mmit any err0r in deciding the
appeal 0n merits.
This C0urt had 0ccasi0n t0 c0nsider
Secti0n 394 Cr.P.C. in Lakshmi Shanker
Srivastava Vs. State (Delhi Administrati0n),
(1979) 1 SCC 229. In the ab0ve case, the
accused was sentenced t0 suffer rig0r0us
impris0nment f0r 18 m0nths 0n each c0unt
and a fine 0f Rs.200. The accused had
died during pendency 0f the appeal in this
C0urt and argument was raised that in
view 0f the ab0ve, the appeal abates and
cann0t be pr0ceeded with.
In the ab0ve case, a leave
was 0btained under the
pr0vis0 t0 Secti0n 394(2)
by legal heirs t0 c0ntinue
the appeal. This C0urt had
0verruled the primary
0bjecti0n that appeal
sh0uld abate alth0ugh
relying 0n the pr0vis0 t0
Secti0n 394(2). The
principle regarding n0n-
abatement 0f the appeal
fr0m a sentence 0f fine as
c0ntained in Secti0n 431 0f
Cr.P.C., 1898 as well as
Secti0n 394 0f present
Cr.P.C. is the same. A
similar legislative scheme
has been c0ntained, which
was 0ccurring in Secti0n
431 Cr.P.C., 1898, hence,
judgment 0f this C0urt
regarding interpretati0n 0f
Secti0n 431, Cr.P.C. as has
been d0ne by this C0urt in
B0ndada Gajapathi Ra0
(supra) and Harnam Singh
(supra) shall squarely
apply t0 the interpretati0n
0f Secti0n 394 Cr.P.C.
We, thus, c0nclude that the appeal filed by
accused Ramesan in the High C0urt was
n0t t0 abate 0n death 0f the accused. The
High C0urt rightly did n0t direct f0r
abatement 0f appeal and pr0ceeded t0
c0nsider the appeal 0n merits. The appeal
bef0re the High C0urt being against
sentence 0f fine was required t0 be heard
against the sentence 0f fine despite death
0f accused-appellant.

Alth0ugh, we have upheld the view 0f the

High C0urt that appeal filed by the
accused was n0t t0 abate and was
required t0 be heard and decided 0n merits
but there is 0ne aspect 0f hearing 0f the
appeal bef0re the High C0urt, which need
t0 be n0ted. Fr0m the judgment 0f the High
C0urt, it d0es n0t appear that after the
death 0f the appellant-accused, his legal
heirs were given 0pp0rtunity t0 pr0ceed
with the appeal against the sentence 0f
fine. The judgment 0f the High C0urt d0es
n0t als0 menti0n that any c0unsel has
appeared f0r the legal heirs. The High
C0urt 0ught t0 have given an 0pp0rtunity t0
legal heirs 0f the accused t0 make their
submissi0ns against the sentence 0f fine,
which fine c0uld have been very well
rec0vered fr0m the assets 0f the accused
in the hands 0f the legal heirs.
In ab0ve view 0f the matter, we are 0f the
view that ends 0f justice be served in
reviving the Criminal Appeal N0. 254 0f
2007 bef0re the High C0urt t0 give an
0pp0rtunity t0 the legal heirs 0f the
accused t0 make their submissi0ns
against the sentence 0f fine.

In result, the appeal is partly all0wed. The

judgment 0f the High C0urt dated
06.03.2014 is set aside and Criminal
Appeal N0.254 0f 2007 is revived bef0re
the High C0urt t0 be heard afresh after
giving an 0pp0rtunity t0 the legal heirs 0f
the accused.

1. https://indiankanoon.org
2. www.scconline.com

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Last edited 2 years ago by Him Modi