SC says imprisonment shall abate due to death
The Supreme Court (SC), in Ramesh (deceased) v The State of Kerala, says if the accused-appellant dies during the pendency of a criminal appeal against a composite sentence of imprisonment and fine, the appeal does not abate as the Section 394 of the Code of Criminal Procedure (CrPC) deals with abatement of appeals, even though the sentence of imprisonment will get abated.
Sentence of fine shall not abate
The SC, in the above case, says that on account of the death of the accused the appeal against a sentence of fine shall not abate, but the fine could be recovered from the assets of the accused, even if it is in the hands of the legal heirs.
Fine can be levied within six years
The Section 70 of the Indian Penal Code says, “Fine leviable within six years, or during imprisonment—Death not to discharge property from liability.—The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment 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”.
In composite punishment the fine does not abate
The SC judgment in Harnam Singh v The State of Himachal Pradesh, [(1975) 3 SCC 343] categorically laid down that even if sentence of fine is imposed along with the sentence of imprisonment under Section 431, such appeal shall not abate.
In an appeal from a sentence of fine
In Pazhani v State of Kerala [2017 (1) KLT 341], a Full Bench of the Kerala High Court held that in an appeal from a sentence of fine, the near relatives of the appellant would be entitled to come on record and continue to prosecute the appeal.
No time limit is fixed for filing an application by the near relatives to come on record. Since the Section 394 (2) of the CrPC provides for a period of thirty days for filing an application for leave to continue the appeal, the period for filing an application to come on record in an appeal from a sentence of fine can also be taken as thirty days. Within the period of thirty days if the near relatives do not file an application to come on record, the court shall consign the appeal to record room.
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 the merits, provided the application is filed without undue delay. If nobody comes forward, nothing prevents the State from recovering the fine.
Consigning the Appeal to the record room is only for the purpose of enabling the near relatives to approach the court to redress their grievance.
In an appeal from a sentence of imprisonment & fine
The above said Full Bench, in Pazhani v State of Kerala [2017 (1) KLT 341], adds that in the case of an appeal to which the Section 394 (2) applies, which include an appeal from a sentence of imprisonment and fine, an application for leave shall be filed within thirty days of the death of the appellant, if the near relatives want to challenge the sentence of imprisonment.
If the near relatives do not wish to challenge the sentence of imprisonment, the application can be treated as an application filed in an appeal from a sentence of fine.
Appeal cannot be dismissed as abated
However, the Full Bench did not approve the view that the appeal is liable to be dismissed as abated in case the near relatives do not come forward to challenge the sentence of fine.
Appeal not to be disposed without hearing the party
And, the Full Bench did not approve the view that the appellate court is bound to dispose of the appeal on the merits, even after the death of the appellant and even if no near relative applies to the appellate court to come on record to challenge the sentence of fine. Such a disposal on the merits without the affected party being heard is not contemplated under the CrPC.
If no legal heir comes the appeal will stand abated
The paragraph 9 in the judgement in Oolli Baby @ Baby vs State Of Kerala [(2019) 3 KLT 706], relying on the judgement of the Full Bench of this Court in Pazhani v State of Kerala [2017 (1) KLT 341], clearly lays down the procedure to be followed in an appeal against sentence of imprisonment as well as fine.
In such a case where the accused/appellant has died and where none of the near relatives of the accused has come forward to prosecute the appeal, the appeal would stand abated in regard to the sentence of imprisonment, but the fine remains, and the appeal shall be closed and consigned to the record room.
The consigning of the Appeal to the record room is only for the purpose of enabling the near relatives to approach the court to redress their grievance, as stated in the above said Full Bench judgement.
References
- Ramesh (deceased) v The State of Kerala
- Harnam Singh v The State of Himachal Pradesh, [(1975) 3 SCC 343]
- Pazhani v State of Kerala [2017 (1) KLT 341]
- Oolli Baby @ Baby vs State Of Kerala [(2019) 3 KLT 706]
