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TMI Blog2020 (1) TMI 1569X X X X Extracts X X X X X X X X Extracts X X X X ..... same punishment of imprisonment of two years and fine of Rs. One Lakh. In default of payment of fine amount, accused was to undergo simple imprisonment for six months each under Sections 55(a) and (g) of the Abkari Act. 2.3 An appeal was filed by the first accused Ramesan in the High Court being Criminal Appeal No. 254 of 2007 on 06.02.2007. After filing of the appeal, the appellant Ramesan died on 21.12.2007. The High Court noticed the factum of death of the appellant on 21.12.2007, however, proceeded to decide the appeal on merits referring to the principle under Section 394 Cr.P.C. The High Court after considering the evidence on record upheld the conviction. The High Court took the view that since the appellant died pending the appeal, the sentence of imprisonment has become unworkable, however, regarding the imposition of fine, there is no reason to hold that Court below committed any mistake and the appeal was consequently dismissed. This appeal has been filed by Girija A., the legal heir of Ramesan (deceased). 3. Learned counsel for the appellant contended that in view of the death of the accused on 21.12.2007, the High Court ought to have abated the entire appeal. It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Code of Criminal Procedure is recoverable from movable and immovable properties of the accused, Section 421 Cr.P.C. provided as follows:- "421. Warrant for levy of fine. - (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may- (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357. (2) The State Government may make rules regulating the manner in which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .." 13. This Court in Bondada Gajapathi Rao Vs. State of Andhra Pradesh, AIR 1964 SC 1645 had occasion to consider Section 431 Cr.P.C. A special leave petition was filed in this Court, the accused died during pendency of special leave petition. This Court again reiterated the principle on which hearing of a proceeding may be continued after the death of an accused. ;In paragraph 3 of the judgment, following was laid down:- "3. The principle on which the hearing of a proceeding may be continued after the death of an accused would appear to be the effect of the sentence on his property in the hands of his legal representatives. If the sentence affects that property, the legal representatives can be said to be interested in the proceeding and allowed to continue it." 14. This Court had occasion to consider the case of a composite sentence of imprisonment as well as fine in Harnam Singh Vs. The State of Himachal Pradesh, (1975) 3 SCC 343. In the above case, the accused was convicted under Sections 5(1)(d) and 5(2) of Prevention of Corruption Act, 1947 as well as under Section 161 Indian Penal Code and he was sentenced for rigorous imprisonment of two years and to a fine of Rs. 300. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urview appeals directed both against imprisonment and fine is to read into the clause the word "only" which is not there and which, by no technique of interpretation may be read there. The plain meaning of Section 431 is that every criminal appeal abates on the death of the accused "except an appeal from a sentence of fine". The section for its application requires that the appeal must be directed to the sentence of fine and not that it must be directed to that sentence only. If by the judgment under appeal a sentence of fine is imposed either singularly or in conjunction with a sentence of imprisonment, the appeal against conviction would be an appeal from a sentence of fine within the meaning of Section 431. All that is necessary is that a sentence of fine should have been imposed on the accused and the appeal filed by him should involve the consideration of the validity of that sentence." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n merits. 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. 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 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 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. 21. In above view of the matter, we are of the view that ends of justice be served in reviving the Criminal Appeal No. 254 of 2007 before the High Court to give an opportunity to the legal heirs of the accused to make their submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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