Sri Pearey v. State — 1956 DIGILAW 410 (ALL)

JUDGMENT R.N. Gurtu, J. - This is an appeal by one Piarey Who was convicted u/s 307/34, IPC and was sentenced to three year's rigorous imprisonment and a fine of Rs. 100, in default six months' rigorous imprisonment. 2. Upon the opening of the appeal Mr. Gopal Behari informed me that Piarey Appellant was dead. 3. The question which arises, is whether the appeals abated wholly or to what extent. 4. Section 431 of the Code of Criminal Procedure deals with the question of abatement and runs as follows: Every appeal u/s 411A, Sub-section (2), or Section 417 shall finally abate on the death of the accused, and very other appeal, under this Chapter (except an, appeal from a sentence of fine) shall finally abate on the death of the Appellant. 5. Two cases, viz. Bhulan Lal Vs. The State, AIR 1954 All 783 and Smt. Vidya Devi v. The State 1956 AWR (H.C.) 693 have recently considered this section. 6. Both in the case of Bhulan Lal Vs. The State, AIR 1954 All 783 and that of Smt. Vidya Devi 1956 AWR (H.C.) 693 this Court has taken the view that qua the sentence of fine, the death of an Appellant does not bring about An abatement of the appeal. In Vidya Devi's 1956 AWR (H.C.) 693 case it seems to be suggested, however that the sentence of imprisonment could not be touched and the Court could only examine the conviction for the purposes of the sentence of fine. It seems to me that in a case where a sentence of fine is involved, both the sentence of imprisonment and the sentence of fine would be liable to be set aside upon the conviction being set aside. It would be most illegal to hold that there could subsist a conviction for the same offence for the purpose of the sentence of imprisonment and yet for the purposes of the fine the conviction could be set aside. In this connection Section 410 of the Code of Criminal Procedure may be cited. It runs as follows: Any person convicted on a trial held by a Sessions Judge, or any Addl. Sessions Judge, may appeal to the High Court 7. Section 410 of the Code of Criminal Procedure does no suggest that there is one appeal from a sentence of fine and another from a sentence of imprisonment. It runs as follows: Any person convicted on a trial held by a Sessions Judge, or any Addl. Sessions Judge, may appeal to the High Court 7. Section 410 of the Code of Criminal Procedure does no suggest that there is one appeal from a sentence of fine and another from a sentence of imprisonment. There is one appeal and it is from a conviction, though when hearing the appeal the Court can deal with the sentence of fine as well as imprisonment u/s 423, Code of Criminal Procedure. In my view, therefore, what Section 431, Code of Criminal Procedure clearly means is that if in an appeal a sentence of fine is involved, then the appeal does not abate and the conviction, as well as the sentence, whether of imprisonment or fine can be set aside. 8. The view taken in Smt. Vidya Devi's 1956 AWR (H.C.) 693 case further is that it was for the State to supply the address of the legal representatives of a deceased Appellant so that the said representatives could be brought upon the record of the appeal. In my view, there is no obligation cast upon the, State to bring the deceased Appellant's, heirs on the record. It is not clear how the legal representatives could be substituted, and I think that the heirs of a deceased Appellant cannot really be substituted in a Criminal appeal, though they might be permitted to prosecute the appeal, to argue it, or to appoint advocates. The State Would not ordinarily know the names of the legal representatives of the deceased Appellant or even know of his death at once if he were out on bail. On the other hand, the legal representatives of the deceased Appellant would know when the Appellant died and if they wanted to prosecute the appeal themselves, they could indicate to the Court their desire to do so. If such representatives intimated to the court that they desired to prosecute the appeal, they could then be permitted to argue the appeal themselves or to appoint a counsel. This position seems to be more reasonable than asking the State to go on a hunt in the country side trying to discover who the legal representatives of the deceased Appellant were. I gave Mr. Gopal Behari an opportunity of contacting the legal representatives of the deceased Appellant. This position seems to be more reasonable than asking the State to go on a hunt in the country side trying to discover who the legal representatives of the deceased Appellant were. I gave Mr. Gopal Behari an opportunity of contacting the legal representatives of the deceased Appellant. He wrote to the local vakil through whom the deceased Appellant had approached him for filing the appeal but the local vakil is unable to give any assistance. Section 423 of the Code of Criminal Procedure enjoins that the court should hear the Appellant or his pleader. Obviously, in this case the Appellant cannot be heard because he is dead and Mr. Gopal Behari says that he can no longer represent the deceased Appellant because his engagement came to an end when the Appellant died Mr. Gopal Behari has, however, very kindly agreed to my request to act as amicus curiae and I had the advantage of listening to his argument, but I am of the view that it is not necessary for a Court to appoint even an amicus curiae because if the Appellant is unable to be heard being dead, and his pleader cannot present an argument, then the Court cannot be expected to hold over the herring of the appeal on the ground that there cannot be a strict compliance with Section 423 of the Code of Criminal Procedure. In such a case, so much of Section 423 of the Code of Criminal Procedure should be complied with, which it is possible to comply with and the Court should by itself peruse the record and dispose of the appeal. * * * * 9. Their Lordship then discussed the prosecution case and the evidence and came to the following conclusion. * * * * 10. The result is that the conviction and sentence of Piarey are set aside. The amount of fine, if recovered, shall be refunded to the heirs of the deceased Appellant on their application.