ORDER This is a petition under Article 136 of the Constitution of India, seeking leave to file civil appeal against an appellate order of City Civil Court No. 11, Ahmedabad, passed under sub-section (2) of Section 37 of the Arbitration and Conciliation Act, 1996. We are not inclined to entertain this special leave petition inasmuch as, in our opinion, an efficacious alternate remedy is available to the petitioner by way of filing a revision in the High Court under Section 115 of the Code of Civil Procedure. Merely because a second appeal against an appellate order is barred by the provisions of sub-section (3) of Section 37, the remedy of revision does not cease to be available to the petitioner, for the City Civil Court deciding an appeal under sub-section (2) of Section 37 remains a Court subordinate to the High Court within the meaning of Section 115 of the CPC. In taking this view, we find support from a decision of this Court in Shyam Sunder Agarwal & Co. vs. Union of India (1996) 2 SCC 132 . 2. The special leave petition is, therefore, dismissed. The petitioner may file a revision before the High Court and in calculating the limitation, the petitioner shall be entitled to exclusion of time spent in this Court, i.e., between the date of filing of the special leave petition and today. (N.K.R.) SLP dismissed accordingly. *************** ARTICLES COURTS RECOURSE TO SECTION 433 CR.P.C. FOR COMMUTATION OF SENTENCE *P.R. Thakur Section 433 of the Code of Criminal Procedure, 1973 (hereinafter called "the Code") provides as under: "433. The appropriate Government may, without the consent of the person sentenced, commute- (a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860); (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine; (d) a sentence of simple imprisonment, for fine." The plain reading of the aforesaid provision indicates that it is only an appropriate Government which has the power to commute sentences specified in Section 433 of the Code. This provision empowers an appropriate Government to exercise its powers of clemency. This provision empowers an appropriate Government to exercise its powers of clemency. After a sentence has been awarded to a convict, a State Government is empowered under this provision to grant commutation and exercise its powers of mercy on considerations which may be, strictly speaking, extraneous to the judicial conscience as the administration of justice by the courts is not necessarily or certainly considerate of circumstances which may properly mitigate guilt. The necessity or the justification for exercising the power of commutation has to be judged from case to case as held by the Supreme Court (Y.V. Chandrachud, C.J., O. Chinnappa Reddy and A.P. Sen, JJ.) in Kuljit Singh @ Ranga v. Lt. Governor of Delhi [ AIR 1982 SC 774 ]. Reference was made to what was said by Chief Justice Taft in James Shewan and Sons v. United States (1924) 69 Law Ed. 527 at p. 535, "the executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement in the Criminal Law". In another case, State of Punjab v. Kesar Singh [ AIR 1996 SC 2512 = 1996 CLJ 3586], the Supreme Court (Dr. A.S. Anand and S.B. Majumdar, JJ.) held that the order passed by the High Court of Punjab & Haryana allowing the petition under Section 482 of the Code, directing the release of the convict after he had undergone about 8 years of sentence for the offence of murder, was not at all appropriate or permissible in law. The Supreme Court observed that the mandate of Section 433 of the Code enables the Government in an appropriate case to commute the sentence of a convict and to prematurely order his release before expiry of the sentence as imposed by the Courts. It was held that the High Court could only direct consideration of the case of premature release by the Government and could not have ordered the premature release of the respondent itself. The right to exercise the power under Section 433 of the Code vests in the Government and has to be exercised by the Government in accordance with the rules and established principles. The right to exercise the power under Section 433 of the Code vests in the Government and has to be exercised by the Government in accordance with the rules and established principles. This judgment, therefore, leaves no manner of doubt that under Section 433 of the Code, the power of commutation of a sentence can be exercised only by State Government and none else, although recommendation for exercise of such power may be made by a Court in an appropriate case to State Government. The Supreme Court (Y.V. Chandrachud, R.S. Sarkaria and P.N. Shinghal, JJ.) in Kartar Singh v. State of Punjab [ AIR 1977 SC 349 ] declining to reduce the death sentence to life imprisonment, observed that if there were any mitigating circumstances which had not been brought on the record during the trial and appeal, the proper course was to bring them to the notice of the appropriate Government. The power of the Government to commute a sentence as detailed in Section 433 of the Code is distinguishable from power of a court to reduce a sentence judicially, which power belongs to an appellate or a revisional court, and such power can be exercised by a Court only where mitigating circumstances exist. The Constitution Bench of the Supreme Court (Y.V. Chandrachud, C.J., D.A. Desai, O. Chinnappa Reddy, E.S. Venkataramiah and Ranganath Misra, JJ.) in Bhagirath v. Delhi Administration [ AIR 1985 SC 1050 ], held that it is only the competent authority, that is, the appropriate Government which has the power under Section 433 of the Code to commute sentences specified in the provision. The power conferred under Section 433 of the Code to commute a sentence is a higher power, because it changes the character of the sentence imposed by the Court e.g., by changing a sentence of death for a life imprisonment and imprisonment for fine. Admittedly and apparently, the power to commute a sentence under Section 433 of the Code belongs exclusively to a State Government which alone can order commutation of a sentence awarded to a convict by a court of law. There may be cases where sentence as awarded may not be disturbed, their being no valid judicial consideration calling for interference or reduction in quantum of sentence. There may be cases where sentence as awarded may not be disturbed, their being no valid judicial consideration calling for interference or reduction in quantum of sentence. There might be yet another category of cases where the Legislature may have provided minimum sentence in the event of conviction for an offence like Sections 16 read with 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter called as "the PFA Act") or the Prevention of Corruption Act, 1988. Where minimum sentence has been provided for and has been awarded, a trial court as also an appellate court and a revisional court may not be in a position to award less than the minimum sentence although there might be mitigating circumstances operating in favour of an accused entitling him to a lesser punishment. In such cases, on being approached by a convict, a State Government may exercise its power of commutation under Section 433 of the Code. However, the experience reveals that there have been cases of commutation of sentence by State Governments which have been few and far between, and this benevolent power under Section 433 of the Code has been used most niggardly by State Governments, and at times, for extraneous considerations. Of late, the Supreme Court of India as also the various High Courts in India have been making recommendations to State Governments to commute sentences under Section 433 of the Code. The courts appear to have taken recourse to the beneficial provision of Section 433 of the Code for purposes of giving relief to the convicts who may be deserving the same for a variety of reasons but may not be strictly entitled to it within the framework and letter and spirit of the law. The Supreme Court of India (M.M. Punchhi Faizan Uddian and K. Jayachandra Reddy, JJ.) in Badri Prasad v. State of M.P. (decided on January 24, 1995 reported in 1996(2) FAC 187) was dealing with the case of adulteration of chillies powder which had been found to be artificially coloured, being prohibited under the rules. The conviction of the appellant was upheld by the Supreme Court. The conviction of the appellant was upheld by the Supreme Court. However, in the matter of sentence, the sentence of six months RI was reduced to SI for 3 months, and the Supreme Court recommended that the State Government release the appellant on the charging of Rs 2,000/- as further fine and directed that an appropriate order be passed by the State Government in that regard within a period of three months. What is plainly discernible from this judgment is that the Hon ble Supreme Court recommended to the State Government to commute the sentence of the appellant on the latter depositing the further fine as ordered by the Court, and the State Government was directed to pass an appropriate order under Section 433(d) of the Code within a period of three months. The State Government has, therefore no option but to comply with the directions of the Hon ble Supreme Court made euphemistically by disguising directions as recommendations. In another decision in N. Sukumaran Nair v. Food Inspector, Mavelikara (decided on January 31, 1995 reported in 1996(2) FAC 21), the Supreme Court (Madan Mohan Punchhi and K. Jayachandra Reddy, JJ.) while dealing with the case of adulteration in the ice cream by way of the reduced milk fat and total fat solids in the product, upholding the conviction of the appellant, observed that it was an appropriate case for commutation of sentence where the offence had taken place almost a decade ago. The Supreme Court, therefore, directed the appellant to deposit a sum of Rs. 6,000/- as fine in commutation of the sentence of SI for six months within a period of 6 weeks from the date of the order and to intimate the appropriate Government about the deposit of such fine so that the State Government may formalise the matter by passing appropriate orders under clause (d) of Section 433 of the Code. In Haripada Das v. State of W.B. & another (decided on March 3, 1998 reported in 1998(2) FAC 187), the Supreme Court (G.N. Ray and G.B. Pattanaik, JJ.) was dealing with four appeals against conviction recorded for the offence under Sections 16 read with 7 of the PFA Act. In Haripada Das v. State of W.B. & another (decided on March 3, 1998 reported in 1998(2) FAC 187), the Supreme Court (G.N. Ray and G.B. Pattanaik, JJ.) was dealing with four appeals against conviction recorded for the offence under Sections 16 read with 7 of the PFA Act. In Cr.A. 698 of 1990, the conviction recorded by the High Court in reversal of the acquittal ordered by the trial court, was set aside observing that there was no good reason for the High Court to interfere with the order of acquittal. In the Cr.A. 62 of 1986, the appellant had been convicted for selling mustard oil which was found to be adulterated because saponification value was found to be more than the maximum permissible limit, there being no other impurity found in the sample which could be held to be injurious to health. Mr. Ram Jethmalani, the learned Senior Counsel appearing for the appellant, contended that such variation in the saponification value was to a marginal extent and that the offence was a technical one for which the appellant had not only already suffered imprisonment for sometime but also owing to protracted litigation at different stages, he had also suffered a lot of financial hardship and mental agony. The Hon ble Supreme Court, considering the facts of the case, was of the opinion that the ends of justice may be met if the sentence of the appellant was reduced to the period already undergone, and the fine was enhanced from Rs 1,000/- to Rs 5,000/-. In the Cr.A. 61 of 1986, the appellant had been convicted for selling adulterated mustard oil as the saponification value had been found to be more than the maximum limit permissible in law. There was no impurity and nothing was found in the sample which could be injurious to health. In the Cr.A. 61 of 1986, the appellant had been convicted for selling adulterated mustard oil as the saponification value had been found to be more than the maximum limit permissible in law. There was no impurity and nothing was found in the sample which could be injurious to health. The Hon ble Supreme Court considering the facts of the case and also the fact that the appellant had already undergone detention for some period and the case had been pending for a pretty long time for which he had suffered both financial hardship and mental agony and also considering the fact that he had been released on bail over 12 years ago, felt that the ends of justice will be met in the facts of the case if the sentence was reduced to the period already undergone and the appellant was directed to pay further fine of Rs. 10,000/-. In the fourth appeal (Cr.A. No.265 of 1986), which was again the case of adulteration of mustard oil on account of saponification value exceeding marginally the prescribed limit, the Hon ble Supreme Court, considering the facts of the case and the facts that the appellant had been released by the Supreme Court long back and because of the protracted litigation up to the Supreme Court, the appellant had suffered a lot of mental agony and financial hardship and also considering the fact that the appellant had already undergone imprisonment for more than three weeks, ordered that the ends of justice will be met if the sentence of imprisonment was reduced to the period already undergone, and that the appellant will deposit a further fine of Rs 5,000/-. In Haripadas Das case, the Supreme Court did not refer to Section 433 of the Code as such, and it did not make a recommendation to the State Government for commutation of sentence. The conviction of the appellant having been recorded and upheld for the offence under Sections 16 read with 7 of the PFA Act, entailed a minimum sentence of six months. The Hon ble Supreme Court could award less than the minimum imprisonment even in such cases in exercise of its plenary power under Article 142 of the Constitution of India to do complete justice in the facts and the circumstances of a case. The Hon ble Supreme Court could award less than the minimum imprisonment even in such cases in exercise of its plenary power under Article 142 of the Constitution of India to do complete justice in the facts and the circumstances of a case. The other option open and available to the Hon ble Supreme Court in the facts of Haripada Das case was to make recommendations to the State Government for exercise of its power under Section 433 of the Code by commuting the sentence on deposit of further fine as may have been determined by the Hon ble Supreme Court. The more recent decision on the subject by the Supreme Court (K.T. Thomas and M.B. Shah, JJ.) is the one referred in Santosh Kumar v. Municipal Corporation and another (decided on January 31, 2000 and reported in 2000 SCC (Cri) 1184). The sample of groundnut oil on analysis was found not to contain any foreign substance or anything injurious to health but was found to be adulterated solely on the ground that its constituent fell below the standard very marginally. The appellant had been convicted under Sections 16(1)(a) read with 7(i) of the PFA Act and sentenced to RI for six months and fine of Rs. 2,000/-. The conviction of the appellant was upheld by the Supreme Court. However, on the question of sentence, the Hon ble Supreme Court observed that the case was almost on a parallel with the facts of the decision of the Supreme Court in N. Sukumaran Nair (supra). The offence in Santosh Kumar had taken place in 1983 and the variation was found to be only marginal. The Supreme Court observed that it was an appropriate case for commutation under Section 433(d) of the Code and, therefore, the appellant was directed to deposit in the trial court a sum of Rs. 10,000/- as fine in commutation of the sentence of six months imprisonment within a period of six weeks from the date of the order and to intimate to the appropriate Government that such fine has been deposited, and thereafter, the State Government may formalise the matter by passing appropriate order under clause (d) of Section 433 of the Code. 10,000/- as fine in commutation of the sentence of six months imprisonment within a period of six weeks from the date of the order and to intimate to the appropriate Government that such fine has been deposited, and thereafter, the State Government may formalise the matter by passing appropriate order under clause (d) of Section 433 of the Code. Following the decisions of the Hon ble Supreme Court cited above, many High Courts in India, particularly the High Courts of Delhi, Punjab & Haryana and Allahabad have been invoking Section 433 of the Code for purposes of recommending to State Governments commutation of sentences, after upholding the conviction and the sentence, on the condition of depositing additional fine in lieu of commutation of unexpired period of sentence of imprisonment. In the following cases, which had been argued by the present writer, the different Benches of the Hon ble High Court of Delhi had granted the benefit of Section 433(c) and (d) of the Code and made consequential recommendations to the Government of the NCT of Delhi for initiating and formalising the process of commutation:- Avinash Chander v. State [2001 FAJ 1 = 2000 (88) DLT 805 ] Rakesh Kumar v. State [2001(2) RCR (Cri) 439 = 2001(1) JCC 214] Satya Narain v. State [91(2001) DLT 468] Raman Kumar v. State [Crl.R. No. 147/2001 decided on 20-3-2001] Vinod Kumar v. State [Crl.R. No. 162/2001 decided on 25-5-2001] Ramesh Kumar v. State [Crl.R. No. 251/2001 decided on 31-5-2001] In all the aforesaid cases except Ramesh Kumar (supra), the learned Judges of the High Court of Delhi following the lines of the Hon ble Supreme Court in the decisions cited above, made recommendations to the State Government for formalising the process of commutation after additional fine had been deposited and intimation thereof sent to the State Government. In Ramesh Kumar (Crl.R. 251/2001) (supra), the learned Single Judge (R.C. Chopra, J.) did not make any recommendation as such for commutation of sentence but, on the other hand, ordered that the remaining sentence shall be commuted by the appropriate Government. In Ramesh Kumar (Crl.R. 251/2001) (supra), the learned Single Judge (R.C. Chopra, J.) did not make any recommendation as such for commutation of sentence but, on the other hand, ordered that the remaining sentence shall be commuted by the appropriate Government. This kind and tenor of direction does not go in tune with the law laid down by the Hon ble Supreme Court while giving connotative interpretation to Section 433 of the Code, clearly laying down that no such direction could be issued because invocation of Section 433 of the Code was the sole province and prerogative of a State Government in which judiciary could interject only by way of making a recommendation, though such a recommendation in essence may be binding upon State Government in the sense that such a recommendation had been made by way of judicial adjudication by a judicial authority in exercise of judicial power. The writer s own view is that once conviction has been recorded and sentence has been awarded, any court superior to a trial court (where a matter may come up in appellate or revisional jurisdiction) can take recourse to Section 433 of the Code for making a recommendation to State Government for commutation of a sentence. In this perspective, where conviction and sentence have been recorded by a Court of a Magistrate, an appellate court of the rank of Additional Sessions Judge is pari materia in the same position in which any other superior court like High Court or Supreme Court may be, in the matter of making a recommendation about commutation of a sentence under Section 433 of the Code. There does not appear to be any bar in doing so either in the legislative provisions or the case law for a court of Session in its appellate jurisdiction to make necessary recommendation to a State Government for commutation of a sentence as can be, has been and is being done by Hon ble Supreme Court and Hon ble High Courts. Incidentally, all the reported cases in which the judiciary has resorted to Section 433 of the Code recommending commutation, have been under the PFA Act and an unfounded impression seems to have gained ground that only such cases may be dealt with under Section 433 of the Code. Incidentally, all the reported cases in which the judiciary has resorted to Section 433 of the Code recommending commutation, have been under the PFA Act and an unfounded impression seems to have gained ground that only such cases may be dealt with under Section 433 of the Code. In the opinion of the writer, cases of all kinds, including even murder cases, can come in for court s consideration under Section 433 of the Code. The eminent grounds on the basis of which recommendation for commutation of a sentence can be made, appear to be a) financial hardship suffered by an accused b) mental agony undergone by an accused c) prolonged and inordinate delay in conclusion of trial and appeal d) failing health of an accused e) tender age or old age of an accused f) size of family and an accused being sole bread winner in family g) technical nature of offence and h) marginal variation in a strict offence etc. The most prominent reason which has always prevailed with Courts for taking a lenient view has been that during procrastinated delay in conclusion of trial and appeal, the Sword of Damocles had hung over an accused and he/she lived in a state of animated suspense. The facts of an accused having been to jail and having undergone a part of sentence of imprisonment are also mitigating circumstances prompting courts for making recommendation for commutation under Section 433 of the Code. It is the experience of the present writer that State Governments, particularly the Government of NCT of Delhi have been quite slow in acting upon recommendations made by the highest court of the State. There does not seem to be any way out for a State Government to disobey, disregard or defy such orders making legitimate recommendations for commutation. It is, therefore, the duty of a State Government to swiftly act in such matters and to pass appropriate orders immediately and in any case, within the time frame laid down in the orders. In the opinion of the writer, such recommendations made by the highest court of the land and the highest court of the State ought not to be viewed either as an encroachment or interference in the areas which strictly belong to State Government. In the opinion of the writer, such recommendations made by the highest court of the land and the highest court of the State ought not to be viewed either as an encroachment or interference in the areas which strictly belong to State Government. The State Government must not nurse any ego problem or even imagine for a while that powers belonging exclusively to it are being trampled upon by the judicial authorities. Administration of justice is business of judiciary, and executive must not only obey but also respect all judicial orders, decisions and directions, so that respect for both the organs of the State i.e., judiciary and executive may grow in the mind of a common man. **************** ABATEMENT OF CRIMINAL APPEALS P.R. Thakur* Ordinarily, every criminal appeal, whether against acquittal or conviction, will come to an end on death of appellant. Abatement of appeals is governed by Section 394 of the Code of Criminal Procedure, 1973 (hereinafter called "the Code"). Section 394 of the Code after its amendment on the basis of recommendation made by the Law Commission of India in its Forty-First Report (September, 1969, Vol. I, pp. 279-281) reads as under : "394. Abatement of appeals.-(1) Every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant : Provided that where the appeal is against a conviction and sentence of death or imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate. Explanation.-In this section, "near relative" means a parent, spouse, lineal descendant, brother or sister." 2. The Law Commission in its Forty-First Report (supra) observed that a sentence of fine does not abate on death of a person sentenced as it is not a matter which affects a person only, but affects his property. Explanation.-In this section, "near relative" means a parent, spouse, lineal descendant, brother or sister." 2. The Law Commission in its Forty-First Report (supra) observed that a sentence of fine does not abate on death of a person sentenced as it is not a matter which affects a person only, but affects his property. Thus, the principle was enacted in Section 431 of the old Code to override the earlier decision of the Bombay High Court (Jardine and Ranade JJ.) in re Nabi Shah (1894 I.L.R. 19 Bombay 714) which held that the appeal of person sentenced by the Sessions Judge to imprisonment and fine abated on his death during appeal. 3. The main objective of the amendment was to provide a machinery whereby children or members of family of a convicted person who dies during appeal, could challenge the conviction and get rid of the odium attaching to the family as a result of the conviction. 4. Section 394(1) of the Code categorically provides that all appeals under Section 377 and Section 378 of the Code shall finally abate on the death of the accused. Section 377 provides for an appeal to the High Court by the State Government against the sentence on the ground of its inadequacy. Section 378 provides for an appeal by the State Government to the High Court from an original or appellate order of acquittal passed by any Court other than the High Court. Such appeals preferred by the State Government either against inadequacy of sentence or acquittal of accused persons, are liable to abate finally on the death of the accused. Dead persons are beyond the processes of human tribunals, and recognising this, the first limb of the provision provides that appeals against inadequacy of sentence and acquittal finally abate on death of an accused. There is no room for controversy so far as this part of the provision is concerned. 5. An appeal against conviction and sentence of fine is specifically saved from abatement, as per Section 394(2) of the Code. The reason is that where a sentence of fine is imposed, the State can realise the fine from the assets left by the deceased in the hands of legal representatives. 6. 5. An appeal against conviction and sentence of fine is specifically saved from abatement, as per Section 394(2) of the Code. The reason is that where a sentence of fine is imposed, the State can realise the fine from the assets left by the deceased in the hands of legal representatives. 6. To the general rule that an appeal against conviction and sentence of imprisonment abates on death of an accused, there are two exceptions, one provided legislatively under the proviso to Section 394(2) of the Code, and the other carved out judicially by the Supreme Court by way of interpretation of the statute. 7. The legislative exception incorporated in the proviso to Section 394(2) of the Code is where an appeal is against a conviction and sentence of death or imprisonment, in the event of death of appellant during pendency of appeal, any of his/her near relatives (as defined in the explanation appended to Section 394 of the Code) may, within 30 days of the death of the appellant, apply to the appellate court for leave to continue the appeal; and if leave is granted, the appeal shall not abate. This proviso thus mollifies the rigorous rules of abatement qua such appeals, and the rationale upon which the said proviso is based is that every conviction causes a stigma on an accused which extends to near relatives even after death of such a convicted person. 8. The second exception emanates from the judicial interpretation of the terms of Section 394. The Supreme Court of India has interpreted that where an appeal is against conviction and sentence of imprisonment and fine, such appeal shall not abate on death of appellant and may be continued by his/her near relative who is entitled to be brought on record. The principle behind this exception is that fine constitutes a liability on estate of deceased, and near relatives of deceased-appellant (who may be legal representatives) are entitled to ward off that liability by contesting the correctness of such conviction and sentence awarded to an appellant who died during pendency of appeal. 9. The ticklish question which arises while interpreting Section 394(2) of the Code is whether an appeal against composite sentence of imprisonment and fine survives or abates on death of an appeal. 10. 9. The ticklish question which arises while interpreting Section 394(2) of the Code is whether an appeal against composite sentence of imprisonment and fine survives or abates on death of an appeal. 10. The Division Bench of the Allahabad High Court in Smt. Vidya Devi v. State (AIR 1957 Allahabad 20 = 1957 Cri.L.J. 16) held that in case of an appeal against sentence of imprisonment and fine both, on death of an appellant, such an appeal abated so far as it related to sentence of imprisonment and that it did not abate with regard to the sentence of fine. Similar observations made by Oak, J. in Lalla Singh v. State (1956 Allahabad Law Journal 451) were referred to and relied upon. 11. The Division Bench of the Mysore High Court (speaking through K.S. Hegde, J.) in V. Govindrajalu and others v. State of Mysore (AIR 1962 Mysore 275 = 1962(2) Cri.L.J. 765) assumed without any discussion that an appeal from composite order of sentence abated partially. The High Court held that the conviction of the appellant, who had died during the pendency of the appeal, was justified. The question, therefore, did not arise in sharp focus whether, if the conviction was bad, the order of conviction and the sentence of imprisonment could be allowed to remain? 12. The Supreme Court (Y.V. Chandrachud and P.N. Bharwati, JJ.) in Harnam Singh v. State of Himachal Pradesh ( AIR 1975 SC 236 ) overruled both the aforesaid decisions of the High Courts of Allahabad and Mysore and held them to be wrong insofar as the point of abatement was concerned. The Supreme Court observed that bisection of the appeal was not justified by the language of the statute, and such bisection would lead to unjust and anomalous results. It was further held that an appeal from a composite order of sentence combining the substantive imprisonment with fine, does not for that reason cease to be an appeal from a sentence of fine. It is something more, not less, than an appeal from a sentence of fine only. The court pointed that significantly, the parenthetical clause of Section 431 of the old Code (corresponding to Section 394 of the Code) does not contain the word "only". It is something more, not less, than an appeal from a sentence of fine only. The court pointed that significantly, the parenthetical clause of Section 431 of the old Code (corresponding to Section 394 of the Code) does not contain the word "only". To limit the operation of the exception contained in the clause so as to take away from its purview 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 provision for its application requires that the appeal must be directed against the sentence of fine, and not that it must be directed to that sentence only. The Supreme Court observed that 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 such conviction would be an appeal from a sentence of fine within the meaning of the provision. 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. 13. The Supreme Court observed that it was difficult to discern any principle behind the contrary view. The reason of the rule contained in the exception is that a sentence of fine operates directly against the estate of the deceased and, therefore, the legal representatives are entitled to clear the estate from that liability, and whether or not the sentence of fine is combined with any other sentence, can make no difference to the application of that principle. 14. The Supreme Court further added that in an appeal from a judgment imposing a sentence of fine either by itself or along with a sentence of imprisonment, the legality or propriety of the sentence of fine necessarily involves an examination of the validity of the order of conviction. The sentence follows upon the conviction and the validity of the two is inter-connected. The appellate court, while dealing with the validity of the sentence of fine, has to determine the primary question whether the conviction itself is sustainable. The sentence follows upon the conviction and the validity of the two is inter-connected. The appellate court, while dealing with the validity of the sentence of fine, has to determine the primary question whether the conviction itself is sustainable. If it holds that the conviction is unsustainable, it must set aside the conviction and the sentence or sentences following upon the order of conviction; it cannot merely set aside the sentence of fine and permit the conviction and the substantive sentence to remain. The sentence of fine becomes illegal if the conviction is wrong. If the conviction is wrong, no sentence at all can be imposed on the accused. Therefore, once the appellate court reaches the conclusion that the conviction is unwarranted, that finding must be given its full effect by setting aside the conviction and all such sentences as are founded on the order of conviction. The court observed that it would be truly unjust and anomalous if even after finding that the conviction was illegal, the court must only set aside the sentence of fine permitting the illegal conviction and substantive sentence founded upon it to remain. 15. Recently, the High Court of Delhi (Anil Dev Singh, J.) in Crl. Misc. No. 4155/97 in Crl. Appeal No. 205/1977 vide the Order dated November 19, 1997, granted leave to the widow of the appellant-deceased to continue the appeal filed by her late husband (the matter was argued by the present writer). The facts were that the appellant-deceased had been convicted and sentenced to a term of imprisonment and fine in the corruption case. During the pendency of the appeal, the appellant died on May 23, 1993. His widow applied after over four years of the death of her husband, to continue the appeal. It was pleaded on her behalf that there was the composite order of imprisonment and fine, and the appeal, therefore, did not abate on the death of the appellant, and in view of the fact that the fine had also been imposed on the appellant-deceased which could be recovered from his estate, a notice has to be issued to legal representative/s of the deceased-appellant informing date of hearing of appeal. Since the appeal did not abate, the period of limitation did not apply for seeking leave to continue the appeal under Section 394 of the Code. Supreme Court on pre-amended Section 394 16. Since the appeal did not abate, the period of limitation did not apply for seeking leave to continue the appeal under Section 394 of the Code. Supreme Court on pre-amended Section 394 16. In the decision prior to the amendment of Section 394 of the Code, the Supreme Court (A.K. Sarkar, M. Hidayatullah and J.R. Mudholkar, JJ.) in Bondada Gajapathi Rao v. State of Andhra Pradesh ( AIR 1964 SC 1645 ) held that an appeal against sentence of imprisonment abates on the death of the accused-appellant during the pendency of the appeal. In the separate but concurring opinion, Sarkar, J. observed that 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. 17. In that case, the appeal was against the sentence of imprisonment for life. On the death of the appellant, the appeal became infructuous as there was no one who could be imprisoned. The contention, however, was that in case, the conviction was set aside, the estate of the deceased would be entitled to receive the full salary from the Government. Negativing the said contention, Sarkar, J. observed that the effect of the sentence imposed being set aside would not directly entitle the legal representatives to the salary, and there was nothing to show that such orders will automatically follow the setting aside of the conviction. It was also observed "Neither has it been shown that the legal representatives cannot move the Government to pass such orders on the ground that the correctness of the conviction could not be tested because of the death of the appellant." The legal representatives of the deceased-appellant were thus held not entitled to continue the appeal. 18. Hidayatullah, J., while dealing with the petition of the legal representatives of the deceased for permission to continue to prosecute the appeal, observed that one would expect that an appeal of this character would normally abate on the death of the appellant because a criminal prosecution is concerned primarily with the punishment of an offender and not with the trial of an abstract issue about the truth or falsity of a prosecution case. It was further observed that there must always be some discernible reason for permitting another person to continue an appeal whether civil or criminal, after the death of the appellant. An appeal is not a heritable asset and does not devolve as a matter of course upon an executor or heir. The intention behind the principle laid down in Section 431 of the old Code appeared to be to afford only those persons a right whose interests are directly jeopardized by the judgment. Insofar as personal punishment (other than a fine) is concerned, it stands dissolved by the death of the offender, and an appeal to get that punishment set aside becomes infructuous and abates. It was observed that the claim of the petitioners that on the conviction of their late father being set aside, they will be entitled to claim the dues, was too remote and not directly consequential upon the issue to be tried. It was further observed that the appeal was only concerned with the correctness or otherwise of the conviction and not with any monetary claims depending upon the result of the appeal. 19. Madholkar, J. observed that it may be that it is artificial to say that if there is a pecuniary penalty, an appeal might lie, whereas if corporal punishment or imprisonment is imposed, there cannot be an appeal. It may be that the widow would be very glad to have her husband s name cleared, but a court cannot take any notice of such sentimental interest. It was further observed that it may be that the interest of the heirs of the deceased-convict to clear his name should be recognized and they ought to be allowed an opportunity to clear it. But unless it is recognised by the legislature, the Court cannot take notice of it. The legislature, by limiting in Section 431 of the old Code the survival of appeals to appeals against sentences of fine, has chosen to recognise only one kind of interest i.e. pecuniary interest and no other. Post-amended position under Section 394 20. But unless it is recognised by the legislature, the Court cannot take notice of it. The legislature, by limiting in Section 431 of the old Code the survival of appeals to appeals against sentences of fine, has chosen to recognise only one kind of interest i.e. pecuniary interest and no other. Post-amended position under Section 394 20. Under the proviso to Section 394(2) of the Code, introduced by way of the amendment, a near relative of a deceased-appellant can now seek leave of the appellate court to continue the appeal and for that purpose, the statutory period prescribed is thirty days of the death of the appellant, and on leave being granted, the appeal shall not abate. 21. The substitution thus is not of right, but on special leave being applied for within 30 days of the death and such leave being granted by the appellate court. 22. The Supreme Court (S. Ratnavel Pandian and M. Fathima Beevi, JJ.) in S.V. Kameswar Rao and another v. The State [1992 Criminal Law Journal 118] rejected the application by the legal representative of one of the accused seeking leave to continue the appeal, as the same had been filed namely after 10 years of the death of the appellant, and no explanation of sufficient cause had been given for condonation of such undue and inordinate delay of 10 years. 23. The reason advanced was that the petitioner would be deprived of securing the consequential benefit to which he would be entitled in case his application was allowed and his deceased-father was notionally acquitted. The Supreme Court did not accept such reasoning and held that the appeal abates on the death of the appellant. Revision does not abate on death 24. In State of Kerala v. Narayani Amma Kamla Devi and Ors. (AIR 1962 Supreme Court 1530), the question before the Supreme Court (J.L. Kapur, K.C. Das Gupta and Raghubhar Dayal, JJ.) was whether an application for revision under Section 439 of the old Code can be entertained by the High Court after the death of the accused person against whom the order of conviction was made. In that case, one Gobindankutty Nair, a Cashier in the bank, had been convicted by the court of the Magistrate, of an offence under Section 381 IPC on the charge of theft of an amount of Rs. 10,000/- belonging to the bank. In that case, one Gobindankutty Nair, a Cashier in the bank, had been convicted by the court of the Magistrate, of an offence under Section 381 IPC on the charge of theft of an amount of Rs. 10,000/- belonging to the bank. A Fiat car purchased by the accused had been seized by the police during the investigation on the allegation that the same had been purchased with the money stolen by the accused. The car was sold under the orders of the Court and the sale proceeds were deposited in the Court. The Magistrate sentenced the accused to rigorous imprisonment for one year and also ordered that the sale proceeds of the car be appropriated by the bank towards the amount stolen by the accused. The appeal of the accused to the Sessions Court was dismissed, and the accused died within a few hours of the pronouncement of the judgment. The widow and the two minor sons of the deceased presented the revision application in the High Court of Kerala against the judgment of the Sessions Court, praying for setting aside the order of conviction and sentence of imprisonment and also the order in respect of sale proceeds of the car. The State of Kerala took the preliminary objection in the High Court that the accused having died, the application for revision was not maintainable. The High Court rejected the said preliminary objection and thereafter it considered the revision application on its merits and set aside the conviction of the accused and also the order directing the payment of the sale proceeds to the bank. The High Court, however, granted the certificate under Article 134(1)(c) of the Constitution certifying that it was a fit case for appeal to the Supreme Court. 25. The Supreme Court held that the High Court or Court of Sessions cannot exercise its appellate jurisdiction in favour of a dead person even if an appeal had been filed by him, except in an appeal from a sentence of fine. As regards the revisional jurisdiction of the High Court, the Supreme Court observed that there was no provision similar to Section 431 of the old Code, and there was no provision. Whether a revisional application can be or cannot be made in respect of an order of conviction when the convicted person is dead. As regards the revisional jurisdiction of the High Court, the Supreme Court observed that there was no provision similar to Section 431 of the old Code, and there was no provision. Whether a revisional application can be or cannot be made in respect of an order of conviction when the convicted person is dead. The point of important distinction between the appellate jurisdiction and the revisional jurisdiction was that the former can be exercised only if an appeal is filed by a convicted person or against an order of acquittal, there was no such limitation on the Court s revisional jurisdiction. An appeal, therefore, must be preferred by the convicted person. That condition is conspicuous by its absence for exercise of powers of revision. The Supreme Court observed that all that is necessary to bring the High Court s power of revision into operation is : such information as makes the High Court think that an order made by a Sub-ordinate Court is fit for the exercise of its powers of revision. The Court thus came to the conclusion that in a proper case, the High Court can exercise power of revision of an order made against an accused person even after his death. The Supreme Court referred to the old decision of the Bombay High Court in Imperatrix v. Dongaji Andaji [(78) ILR 2 Bombay 564] wherein all the three learned Judges (Melvill J., Kemball J. and Chief Justice Westropp) were of the opinion that death of the convicted person would be no impediment in the way of the court s exercising its power of revision. 26. The Supreme Court also referred to its earlier decision in Pranab Kumar Mitra v. State of West Bengal (AIR 1959 Supreme Court 144) wherein it was held by the Constitution Bench (S.R. Das C.J., Bhagwati, B.P. Sinha, Subba Rao and K.N. Wanchoo JJ.) that the High Court could exercise its powers of revision in respect of the question of conviction and sentence where the petitioner had died pending his revision petition. The Supreme Court in Pranab Kumar Mitra (supra) observed that if the Legislature while enacting Section 431 for the first time in the Code of 1882 intended that an application in revision pending in a High Court should be dealt with on the same footing as a pending appeal, it would have enacted accordingly. The Supreme Court in Pranab Kumar Mitra (supra) observed that if the Legislature while enacting Section 431 for the first time in the Code of 1882 intended that an application in revision pending in a High Court should be dealt with on the same footing as a pending appeal, it would have enacted accordingly. But in the absence of such enactment, the Supreme Court inferred that the power of revision vested in the High Court under the Code was left untouched - to be exercised according to exigencies of the each case. 27. The Supreme Court was of the opinion that though in Pranab Kumar Mitra (supra), the Court was directly concerned with the effect of a convicted person s death on a pending revisional application, the judgment in the said case also expressed the view that a revisional application could be entertained even after the death of the convicted person. 28. The decision of the Madras High Court in Balasubramania Mudaliar v. Doraikannu Ammal (AIR 1966 Madras 154) does not lay down the correct law in view of the aforesaid decision of the Supreme Court which does not appear to have been cited before the High Court. Article 136 of the Constitution and abatement 29. The Supreme Court in Hamam Singh (supra) observed that a special leave petition under Article 136 of the Constitution was not governed by any provision of the Code and, therefore, Section 431 of the old Code (corresponding to Section 394 of the Code) has plainly no application. However, in the interest of uniformity, it was held by the Supreme Court, there was no valid reason for applying to appeals under Article 136 a set of rules different from those which governed appeals under the Code in the matter of abatement. 30. In the appeal under Article 136 of the Constitution in respect of sentence of imprisonment for life, the appellate died during the appeal and his legal representatives sought leave to continue the appeal. The Supreme Court in B. Gajapathi Rao v. State of Andhra Pradesh (supra) refused to grant leave on the principle that such a sentence would not affect his property. Though Section 431 of the old Code did not apply in terms to the case, the Court said that it would not recognise a kind of interest which the Legislature had not recognised. Though Section 431 of the old Code did not apply in terms to the case, the Court said that it would not recognise a kind of interest which the Legislature had not recognised. The English rule that law courts do not recognise any interest other than a pecuniary interest seems to be the basis of the said decision. In majority of cases, where the appellant who is sentenced to imprisonment, dies during the pendency of the appeal, the interest of his legal representative in the appeal may be purely sentimental. There are exceptional cases where the interest may also be pecuniary. Thus, if the conviction is on a charge of murder, he (if the conviction is not set aside) will be disqualified from inheriting the property of the deceased vide Section 25 of the Hindu Succession Act, 1956 and also according to the principles of Muslim law. If he dies during the pendency of the appeal, his heirs have a pecuniary interest in prosecuting the appeal. If the appeal succeeds, their right of inheritance to the property of the deceased through the appellant will be saved. No abatement on death of complainant-appellant 31. In the matter of abatement of an appeal, death of a complainant does not matter, and an appeal, therefore, does not abate on death of a complainant. 32. The Supreme Court in Khedu Mohton v. State of Bihar ( AIR 1971 SC 66 ) held that an appeal against acquittal preferred by the complainant under Section 378(4) of the Code does not abate on the death of the complaint. 33. An appeal directed against award of compensation under Section 250 of the Code does not abate, and can be prosecuted by legal representative. 34. An appeal under Section 454 of the Code (appeal against order for disposal of property at conclusion of trial under Section 452 or order of payment to innocent purchaser of money found on accused under Section 453 of the Code) does not abate on the death of the appellant. 35. However, an appeal against the order to furnish security etc. abates on the death of the appellant. Similarly, appeal under Section 341 of the Code (against the order of a Court refusing to make a complaint under Section 340 of the Code) abates on the death of the appellant. Appeal against abettor-accused 36. 35. However, an appeal against the order to furnish security etc. abates on the death of the appellant. Similarly, appeal under Section 341 of the Code (against the order of a Court refusing to make a complaint under Section 340 of the Code) abates on the death of the appellant. Appeal against abettor-accused 36. The Supreme Court in State of Maharashtra v. Eknath ( AIR 1981 SC 1571 ) held in the appeal against acquittal pending before it that on the death of the principal offender, the appeal against him abated on his death and the appeal as against the co-accused-abettor became infructuous on the death of principal offender. ***************** Parallel Citations of other Journals : Nirma Ltd. v. M/s. Lurgi Lenties Energietechink GMBH & Anr., 2002(5) Supreme 302 : (2002) 5 SCC 520 : 2002(6) JT 117 : 2002(3) Arb.L.R. 30 : 2002(3) CCC 239 : 2002(2) UJ (SC) 1245 : 2002(3) Land LR 362 : 2002(4) Comp.L.J. 184 00110