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2014 DIGILAW 358 (CHH)

Suresh Tiwari v. State of Chattisgarh

2014-10-09

PRASHANT KUMAR MISHRA

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ORDER 1. Heard learned counsel for the parties. This revision application has been preferred by the applicant (since deceased) challenging his conviction under Section 380 of the Indian Penal Code (for short the IPC) and sentence of RI for 3 months and fine of Rs. 500/- in default of payment of fine to further undergo SI for one month. 2. In course of hearing of this revision application on 10-4-2013 the applicants counsel informed the Court that the applicant has died. A report was called for to ascertain the fact of death of the applicant. The concerned Station House Officer submitted a report along with the death certificate of the applicant to the effect that the applicant Suresh Tiwari has died on 19-3-2010. 3. On 18-10-2013 learned counsel for the applicant prayed for time to bring the legal heirs of the deceased applicant on record, however, no such application has been filed. 4. When the matter was called for hearing today, learned counsel for the applicant would submit that the legal heirs of the applicant have not contacted him, therefore, it appears that they are not interested in prosecuting the revision application. However, he would submit that the revision application would not abate because no such provision akin to Section 394 of the Code of Criminal Procedure, 1973 (for short the Code) has been made applicable to the revision application. 5. Per contra, learned counsel appearing for the State would submit that even if no express provision is made in the Code for abatement of revision application, when legal heirs are not interested in prosecuting the revision application the same deserves to be dismissed as abated. 6. The question fallen for consideration is whether in absence of any express provision regarding abatement of revision application, like the one under Section 394 of the Code, which provides for abatement of appeals, the revision applications would also abate by applying the same principle? 7. Section 394 of the Code provides thus:- 394. Abatement of appeals - (1) Every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. 7. Section 394 of the Code provides thus:- 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 of 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. 8. Section 401 of the Code deals with the High Courts powers of revision. Sub-section (1) thereof provides that the High Court, while exercising revisory power may also exercise powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 of the Code. Thus, provisions contained under Section 394 of the Code concerning abatement of appeals have not been made applicable to the Court exercising revisory power. Thus, there is no express provision in the Code for dismissal of the revision application as abated on the death of the applicant. 9. In Bondada Gajapathi Rao vs. State of Andhra Pradesh, AIR 1964 SC 1645 the Supreme Court after referring its earlier judgment rendered in Pranab Kumar Mitra vs. State of West Bengal and Another, AIR 1959 SC 144 , has held that revision petitions and some appeals from sentences of fine might be continued by his legal representatives on the death of the accused pending the proceeding. The Supreme Court further held that the provisions of Section 431 of the old Code (which is now contained under Section 394 of the Code) would also be applicable to special leave to appeal under Article 136 of the Constitution of India. The Supreme Court further held that the provisions of Section 431 of the old Code (which is now contained under Section 394 of the Code) would also be applicable to special leave to appeal under Article 136 of the Constitution of India. Although on the facts of that case the Supreme Court declined to permit the legal representatives to continue the SLP, in paras 2 & 6 it has held thus:- (2) There would seem to be authority for the proposition that revision petitions and some appeals from sentences of fine might be continued by his legal representatives on the death of the accused pending the proceeding: See S. 431 of the Code of Criminal Procedure and Pranab Kumar Mitra vs. State of West Bengal, (1959) Supp. (1) SCR 63 : AIR 1959 SC 144 . It appears that in England appeals from similar sentences are permitted to be continued by the executors of the deceased appellant: See Hodgson vs. Lakeman, 1943 (1) KB 15. It is true that neither S. 431 nor the cases mentioned can be said to apply to the present case proprio vigore, for the present is not an appeal under the Code which is dealt with by S. 431 nor is it a revisional application like the one which came up for consideration in Pranab Kumar Mitras case (1959) Supp. (1) SCR 63 : AIR 1959 SC 144 , while as for the English case, it is only of persuasive value. All the same however I think it must now be held that appeals from sentences of fine may be permitted to be continued by the legal representatives of the deceased appellant. First, I find no provision making such appeals abate. If they can be continued when arising under the Code, there is no reason why they should not be continued when arising under the Constitution. If revision petitions may be allowed to be continued after the death of the accused so should appeals for between them no distinction in principle is possible for the purpose of continuance. It is true that the Code of Criminal Procedure which creates the revisional powers of a Court provides that such powers may be exercised suo motu but it does not seem to me that Pranab Kumar Mitras case (1959) Supp. It is true that the Code of Criminal Procedure which creates the revisional powers of a Court provides that such powers may be exercised suo motu but it does not seem to me that Pranab Kumar Mitras case (1959) Supp. (1) SCR 63 : AIR 1959 SC 144 was based on this for on that ground all revision cases should have been permitted to be continued and the permission should not have been confined to cases of fine. Indeed in that case this Court proceeded on the basis that there was no statutory provision applying to the case. It observed, even in the absence of any statutory provisions, we have held that the High Court has the power to determine the case even after the death of the convicted person, if there was a sentence of fine also imposed on him, because that sentence affects the property of the deceased in the hands of his legal representative. A sentence of fine affects property equally when the case is taken further up in appeal or in revision. If it is just and proper to continue the hearing in one case after the death of the accused, it would be equally so in the other case. xxx xxx xxx (6) In my view, for those reasons the legal representatives are not entitled to continue the appeal. That being so and as the sentence was one of imprisonment which would not affect anyone after the death of the accused, it cannot be said that there is anyone interested in the appeal. There is no question, therefore, in such a case for proceeding further with the appeal. 10. In R. vs. Rowe, (1955) 2 All ER 234, Lord Goddard, CJ, while presiding over the Court of Criminal Appeal, has held thus : Counsel, instructed not by the prisoner but by his widow, applies to be allowed to continue this application, but, in the opinion of the court, we cannot allow a widow, or an executor, or an administrator of a deceased person to appeal to this court unless they can show an interest, which must be a legal interest. If a person is sentenced to pay a fine and having appealed, dies, or even if he dies after or immediately after the fine has been paid, the court would, perhaps, allow his executors or administrators to carry on the appeal or to appeal merely on the ground that, if they can get the conviction quashed, they can save or recover the fine for the benefit of the estate of the deceased which they are bound of administer. Nobody is affected now by the judgment of the court because the judgment of the court was a sentence of imprisonment and the prisoner has died. If the sentence of the court had been a fine then, as I say, somebody would be affected by the judgment of the court and would have an interest in getting it set aside. 11. In the case in hand, the deceased applicant convicted under Section 380 of the IPC and has been sentenced to undergo RI for 3 months and fine of Rs. 500/- in default of payment of fine to further undergo SI for one month, therefore, in view of the law laid down by the Supreme Court in Pranab Kumar Mitra (supra) and Bondada Gajapathi Rao (supra) and by the English Court of appeal in Rowe (supra), the legal heirs of the deceased applicant were entitled to prosecute the revision application even though no express provision is made applicable to revision application for abatement of revisions or for permitting the legal heirs to prosecute the revision applications, however, since no application has been made by the legal heirs of the deceased applicant seeking permission to prosecute the revision, the instant revision application is dismissed as abated. Petition dismissed.