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2021 DIGILAW 627 (BOM)

Jerry Dsouza v. Joaquim Antonio Fernandes

2021-03-18

M.S.JAWALKAR

body2021
JUDGMENT M S Jawalkar, J. - Criminal Miscellaneous Application No. 120/2021 is an application for condonation of delay of around 311 days in filing Criminal Miscellaneous Application No. 121/2021, which is an application to bring the legal heir of the applicant on record. 2. It appears that vide judgment and order dated 07.07.2014 passed by the learned JMFC in Case No. OA/33/2012/B, the deceased applicant was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, for which, he was directed to undergo simple imprisonment for a period of one year and to pay compensation of Rs.10,25,000/- to the complainant and in default to undergo simple imprisonment for a period of two months. The said order dated 07.07.2014 was thereafter challenged by the deceased applicant before the learned Sessions Court in Criminal Appeal No. 97/2014, which was dismissed by the learned Sessions Court on 08.10.2015. Feeling aggrieved, the deceased applicant filed Criminal Revision Application No. 65/2016 before this Court, challenging the judgment and order dated 08.10.2015 passed by the learned Sessions Court, North Goa, Panaji. 3. It is submitted by Mr. Ganesh Naik, the learned Counsel for the applicant that the applicant, Jerry D'Souza expired on 28.02.2020 at Goa Medical College (GMC), Bambolim. It is submitted that due to the death of the applicant, the family of the applicant was under shock and sorrow state. Thereafter, due to COVID-19 pandemic and since there was lockdown, till December, 2020, the Counsel appearing on behalf of the applicant was not attending office. As such, the Advocate for the applicant was unaware of the death of the applicant. It is submitted that when Criminal Revision Application No. 65/2016 was listed for final hearing, the Advocate for the applicant tried to call the applicant, but failed. It is submitted that only when the Advocate for the applicant sent his office colleague to the residence of the applicant, he came to know that the applicant has expired. It is submitted that great prejudice and loss will be caused to the proposed legal heir, if the present application is not allowed. He, therefore, prays that delay of around 311 days in filing the application to bring the legal heir on record, be condoned. 4. The learned Counsel for the applicant has placed reliance on the decision of the Hon'ble Supreme Court in the case of Ramesan (D), Through LRs. Vs. He, therefore, prays that delay of around 311 days in filing the application to bring the legal heir on record, be condoned. 4. The learned Counsel for the applicant has placed reliance on the decision of the Hon'ble Supreme Court in the case of Ramesan (D), Through LRs. Vs. State of Kerala, (2020) 3 SCC 45 . He has also relied on the decision of Madras High Court in the case of M.L. Ravi Vs. The Chief Secretary & Others (W.P. No. 21701/2018 dated 23.01.2019); the decision of Gujarat High Court in Deceased Mafabhai Lalabhai Rabari Vs. State of Gujarat (Criminal Misc. Application No. 17987/2017 dated 24.08.2017); the decision of the Kerala High Court in Ambunhi Vs. State (Cri. Rev. Pet. No. 2310/2003 dated 26.02.2014). 5. It is submitted by Mr. Nilesh Shirodkar, the learned Counsel for respondent no. 1 that the criminal revision application along with the application for condonation of delay are bad in law and are liable to be dismissed at the threshold. It is submitted that there is no provision under Section 397 of Cr.P.C. for bringing the legal heirs on record and as such the criminal revision application is not maintainable. It is submitted that the legislative intention while enacting Section 397 of Cr.P.C. is very clear that legislature has not made any provision for bringing the legal heirs of the deceased accused, who died during the pendency of the criminal revision application. It is submitted that the legal heir of the deceased applicant has no right over the compensation deposited before this Court. In view thereof, he prays that the application be dismissed and the compensation deposited before this Court by the deceased applicant be released to respondent no. 1. The learned Counsel for respondent no. 1 has placed reliance on the decision of the Hon'ble Supreme Court in the case of Praban Kumar Mitra Vs. State of West Bengal & Another, (1959) AIR SC 144. 6. Heard Mr. Naik, the learned Counsel for the applicant and Mr. Shirodkar, the learned Counsel for respondent no. 1 at length. 7. The main question in these applications appear to be whether revision proceedings will get abated on the death of the accused person. 8. State of West Bengal & Another, (1959) AIR SC 144. 6. Heard Mr. Naik, the learned Counsel for the applicant and Mr. Shirodkar, the learned Counsel for respondent no. 1 at length. 7. The main question in these applications appear to be whether revision proceedings will get abated on the death of the accused person. 8. Insofar as the citations relied on by the learned Counsel on behalf of the proposed legal heir in the case of Ramesan (supra) and M.L. Ravi (supra) are concerned, though that covers continuation of appeals on the death of appellant/accused, it is held that such appeals on the death of the accused must be treated as appeals against sentence of fine and therefore, must not abate with regard to the sentence of fine in view of specific Section 394(2) of Cr.P.C. 9. The learned Counsel for the complainant/respondent no. 1 relied on Praban Kumar Mitra (supra). Para 6 of the said judgment reads as under: "In our opinion, in the absence of statutory provisions, in terms applying to an application in revision, as there are those in Section 431 in respect of criminal appeals, the High Court has the power to pass such orders as to it may seem fit and proper, in exercise of its revisional jurisdiction vested in it by Section 439 of the Code. Indeed, it is a discretionary power which has to be exercised in aid of justice. Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case. The revisional powers of the High Court vested in it by Section 439 of the Code, read with Section 435, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognized rules of Criminal Jurisprudence, and' that subordinate criminal courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code. On the other hand, as already indicated, a right of appeal is a statutory right which has got to be recognized by the courts, and the right to appeal, where one exists, cannot be denied in exercise of the discretionary power even of the High Court. On the other hand, as already indicated, a right of appeal is a statutory right which has got to be recognized by the courts, and the right to appeal, where one exists, cannot be denied in exercise of the discretionary power even of the High Court. The Legislature has, therefore, specifically provided, by s. 431 of the Code, the rules governing the right of substitution in case of death of an appellant, but there is no corresponding provision in Chapter XXXII, dealing with the question of abatement and the right of substitution in a criminal revision. We may assume that the Legislature was aware of the decision of the Bombay High Court, referred to above, when it enacted Section 431 for the first time in the Code of 1882. If the Legislature intended that ail 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 any such enactment, we may infer that the power of revision vested in the High Court under Chapter XXXII of the Code, was left untouched - to be exercised according to the exigencies of each case. The High Court is not bound to entertain an application in revision, or having entertained one, to order substitution in every case. It is not bound the other way, namely, to treat a pending application in revision as having abated by reason of the fact that there was a composite sentence of imprisonment and fine, as some of the single Judge decisions placed before us, would seem to indicate. The High Court has been left complete discretion to deal with a pending matter on the death of the petitioner in accordance with the requirements of justice. The petitioner in the High Court may have been an accused person who has been convicted and sentenced, or he may have been a complainant who may have been directed under Section 250 of the Code to pay compensation to an accused person upon his discharge or acquittal. The petitioner in the High Court may have been an accused person who has been convicted and sentenced, or he may have been a complainant who may have been directed under Section 250 of the Code to pay compensation to an accused person upon his discharge or acquittal. Whether it was an accused person or it was a complainant who has moved the High Court in its revisional jurisdiction, if the High Court has issued a Rule, that Rule has to be beard and determined in accordance with law, whether or not the petitioner in the High Court is alive or dead, or whether he is represented in court by a legal practitioner. In hearing and determining cases under Section 439 of the Code, the High Court discharges its statutory function of supervising the administration of justice on the criminal side. Hence, the considerations applying to abatement of an appeal, may not apply to the case of revisional applications. In our opinion, therefore, the Bombay majority decision, in the absence of any statutory provisions in respect of criminal revisional cases, lays down the correct approach." 10. The Hon'ble Apex Court also further held that even in the absence of any statutory provision, the High Court has the power to determine the case, 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. 11. This Court has to decide the Revision on merits, even after the death of the applicant/petitioner. It is discretionary power of the High Court to examine the correctness, legality or propriety of any finding, sentence or order passed by any inferior Court. On the death of the convicted person, the question of serving the whole or portion of his sentence of imprisonment does not arise, but the sentence of fine still remains to be examined. It is discretionary power of the High Court to examine the correctness, legality or propriety of any finding, sentence or order passed by any inferior Court. On the death of the convicted person, the question of serving the whole or portion of his sentence of imprisonment does not arise, but the sentence of fine still remains to be examined. If the fact that the fine will have to be paid out of the estate of the deceased petitioner, in revision, the ground for giving the heir or legal representative a right to continue the Appeal or the privilege of maintaining or continuing the revision, in my considered opinion, no prejudice will be caused to the complainant, if the legal heir of the deceased applicant is permitted to continue with the revision application to the extent of imposition of fine amount, which is around Rs.10 lakhs. Otherwise also, this Court will have to examine correctness, legality or propriety of the order passed by the Appellate Court, even after the death of the petitioner. 12. It appears that due to lockdown, there was no contact between the Counsel and the legal representative of the deceased applicant and the matter also came up for hearing. Only when an application was moved by the original complainant for withdrawal of the fine amount, the Advocate appearing on behalf of the applicant came to know about the death of the sole applicant. Though application is moved under Section 394(2) of Cr.P.C. which provides for abatement on the death of the appellant, there is no provision for bringing the legal representative on record in respect of Revision. As such, there is no question of condonation of delay. However, considering the reasons stated in the application, I do not see any reason not to entertain the application. 13. In such circumstances and in the interest of justice, both the criminal miscellaneous applications are allowed. Criminal Revision Application No. 65/2016 is permitted to be amended by adding the name of the proposed legal heir as applicant, within a period of ten days from the date of the order. If no amendment is carried out as per the order, the Revision Application will be decided on merits. Both the miscellaneous applications stand disposed of accordingly.