ORDER : 1. The appellant is the first accused in S.C.No.36/2005 on the file of the Sessions Court, Manjeri. The appeal has been filed by him assailing the verdict of guilty, conviction and sentence in a prosecution for the offence punishable under Section 489B IPC. The appellant has been convicted and sentenced to rigorous imprisonment for three years and to pay a fine of Rs.5000/- and in default of payment of fine to undergo simple imprisonment for six months. The second accused was found not guilty and hence acquitted. 2. When the appeal was taken up for hearing, it was submitted that the appellant/1st accused is no more. A copy of the death certificate of the appellant produced, shows that he died on 26/12/2014. The question is, has the appeal abated on the death of the sole appellant ? 3. Section 394 of the Code of Criminal Procedure, 1973 (Cr.P.C.) deals with abatement of appeals. Sub-section (1) to Section 394 provides that every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. Section 394(2) of the Code states that every other appeal under Chapter XXIX (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. The proviso to Section 394 states 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. 4. As noticed earlier, the present appeal is from a composite order of sentence combining substantive imprisonment with fine. By virtue of Subsection (2) to Section 394 Cr.P.C., the appeal on the death of the appellant/first accused will abate so far as the sentence of imprisonment is concerned. However, the provision also makes it clear that all appeals under Chapter XXIX except an appeal from a sentence of fine, shall abate on the death of the appellant. Thus the present appeal, an appeal against fine, cannot be treated as abated (See Ramesan (dead) through Legal representative v. State of Kerala, (2020) 3 SCC 45 ). 5. The case on hand is an appeal filed under Section 374(2) of the Code. Thus the present appeal, an appeal against fine, cannot be treated as abated (See Ramesan (dead) through Legal representative v. State of Kerala, (2020) 3 SCC 45 ). 5. The case on hand is an appeal filed under Section 374(2) of the Code. None of the near relatives of the appellant has filed any application seeking permission to prosecute the appeal. Therefore, the question is – what is the procedure to be followed in such cases. Reference has been made to the decision in Pazhani v. State of Kerala, 2017(1) KHC 173 , wherein a Full Bench of this Court has considered the question whether an appeal against conviction and sentence of imprisonment as well as fine on the date of the death of the appellant/accused, would abate if no relative of the appellant comes forward to continue to prosecute the appeal. It has been held that in the case of an appeal from a sentence of fine, there is no abatement of appeal on the death of the accused. Prosecution of the appeal can be continued by the near relatives of the deceased/appellant. If nobody comes forward to continue to prosecute the appeal, the appeal can be closed as abated. However, that abatement can be set aside at the instance of the near relatives of the deceased/appellant, though no specific provision has been made for the same in the court. The inherent powers of the court can be exercised in such a situation. There is no time limit fixed for filing an application by the near relatives to come on record. The Full Bench further held that since the proviso to sub-section (2) of Section 394 provides for a period of 30 days in filing an application for leave to continue the appeal, the period for filing an application to come on record in an appeal from a sentence or fine, can also be taken as 30 days. It has further been held that, if the near relatives do not file an application to come on record within a period of 30 days, the court shall consign the appeal to the record room. If the near relatives wish to come on record, they would be entitled to file an appeal to revive the appeal, in which case, the court would be justified in hearing the appeal on merits, provided, the application is filed without undue delay. If the near relatives wish to come on record, they would be entitled to file an appeal to revive the appeal, in which case, the court would be justified in hearing the appeal on merits, provided, the application is filed without undue delay. This decision has been followed by a learned single Judge in Oolli Baby v. State of Kerala, 2019 (3) KLT 706 . 6. Here, I refer to the decision of the Apex court in Ramesan (Supra) submitted by Sri. Vipin Narayan, the learned Senior Public Prosecutor. In the said case, the sole appellant convicted and sentenced to imprisonment for a period of two years and fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for six months for the offence punishable under Section 55(a) and (g) of the Abkari Act, died during the pendency of the appeal. This Court considered the appeal on merits referring to the principle under Section 394 Cr.P.C. and the conviction of the trial court was upheld. This Court was of the view that since the appellant died pending the appeal, the sentence of imprisonment had become unworkable. However, regarding imposition of fine, this Court found no reason to hold that the trial court had committed any mistake and hence the appeal was dismissed. The matter was taken up in appeal before the Apex Court by the legal representative of the deceased appellant. The Apex Court held that the appeal on the death of the appellant had not abated and that this Court was right in proceeding to consider the appeal on merits, as the appeal being against sentence of fine was required to be heard despite the death of the appellant - accused. 6.1. Though the view of this court was upheld by the Apex Court, it was noticed that after the death of the appellant, his legal representative had not been given an opportunity to prosecute the appeal against the sentence of fine. Hence the appeal was partly allowed and the judgment of this Court was set aside, the Crl.Appeal was revived to be heard afresh after giving an opportunity to the legal representative of the accused. Hence the appeal was partly allowed and the judgment of this Court was set aside, the Crl.Appeal was revived to be heard afresh after giving an opportunity to the legal representative of the accused. Therefore, the procedure to be followed in case of the death of the appellant – accused in an appeal against sentence of fine, has been laid down by the Apex Court in Ramesan (Supra), which I am bound to follow. 7. It is true that unlike in Ramesan (Supra), no legal representative has come on record to prosecute the present appeal. Here I refer to the decision in Bani Singh v. State of U.P., 1996 (2) KLT 424 , which lays down the procedure to be followed in the event of the appeal not being dismissed summarily under Section 384 Cr.P.C. Section 385(2) states that if the Appellate Court does not dismiss the appeal summarily, it 'shall' after issuing notice as required by sub-section (1), send for the record of the case and hear the parties. The proviso, however, posits that if the appeal is restricted to the extent or legality of the sentence, the Court need not call for the record. On a plain reading of the said provisions, it is clear that once the Appellate Court, on an examination of the grounds of appeal and the impugned judgment, decides to admit the appeal for hearing, it must send for the record and then decide the appeal finally, unless the appeal is restricted to the extent and legality of the sentence. Obviously, the requirement to send for the record is provided for to enable the Appellate Court to peruse the record before finally deciding the appeal. It is not an idle formality but casts an obligation on the court to decide the appeal only after it has perused the record. This is not to say that it cannot be waived even where the parties’ consent to its waiver. This becomes clear from the opening words of S. 386 which say that 'after perusing such record' the court may dispose of the appeal. However, this Section imposes a further requirement of hearing the appellant or his pleader, if he appears, and the public prosecutor, if he appears. This becomes clear from the opening words of S. 386 which say that 'after perusing such record' the court may dispose of the appeal. However, this Section imposes a further requirement of hearing the appellant or his pleader, if he appears, and the public prosecutor, if he appears. This is an extension of the requirement of S. 385 (1) which requires the Court to cause notice to issue as to the time and place of hearing of the appeal. Once such a notice is issued, the accused or his pleader, if he appears, must be heard. 7.1. The question then is, where the accused is the appellant and is represented by a Pleader, and the latter fails to appear when the appeal is called on for hearing, is the Appellate Court empowered to dispose of the appeal after perusing the record on its own or, whether it should adjourn the appeal to a future date and intimate the accused to be present on the next date of hearing? After referring to the decisions in Shyam Deo Pandey v. State of Bihar, AIR 1971 SC 1606 and Ram Naresh Yadav v. State of Bihar, AIR 1987 SC 1500 , it has been held - The plain language of S. 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it 'must' call for the record and S. 386 mandates that after the record is received, the appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of sub-sections 385 to 386 do not contemplate dismissal of the appeal for non-prosecution simplicitor. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by crosschecking, the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. The Apex Court disagreed with the suggestion in Ram Naresh Yadav (Supra) that if the appellant or his pleader is not present, the proper course would be to dismiss the appeal for non-prosecution. 7.2. Further it held that, law expects the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appeal on merits. S. 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. S. 386 then provides that the Appellate Court shall, after perusing the record, hear the appellant or his pleader, if he appears. Section 385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the appellant. So also S. 386 provides for a hearing to be given to the appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Ss. 385-386 of the Code. Law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. However, if the court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. But if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. It can dispose of the appeal after perusing the record and the judgment of the trial court. But if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. It went on to hold that, that the Division Bench which decided Ram Naresh Yadav's case did not apply the provisions of S. 385-386 of the Code correctly when it indicated that the Appellate Court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent. Such a view, it has been held, can bring about a stalemate situation because the appellant and his lawyer can remain absent with impunity, not once, but again and again till the Court issues a warrant for the appellant's presence. A complaint to the Bar Council against the lawyer for non-appearance would not result in the progress of the appeal. If another lawyer is appointed at State cost, he too would need the presence of the appellant for instructions and that would place the court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. It has been further held that even if a case is decided on merits in the absence of the appellant, the higher court can remedy the situation if there is a failure of justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted. [See also Panduranga v. State of Karnataka, 2013(1) KLT 874 (SC)]. The aforesaid decision makes it clear that once an appeal has been filed and the same has not been dismissed summarily, it becomes the duty of the court to decide the same on merits irrespective of the fact that the appellant/accused does not choose to prosecute it or is unable to prosecute it for one reason or the other. The aforesaid decision makes it clear that once an appeal has been filed and the same has not been dismissed summarily, it becomes the duty of the court to decide the same on merits irrespective of the fact that the appellant/accused does not choose to prosecute it or is unable to prosecute it for one reason or the other. This Court is bound to follow the dictum in Bani Singh and Ramesan (Supra) being the law of the land, under Article 141 of the Constitution of India. That being the position, I proceed to consider the appeal against the sentence of fine on merits after going through the records in the case. Before I do so, to enable the legal heirs, if any, to appear and prosecute the appeal, the appeal shall be listed to 14/10/2022 for hearing.