Ramesan (Dead) through Lr. A Girija vs. The State of Kerala, Criminal Appeal No. 77 of 2020, at SLP (Crl.) Diary No. 40131/2017 – January 21, 2020.
The Supreme Court Bench comprising of Justice M. R. Shah and Justice Ashok Bhushan partly allowed the appeal by setting aside the judgment of the High Court of Kerala.
Facts:
A First Information Report was filed on one Ramesan under section 55 (a) and (g) of the Kerala Abkari Act. Charges were made under the same sections. Prosecution led oral and documentary evidence to prove the charge. Statement was also recorded under s. 313 of Cr.P.C.. who completely denied the incident and charge. The Additional Sessions Court convicted the first accused under section 55(a) for a period of 2 years imprisonment and one lakh rupees fine. The accused was also convicted under section 55(g) for a period of 2 years imprisonment and one lakh fine. In default of payment of the fine, the imprisonment period was reduced to 6 months each under the section 55(a) and (g). An appeal was filed in the High Court. The Appellant died after the filing of appeal on 21.12.2007. The Court upheld the conviction. The sentence of imprisonment is unworkable, the fine imposed by the lower court is also not under mistake should be paid. The court dismissed the appeal. This appeal was filed by Girija, legal heir of Ramesan.
Issue: whether the High Court has committed any error in abating the appeal in toto?
The counsel of the petitioner is that, the accused has died and therefore the High Court ought to have abated the entire appeal. This is because the punishment is a composition of both imprisonment and fine, and the appeal has to abate both. Therefore, this appeal is made stating that the High Court has committed error.
The counsel for the State contended that the composite sentence of imprisonment and fine is also a sentence of fine and the High Court has given proper punishment only.
The Court stated 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 conviction would be an appeal from a sentence of fine within the meaning of Section 431. The principle regarding non-abatement of the appeal from a sentence of fine as contained in Section 431 of Cr.P.C., 1898 as well as Section 394 of present Cr.P.C. is the same.
Section 394 deals with abatement of appeals and states that appeals can be abated on the death of the accused. An appeal from a sentence of fine is an exception. Both in the old and the new Code of Criminal Procedure, it is provided that appeal against a sentence of fine shall not abate.The fine is recoverable from the movable and immovable properties of the accused. The fine which remains unpaid may be levied from the accused at any time within 6 years from the passing of the sentence. The death of the offender does not discharge from the legal liability of the payment of fine under section 70 of Indian Penal Code. The application of section 394 of CrPC requires that the appeal must be directed to the sentence of fine and not that it must be directed to that sentence only.
In the present case, the High Court had overruled the primary objection made in the appeal. The principle according to section 394 or Cr. P. C. is applied. The Court thus gives an opportunity to the submissions of the legal heirs of the accused which was not given in the lower courts. Therefore, the appeal is partly allowed and the criminal appeal no. 254 of 2007 is revived before the High Court for the submissions of the legal heirs of the accused.
View/ Download the Judgment: Ramesan (Dead) through Lr. A Girija vs. The State of Kerala
– Vydurya Selvi Baskaran
Comments