Abatement Of Criminal Appeals

Every appeal by the State or Central Government under Section 377 (against inadequacy of the sentence) or under Section 378 (against acquittal) shall finally abate on the death of the accused. In such appeals, the accused will invariably be the respondent.

2. An appeal under Section 378 (4) Cr.P.C (Section 417 (3) of old Cr.P.C) against acquittal abates only on the death of the accused and not on the death of the appellant.

(Once such an appeal has been entertained by the High Court, the inability of the appellant to prosecute the appeal on account of his death during the pendency of the appeal, does not relieve the appellate Court of its duty to dispose of the appeal on merits. (vide para 8 of Khedu Mohton  v. State of Bihar – AIR 1971 SC 66)    

3. “Every other appeal under this Chapter” within the meaning of Section 394 (2) may be an appeal -


4. by a person under Section 373 Cr.P.C against security proceedings or


5. by an accused who has been convicted and sentenced under Section 374 Cr.P.C. or

• by a victim under the proviso to Section 372 Cr.P.C.   

Every appeal against conviction under Section 374 Cr.P.C  abates on the death of the appellant / accused except an appeal from a sentence of fine (vide Harnam Singh v. State of H.P – (1975) 3 SCC 343 = AIR 1975 SC 236). Since the victim’s appeal under the proviso to Section 372 Cr.P.C is a new species of appeal introduced only with effect from 31-12-2009, Section 394 (2) Cr.P.C  cannot be literally applied to such victim’s appeal. This is because of the reason that if Section 394 (2) were to be applied to a victim’s appeal it can result in the miscarriage of justice. For example, in a victim’s appeal against an order of acquittal, if the appellant / victim were to die during the pendency of the appeal, then going by the apparent tenor of Section 394 (2) Cr.P.C such an appeal will abate notwithstanding the fact that the respondent / accused is very much alive. That would be a fit case where either the Legal Representatives (‘L.Rs’ for short) of the deceased appellant are permitted to continue the appeal or the appellate Court itself disposes of the appeal on merits ensuring that there is no failure of justice.

APPEAL FROM A SENTENCE OF FINE ONLY

4. An appeal from a sentence of fine does not abate. Here, the Legal Representatives (L.Rs) and not the “near relatives” can come on record within a reasonable time. This is a judge-made right of the L.Rs since there is no such enabling provision to the said effect in the Cr.P.C. (vide Bondada Gajapathi Rao v. State of A.P – AIR 1964 SC 1645 – 3 Judges; Harnam Singh v. State of H.P – (1975) 3 SCC 343 = AIR 1975 SC 236; Pazhani v. State of Kerala – 2017 (1) KLT 341 (FB). What would be a reasonable time ? As held in para 20 of the Full Bench decision of the Kerala High Court in Pazhani v. State of Kerala – 2017 (1) KLT 341 the 30 days’ period fixed under the proviso to Section 394 (2) can be treated as the reasonable time within which the L.Rs can continue the appeal against a sentence of fine. But the Full Bench has gone further to hold that once the appellant / accused in an appeal against a sentence of fine, dies, the appeal cannot be disposed of on the merits unless the “near relatives” seek leave to continue the appeal.  In para 20 of the said decision the Full bench has held that if the near relatives do not seek leave to continue the appeal within 30 days, the appeal is to be consigned to the record room so as to enable the near relatives to approach the Court and revive the appeal. It is respectfully submitted that first of all, in an appeal against a sentence of fine there is no question of “near relatives” seeking leave to continue the appeal. It is the L.Rs of the deceased appellant who can continue the appeal and help the Court to dispose of the appeal on merits. This right of the L.Rs is as per the Judge-made law and not as per the proviso to Section 394 (2) Cr.P.C which is applicable only to appeals against sentence of death or imprisonment and is not applicable to appeals against sentence of fine. The aforesaid right of the L.Rs was recognised in Bondada Gajapathi Rao v. State of A.P – AIR 1964 SC 1645 – 3 Judges and Harnam Singh v. State of H.P – AIR 1975 SC 236. In my humble view, if the L.Rs of the deceased appellant do not seek to continue the appeal against a sentence of fine within 30 days of the death of the appellant / accused, the appellate Court will have to dispose of the appeal on merits. That Court need not be concerned about the problem of disposing of the appeal with the dead appellant on the party array in view of the observations in paragraph 8 of Khedu Mohton  v. State of Bihar – AIR 1971 SC 66 which are as follows :-

“Once an appeal against an acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact the appellant either does not choose to prosecute it or is unable to prosecute it for one reason or the other.”

Khedu Mohton was an appeal by the complainant against an order of acquittal passed in a case instituted on a private complaint and during the pendency of the appeal, the appellant/complainant had died.  The position is the same in criminal revisions also (vide State of Kerala v. Kamala Devi – AIR 1962 SC 1530 – 3 Judges). The aforementioned view of the Full Bench, therefore, does not appear to be legally sound. If the L.Rs of the deceased appellant in an appeal against a sentence of fine, do not seek to continue the appeal within 30 days of the death of the appellant, the appeal will have to be disposed of on merits. The pre-conditions necessary for the appellate Court to exercise its appellate powers in such appeals have been stated by the Apex Court in paragraph 10 of Harnam Singh v. State of H.P – AIR 1975 SC 236, as follows:-

 “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”.

5. The principle on which hearing of a proceeding may be continued after the death of the accused would appear to be the effect of the sentence on his property in the hands of his L.Rs. If the sentence affects that property, the L.Rs can be said to be interested in the proceedings and can be allowed to continue the proceedings. A sentence of fine, undoubtedly, affects the property (vide Bondada Gajapathi Rao v. State of A.P – AIR 1964 SC 1645 – 3 Judges). Here also it was a special leave to appeal before the Supreme Court. The impugned sentence was imprisonment for life. On the death of the appellant / accused, the appeal before the Supreme Court had abated by the force of Section 394 (1) Cr.P.C (Section 431 of old Code). The question of continuing the appeal against a sentence of fine, did not really arise for consideration in that case.

Under Section 70 of the India Penal Code, death of the offender does not discharge him from liability of any property which would after his death, be legally liable for his debts and the fine ordered can be recovered within 6 years of the order passing the sentence and if the offender is undergoing a sentence of imprisonment for a period longer than 6 years, the fine is to be levied before the expiry of the period of imprisonment.

Thus, in the absence of the L.Rs seeking leave to prosecute the appeal within 30 days of the death of the appellant in an appeal against a sentence of fine, the appellate Court will have to dispose of the appeal on the merits, instead of consigning the appeal to the records room and waiting for the L.Rs ad infinitum to come up with a petition to prosecute the appeal.            

COMPOSITE SENTENCE OF IMPRISONMENT AND FINE

6. An appeal from a composite sentence of imprisonment and fine can be treated as an appeal from a sentence of fine and also an appeal from a sentence of imprisonment. Such an appeal, so far as it relates to the sentence of fine, will not abate with the death of the appellant since fine constitutes a liability on the estate of the deceased. The L.Rs on whom the estate devolves, are entitled to make an attempt to ward off that liability by seeking leave to prosecute the appeal within a reasonable time. (vide Harnam Singh v. State of H.P – (1975) 3 SCC 343 = AIR 1975 SC 236). But the appeal, so far as it relates to the sentence of imprisonment, will be subject to the proviso to Section 394 (2) Cr.P.C .  If the “near relatives” do not seek to continue the appeal within 30 days of the death of the appellant / accused, the appeal so far as it relates to the sentence of imprisonment will abate. Since the proviso to Section 394 (2) does not provide for enlargement of the period of 30 days, the appellate Court is not obliged to entertain belated applications by “near relatives”. In Harnam Singh’s case disposed of by the Supreme Court, the impugned sentence imposed was imprisonment for life and fine. It was Section 431 of the Code of Criminal Procedure, 1898 (the old Code) that was applicable to that case. The proviso to Section 394 (2) Cr.P.C (1973 Code) was not there in Section 431 of the 1898 Code. On the death of the accused / appellant, the sentence of imprisonment in that case, abated. But regarding the sentence of fine, the appeal before the Supreme Court was permitted to be continued by the L.Rs (not “near relatives”).

In State of A.P   v.  S. Narasimha Kumar and Others – (2006) 5 SCC 683 = AIR 2006 SC 2924 it was an appeal filed by the State against the acquittal of the accused by the High Court for offences punishable under Sections 381, 440 and 120 B IPC. Pending appeal before the Supreme Court the respondent / accused died on               15-01-2004. This was a simple case falling under Section 394(1) Cr.P.C and on the death of the respondent accused the appeal against acquittal filed by the State, finally abated. It was unnecessary for the Supreme Court to consider the impact of sub-section (2) of Section 394 or the proviso thereto. In Shri Shankar Prasad Ghosh (dead) v. State of Bihar and Another – (2008) 11 SCC 373 = AIR 2009 SC  Supp 447 the appeal before the Supreme Court was filed by the accused against the conviction and sentence of imprisonment and fine concurrently recorded by the Special Judge (CBI) and the High Court .  Pending appeal, the appellant / accused died on 15-05-2000. Five years, thereafter, the legal heirs of the deceased appellant filed applications for continuing the appeal. Without deciding the question as to whether there was any scope for condonation of the delay, the Supreme Court held that no explanation had been offered for the delayed presentation of the petition and accordingly dismissed the appeal as abated.

Thus, an appeal against a conviction and sentence of death or of imprisonment shall not abate if the appellant / accused dies during the pendency of the appeal and any of his “near relatives”, within 30 days of the death of the appellant, applies for leave to continue the appeal and leave is granted  by the appellate Court.