Untimely Demise Of Husband Sufficient Explanation To Condone Delay In Seeking Leave To Continue Appeal On His Behalf: Kerala High Court

Section 394 of CrPC provides for abatement of criminal appeal on the appellant's death. As per the provision, near relatives can apply for leave to continue the appeal within 30 days of the death of the appellant against the sentence of death or imprisonment.

Here, the wife filed an application seeking leave to continue appeal after 50 days of her husband's death.

Justice K.Babu condoned the delay and observed thus:

“The learned counsel for the petitioner explained the reasons for the delay as follows:-

(1) The petitioner had no knowledge regarding the pendency of the appeal.

(2) She could recover from the shock of the untimely death of her husband only late.

This is the case where a young lady of 43 years, after the untimely death of her husband, could only file the application seeking leave after a delay of 20 days. The reason for the delay is self- explanatory.”

The accused in this case was convicted by the Trial Court under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment till rising of the Court and to pay a fine of rupees ten lakhs. The appellant-accused challenged the judgment before Sessions Court, and he passed away during its pendency.

The Sessions Court dismissed the wife's petition seeking leave to continue the appeal stating that the appeal had abated with the death of the accused. The Sessions Judge also noted that no explanation was provided for condoning delay.

The petitioner contended appeal would not be abated and that Sessions Court was bound to continue the appeal against the sentence of fine imposed upon the accused even in the absence of near relatives.

The Public Prosecutor also submitted appeal cannot be abated when the challenge was against a composite sentence of fine and imprisonment.

The Court noted that the Sessions Court wrongly treated the sentence of fine as payment of compensation. The Court stated that a sentence of fine is a punishment under Section 53 of IPC. It said, “Undoubtedly, the sentence imposed in the present case is a composite sentence of fine and imprisonment.”

Relying upon Ramesan (dead) Through Lr.Girija A. v. State of Kerala, the Court stated that an appeal against composite sentence of imprisonment and fine will not abate on the death of the appellant during the pendency of the appeal.

“Therefore, the appeal shall not abate on the death of the appellant and the court is bound to decide the appeal on merits after giving sufficient opportunity to the near relatives of the appellant to proceed with the appeal against the sentence of fine”, stated the Court.

As such, the Court observed that the petitioner has provided sufficient explanation for condoning the delay. It thus restored the criminal appeal and directed the Sessions Court to proceed with the appeal as per law.

Counsel for Petitioner: Advocates S R Premchand, A A Dilshah, M Veena

Counsel for Respondents: Advocates George Mathew Karamayil, Sunil Kumar A G, Mathew K T, George K V, Stephy K Regi, Medha B.S., Senior Public Prosecutor C.N.Prabhakaran

Citation: 2024 LiveLaw (Ker) 499

Case Title: Dhanya Sajith v M R Binoy Mathew

Case Number: OP(CRL.) NO. 379 OF 2024

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