Section 431Cr.P.C. is that every criminal appeal abates on the death of the accused “except an appeal from a sentence of fine” Apex court held that Section 394 Cr.P.C. deals with abatement of appeals. Section 394 is as follows:- “394. Abatement of appeals. (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant: Provided 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. Explanation.- In this section,” near relative” means a parent, spouse, lineal descendant, brother or sister.”The similar expression, which was used in Section 431, i.e., “except an appeal from the sentence of fine” has been used in Section 394 Cr.P.C. Thus, the appeal in the present case where accused was sentenced for imprisonment as well as for fine has to be treated as an appeal against fine and was not to abate – From the judgment of the High Court, it does not appear that after the death of the appellant-accused, his legal heirs were given opportunity to proceed with the appeal against the sentence of fine. The judgment of the High Court does not also mention that any counsel has appeared for the legal heirs. The High Court ought to have given an opportunity to legal heirs of the accused to make their submissions against the sentence of fine, which fine could have been very well recovered from the assets of the accused in the hands of the legal heirs.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 77 of 2020
(@ SLP (Crl.)…… Diary No.40131/2017)
RAMESAN (DEAD)
THROUGH LR. GIRIJA A …APPELLANT(S)
VERSUS
THE STATE OF KERALA …RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
This appeal has been filed against the judgment
of the High Court of Kerala dated 06.03.2014 by which
Criminal Appeal of the appellant has been dismissed.

  1. Brief facts of the case giving rise to this
    appeal are:-
    2.1 A First Information Report was registered
    against Ramesan under Sections 55 (a) and
    (g) of the Kerala Abkari Act [1 of 1077
    (ME)]. Charge under Sections 55(a) and
    (g) of the Kerala Abkari Act was framed.
    1
    Prosecution led oral and documentary
    evidence to prove the charge. Statement
    of Ramesan was also recorded under
    Section 313 of Cr.P.C., who completely
    denied the incident and charge.
    2.2 Additional Session Judge vide its order
    dated 20.12.2006 convicted the first
    accused Ramesan under Section 55(a) and
    imposed imprisonment for a period of two
    years and a fine of Rs. One Lakh. The
    accused was also convicted and sentenced
    under Section 55(g) of the same
    punishment of imprisonment of two years
    and fine of Rs. One Lakh. In default of
    payment of fine amount, accused was to
    undergo simple imprisonment for six
    months each under Sections 55(a) and (g)
    of the Abkari Act.
    2.3 An appeal was filed by the first accused
    Ramesan in the High Court being Criminal
    Appeal No. 254 of 2007 on 06.02.2007.
    2
    After filing of the appeal, the appellant
    Ramesan died on 21.12.2007. The High
    Court noticed the factum of death of the
    appellant on 21.12.2007, however,
    proceeded to decide the appeal on merits
    referring to the principle under Section
    394 Cr.P.C. The High Court after
    considering the evidence on record upheld
    the conviction. The High Court took the
    view that since the appellant died
    pending the appeal, the sentence of
    imprisonment has become unworkable,
    however, regarding the imposition of
    fine, there is no reason to hold that
    Court below committed any mistake and the
    appeal was consequently dismissed. This
    appeal has been filed by Girija A., the
    legal heir of Ramesan (deceased).
  2. Learned counsel for the appellant contended that
    in view of the death of the accused on 21.12.2007,
    the High Court ought to have abated the entire
    appeal. It is submitted that Section 394 of Cr.P.C.
    3
    saves the appeal, which arises against sentence of
    fine only. When there was composite sentence of
    imprisonment as well as fine, the appeal has to abate
    both against the sentence of imprisonment as well as
    fine. It is contended that High Court committed
    error in proceeding to decide the appeal on merits.
    High Court ought to have abated the appeal in toto.
  3. Learned counsel for the State refuting the
    submission contends that there being sentence of fine
    also, the appeal has rightly been decided on merits
    by the High Court. The sentence of fine or composite
    sentence of imprisonment and fine, is also a sentence
    of fine.
  4. We have considered the submissions of the learned
    counsel for the parties and have perused the records.
  5. The only question to be decided in this appeal is
    as to whether in the facts of the present case, the
    accused who was sentenced for imprisonment as well as
    for fine, the High Court committed an error in not
    abating the appeal in toto.
    4
  6. Section 394 Cr.P.C. deals with abatement of
    appeals. Section 394 is as follows:-
    “394. Abatement of appeals.
    (1) Every appeal under section 377 or
    section 378 shall finally abate on the
    death of the accused.
    (2) Every other appeal under this Chapter
    (except an appeal from a sentence of fine)
    shall finally abate on the death of the
    appellant:
    Provided 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.
    Explanation.- In this section,” near
    relative” means a parent, spouse, lineal
    descendant, brother or sister.”
  7. Even in Cr.P.C., 1898, there was a provision
    pertaining to abatement of the appeal, which was to
    the following effect:-
    “431. Every appeal under Section 411-A,
    sub-section (2), or Section 417 shall
    finally abate on the death of the accused,
    and every other appeal under this Chapter
    (except an appeal from a sentence of fine)
    shall finally abate on the death of the
    appellant.”
    5
  8. Both under the Old Code as well as under the
    present Code of Criminal Procedure, it is provided
    that the appeal against a sentence of fine shall not
    abate.
  9. The fine as per the provisions of Code of
    Criminal Procedure is recoverable from movable and
    immovable properties of the accused, Section 421
    Cr.P.C. provided as follows:-
    “421. Warrant for levy of fine. –(1) When
    an offender has been sentenced to pay a
    fine, the Court passing the sentence may
    take action for the recovery of the fine
    in either or both of the following ways,
    that is to say, it may-
    (a) issue a warrant for the levy of
    the amount by attachment and sale
    of any movable property belonging
    to the offender;
    (b) issue a warrant to the Collector
    of the district, authorising him
    to realise the amount as arrears
    of land revenue from the movable
    or immovable property, or both, of
    the defaulter:
    Provided that, if the sentence directs
    that in default of payment of the fine,
    the offender shall be imprisoned, and if
    such offender has undergone the whole of
    such imprisonment in default, no Court
    shall issue such warrant unless, for
    6
    special reasons to be recorded in writing,
    it considers it necessary so to do, or
    unless it has made an order for the
    payment of expenses or compensation out of
    the fine under section 357.
    (2) The State Government may make
    rules regulating the manner in which
    warrants under clause (a) of sub- section
    (1) are to be executed, and for the
    summary determination of any claims made
    by any person other than the offender in
    respect of any property attached in
    execution of such warrant.
    (3) Where the Court issues a warrant
    to the Collector under clause (b) of subsection (1), the Collector shall realise
    the amount in accordance with the law
    relating to recovery of arrears of land
    revenue, as if such warrant were a
    certificate issued under such law:
    Provided that no such warrant shall be
    executed by the arrest or detention in
    prison of the offender.”
  10. Section 70 of Indian Penal Code provides that any
    part of fine which remains unpaid may be levied at
    any time within six years after the passing of the
    sentence. The provision further provides that the
    death of offender does not discharge from the
    liability any property which would, after his death,
    7
    be legally liable for his debts. Section 70 of the
    Indian Penal Code is as follows:-
    “70. Fine leviable within six years, or
    during imprisonment—Death not to discharge
    property from liability.—The fine, or any
    part thereof which remains unpaid, may be
    levied at any time within six years after
    the passing of the sentence, and if, under
    the sentence, the offender be liable to
    imprisonment for a longer period than six
    years, then at any time previous to the
    expiration of that period; and the death
    of the offender does not discharge from
    the liability any property which would,
    after his death, be legally liable for his
    debts.”
  11. This Court had occasion to consider the
    provisions of Sections 431 and 439 of Cr.P.C. 1898 in
    Pranab Kumar Mitra Vs. State of West Bengal and
    Another, AIR 1959 SC 144. Section 439 provides for
    revisional jurisdiction of the High Court. One of
    the issues was as to whether Section 431 applies to
    revisional application filed in the High Court. In
    paragraph 7, this Court laid down following:-
    “7. ………………………In view of the fact that
    even in the absence of any statutory
    provisions, we have held, in agreement
    with the decision aforesaid of the Bombay
    High Court, that the High Court has the
    power to determine the case even after the
    death of the convicted person, if there
    was a sentence of fine also imposed on
    him, because that sentence affects the
    8
    property of the deceased in the hands of
    his legal representative,………………………”
  12. This Court in Bondada Gajapathi Rao Vs. State of
    Andhra Pradesh, AIR 1964 SC 1645 had occasion to
    consider Section 431 Cr.P.C. A special leave petition
    was filed in this Court, the accused died during
    pendency of special leave petition. This Court again
    reiterated the principle on which hearing of a
    proceeding may be continued after the death of an
    accused. ;In paragraph 3 of the judgment, following
    was laid down:-
    “3. The principle on which the hearing of
    a proceeding may be continued after the
    death of an accused would appear to be the
    effect of the sentence on his property in
    the hands of his legal representatives. If
    the sentence affects that property, the
    legal representatives can be said to be
    interested in the proceeding and allowed
    to continue it.”
  13. This Court had occasion to consider the case of a
    composite sentence of imprisonment as well as fine in
    Harnam Singh Vs. The State of Himachal Pradesh,
    (1975) 3 SCC 343. In the above case, the accused was
    convicted under Sections 5(1)(d) and 5(2) of
    Prevention of Corruption Act, 1947 as well as under
    9
    Section 161 Indian Penal Code and he was sentenced
    for rigorous imprisonment of two years and to a fine
    of Rs.300. Contention was raised before this Court
    that since the deceased was not sentenced to pay a
    fine only but was punished with a composite sentence
    of imprisonment and fine, the appeal would abate as
    regards the sentence of fine also. Such contention
    was noted in paragraph 4 of the judgment, which is to
    the following effect:-
    “4. Learned Counsel for the State of
    Himachal Pradesh, who are respondents to
    the appeal, has raised a preliminary
    objection to the right of the appellant’s
    widow to prosecute the appeal. He contends
    that the substantive sentence of
    imprisonment imposed on the appellant
    Harnam Singh came to an end with his death
    and therefore the appeal in regard to that
    sentence stands abated. As regards the
    sentence of fine, it is contended that
    since the deceased appellant was not
    sentenced to pay a fine only but was
    punished with a composite sentence of
    imprisonment and fine, the appeal would
    abate as regards the sentence of fine
    also. According to the learned Counsel
    this Court may, at the highest, set aside
    the sentence of fine if it finds that the
    appellant need not have been asked to pay
    a fine. But the order of conviction and
    the substantive sentence must remain and
    the legality or propriety of that order
    cannot any longer be questioned in view of
    the death of the appellant.”
    10
  14. Rejecting the above submission, this Court laid
    down 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.
    In paragraph 10, following was laid down:-
    “10. The narrow question which then
    requires to be considered is whether an
    appeal from a composite order of sentence
    combining the substantive imprisonment
    with fine is for the purposes of Section
    431 not an appeal from a sentence of fine.
    It is true that an appeal from a composite
    order of sentence is ordinarily directed
    against both the substantive imprisonment
    and the fine. But, such an appeal does not
    for that reason cease to be an appeal from
    a sentence of fine. It is something more
    not less than an appeal from a sentence of
    fine only and it is significant that the
    parenthetical clause of Section 431 does
    not contain the word “only”. To limit the
    operation of the exception contained in
    that clause so as to take away from its
    purview appeals directed both against
    imprisonment and fine is to read into the
    clause the word “only” which is not there
    and which, by no technique of
    interpretation may be read there. The
    plain meaning of Section 431 is that every
    criminal appeal abates on the death of the
    accused “except an appeal from a sentence
    of fine”. The section for its application
    requires that the appeal must be directed
    to the sentence of fine and not that it
    must be directed to that sentence only. If
    by the judgment under appeal a sentence of
    11
    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. 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.”
  15. The above judgment categorically laid down that
    even if sentence of fine is imposed alongwith the
    sentence of imprisonment under Section 431, such
    appeal shall not abate. The similar expression,
    which was used in Section 431, i.e., “except an
    appeal from the sentence of fine” has been used in
    Section 394 Cr.P.C. Thus, the appeal in the present
    case where accused was sentenced for imprisonment as
    well as for fine has to be treated as an appeal
    against fine and was not to abate and High Court did
    not commit any error in deciding the appeal on
    merits.
  16. This Court had occasion to consider Section 394
    Cr.P.C. in Lakshmi Shanker Srivastava Vs. State
    (Delhi Administration), (1979) 1 SCC 229. In the
    12
    above case, the accused was sentenced to suffer
    rigorous imprisonment for 18 months on each count and
    a fine of Rs.200. The accused had died during
    pendency of the appeal in this Court and argument was
    raised that in view of the above, the appeal abates
    and cannot be proceeded with. Such argument was
    noticed in paragraph 4, which is to the following
    effect:-
    “4. Mr H.R. Khanna, learned Counsel who
    appeared for the respondent raised a
    preliminary objection. It was urged that
    the appellant died during the pendency of
    this appeal and, therefore, the appeal
    abates and cannot be proceeded with.
    Simultaneously it was urged that if the
    appeal were not to abate on the only
    ground that the appellant was also
    sentenced to pay a fine of Rs 200 and,
    therefore, it may be said that right to
    property of the legal representatives may
    be adversely affected and, therefore, they
    would be entitled to continue the appeal,
    the respondent State is prepared to
    concede that the sentence of fine may be
    set aside.”
  17. In the above case, a leave was obtained under the
    proviso to Section 394(2) by legal heirs to continue
    the appeal. This Court had overruled the primary
    objection that appeal should abate although relying
    on the proviso to Section 394(2). The principle
    13
    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. A similar legislative scheme has been
    contained, which was occurring in Section 431
    Cr.P.C., 1898, hence, judgment of this Court
    regarding interpretation of Section 431, Cr.P.C. as
    has been done by this Court in Bondada Gajapathi Rao
    (supra) and Harnam Singh (supra) shall squarely apply
    to the interpretation of Section 394 Cr.P.C.
  18. We, thus, conclude that the appeal filed by
    accused Ramesan in the High Court was not to abate on
    death of the accused. The High Court rightly did not
    direct for abatement of appeal and proceeded to
    consider the appeal on merits. The appeal before the
    High Court being against sentence of fine was
    required to be heard against the sentence of fine
    despite death of accused-appellant.
  19. Although, we have upheld the view of the High
    Court that appeal filed by the accused was not to
    abate and was required to be heard and decided on
    14
    merits but there is one aspect of hearing of the
    appeal before the High Court, which need to be noted.
    From the judgment of the High Court, it does not
    appear that after the death of the appellant-accused,
    his legal heirs were given opportunity to proceed
    with the appeal against the sentence of fine. The
    judgment of the High Court does not also mention that
    any counsel has appeared for the legal heirs. The
    High Court ought to have given an opportunity to
    legal heirs of the accused to make their submissions
    against the sentence of fine, which fine could have
    been very well recovered from the assets of the
    accused in the hands of the legal heirs.
  20. In above view of the matter, we are of the view
    that ends of justice be served in reviving the
    Criminal Appeal No. 254 of 2007 before the High Court
    to give an opportunity to the legal heirs of the
    accused to make their submissions against the
    sentence of fine.
  21. In result, the appeal is partly allowed. The
    judgment of the High Court dated 06.03.2014 is set
    15
    aside and Criminal Appeal No.254 of 2007 is revived
    before the High Court to be heard afresh after giving
    an opportunity to the legal heirs of the accused.
    ………………….J.
    ( ASHOK BHUSHAN )
    ………………….J.
    ( M.R. Shah )
    New Delhi,
    January 21, 2020.
    16