When there is composite sentence of imprisonment and fine, appeal is not abated on death of accused

Shubhani Mittal | Vivekananda Global University | 27th January 2020

RAMESAN (DEAD) THROUGH LR. GIRIJA A vs. STATE OF KERALA CRIMINAL APPEAL NO. 77 of 2020

Facts –

In this case, FIR was registered against Ramesan and charges u/s Sections 55 (a) and (g) of the Kerala Abkari Act was framed.Additional session judge convicted the accused under Section 55(a) and imposed imprisonment for a period of two years and a fine of Rs. One Lakh. 

An appeal was filed by the accused Ramesan in the High Court but eventually he died after few months. The High Court noticed the factum of death of the appellant on, 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.

Learned counsel for the appellant contended that in view of the death of the accused, the High Court ought to have abated the entire appeal. 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. High Court committed error in proceeding to decide the appeal on merits. 

Judgement –

 The court referred to some earlier judgments of the Apex court, in context of Section 431 of the 1898 Code and observed that even if sentence of fine is imposed along with 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 court held that 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.The bench, however, partly allowed the appeal, observing that 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.