Final Order 13

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CA 15/2022 to 33/2022
MAHAVIR PRASAD MISHRA
Vs.
STATE AND ANR.
04.09.2023
Present: None for appellant.
Sh. Ghanshyam, Ld. Substitute Addl. PP for the
State.
Sh. Akshit Mohan ld. counsel for respondent no.
2 through VC.
As per record, the appellant is not appearing in the
present matter for the last 6 dates. As per order dated
21.02.2023, the appellant is stated to have expired.
Till date, none of the LRs of deceased appellant have
moved any application seeking their impleadment in the
present appeal which is against the judgment and order on
sentence dated 22.12.2021 under S. 138 NI Act.
The effect of the death of an appellant in a criminal
matter has been considered by the Hon’ble Supreme Court
of India in Harnam Singh v. State of H.P., (1975) 3
SCC 343 : 1974 SCC (Cri) 951 at page 345 and the
relevant portion is quoted hereinbelow:
6. These contentions require an
examination of Section 431 of the Code
which reads thus:
“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
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fine) shall finally abate on
the death of the appellant.”
...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 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.
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11. It is difficult to discern any
principle behind the contrary view.
The reason of the rule contained in
the exception is that a sentence of
fine operates directly against the
estate of the deceased and
therefore the legal representatives
are entitled to clear the estate from
that liability. Whether or not the
sentence of fine is combined with any
other sentence can make no difference to
the application of that principle.
In the present case, it is clear that by operation of
Section 394 Cr.PC, the appeal in so far as it relates to
imprisonment abates qua appellant.
As far as fine is concerned, the appeal would be
covered by the exception in Section 394 (2) Cr.PC.
However, the said exception is provided only so that legal
representatives of the accused can question the fine, as it
affects the estate of the deceased.
In these circumstances, the appeal has been
rendered infructuous.
Appeal disposed of accordingly. TCR be
sent back. Appeal file be consigned to Record Room.
(Kiran Gupta)
ASJ-04/NDD/PHC/ND
04.09.2023
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