The High Court of Kerala dismissed the criminal appeal as abated due to the death of the appellant, except regarding the sentence of fine, relying on Section 394 CrPC and Supreme Court precedents regarding abatement upon the death of an appellant.
The appeal was dismissed as abated, except for the sentence of fine.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
MONDAY, THE 29TH DAY OF FEBRUARY 2016/10TH PHALGUNA, 1937
CRL.A.NO. 1946 OF 2005 ( )
AGAINST THE JUDGMENT IN SC NO.536/2004 OF ADDITIONAL SESSIONS COURT, FAST TRACK-I, PALAKKAD DATED 21-10-2005
APPELLANT(S)/ACCUSED.:
---------------------
RAMACHANDRAN, S/O.APPU, AGED 29 YEARS, KALLAMPARAMBU VEETTIL, PUTHUKODU, ALATHUR TALUK.
BY ADV. SRI.RAJESH S.KUTTY
RESPONDENT(S)/COMPLAINANT.:
STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, ALATHUR EXCISE RANGE (CRIME NO.15/00), PALAKKAD DISTRICT BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
NS
P.D. RAJAN, J.
Crl. Appeal No.1946 of 2005 ---------------------------------Dated this the 29th day of February, 2016
J U D G M E N T
This appeal is preferred by the accused against
the judgment of conviction and sentence in S.C. No.536 of 2004 of the Additional Sessions Judge (Fast Track -I), Palakkad. The accused was charge sheeted by the Additional Sessions Judge under Sec.55(a) of the Abkari Act. The charge against the accused is that, on 15.07.2000 at 6.00 p.m., the appellant was found carrying two litres of arrack in a can through the Puthukkode village Thachanadi-Manappadam road on the northern side of Harijan Kaitahari Naithu Vyavasaya Sahakarana Sangam, Puthukkode by the Excise Preventive Officer, Alathur. He was arrested and the contraband articles were seized. After completing investigation, Excise Inspector, Alathur laid charge before the Judicial First Class Magistrate Court, Alathur. From there, the case
was committed to Sessions Court, Palakkad.
Crl. Appeal No.1946 of 2005 2
Subsequently, it was made over to Additional Sessions Judge Fast Track I, Palakkad.
Crl. Appeal No.1946 of 2005 3
heirs or his relatives were also not impleaded to continue this appeal.
reads as follows:
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.
Srivastava v. State (Delhi Administration) [AIR 1979 Supreme Court 451] held as follows:
“The present case would, therefore, be governed by sub-sec (2) of S.394, Criminal P.C. It becomes clear from the proviso to S.394(2) Cr.P.C that where the appeal is against the conviction and sentence of imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives may, within the time prescribed
Crl. Appeal No.1946 of 2005 4
therein, apply to the appellate court before which the appeal is pending for leave to continue the appeal and if the leave is granted the appeal shall not abate. The appellant has preferred the appeal against his conviction and sentence of imprisonment as also sentence of fine. After his death his near relations as contemplated in the Explanations to sub-sec(2) of S.394, Cr.P.C applied by Criminal Miscellaneous Petition No.589 of 1978 to continue the appeal and this Court granted substitution of such near relations by its order dated 28th March 1978 and thereby granted leave to continue the appeal. Therefore, the near relations of the deceased can continue the appeal and even if the respondent State concedes that the sentence of fine be set aside yet the appeal would not abate because the appeal against conviction and sentence of imprisonment would not abate if leave is granted to the near relations of the deceased to continue the appeal. Such leave having been granted, the appeal would not abate. There is thus no merit in the preliminary objection and it must be negatived.”
Another decision in State of Maharashtra v.
Eknath Yeshwant Pagar and another [AIR 1981
Supreme Court 1571] the Honourable Supreme Court held as follows:
“It is stated by the counsel for the respondents that respondent No.1 is dead. According to the prosecution, respondent No.1 is the main accused and the second respondent was merely an abettor. Both were acquitted by
Crl. Appeal No.1946 of 2005 5
the High Court. Hence this appeal to this court. Since the appeal abates against the first respondent on account of his death and the second respondent has already been acquitted, appeal against the second respondent becomes infructuous.”
In the result, this appeal is dismissed as abated except the sentence of fine on the death of the appellant under Sec.394 of the Code of Criminal Procedure.
Sd/-
P.D. RAJAN, JUDGE
/ True Copy /
NS/01/03/2016
P.A. To Judge
2 issues framed by the court
Whether the criminal appeal abates on the death of the appellant when near relatives applied for leave to continue under Section 394 CrPC and such leave was already granted.
Whether the appeal against conviction survives abatement of the appeal against the sentence of fine.
Colour shows how this judgement treated each authority
Srivastava v. State (Delhi Administration)Applied¶34
Srivastava v. State (Delhi Administration) [AIR 1979 Supreme Court 451] · Who else cites this
State of Maharashtra v. Eknath Yeshwant Pagar and anotherReferred¶40
State of Maharashtra v. Eknath Yeshwant Pagar and another [AIR 1981 Supreme Court 1571] · Who else cites this
1 provisions across 1 enactments
RAMACHANDRAN
STATE OF KERALA
P.D. RAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
