INTRODUCTION
It is trite law that while criminal proceedings operate in rem, the consequence of such proceedings (viz. imprisonment) impacts the liberties of individual person(s). It is equally well settled that legal heirs of an accused/ convict cannot be made to serve imprisonment on the death of the accused/ convict. This begs the question whether the demise of the individual also sounds the death knell on the connected criminal proceedings against him. In the present article, we explore whether the criminal appellate/ revisional proceedings would abate ipso facto on the death of the accused/ convict.
ABATEMENT OF APPEALS: SCHEME UNDER THE CrPC, 1973
Section 394 of the Code of Criminal Procedure, 1973 (“CrPC”) provides that;
- Appeals under Section 377 and 378 (i.e. appeals by State against inadequacy of sentence and acquittal, respectively) will abate on death of accused/ convict; and
- Every other appeal under Chapter XXIX of the CrPC will abate on the death of the accused/ appellant.
There are two exceptions to this, provided under Section 394(2) of the CrPC, viz.
- An appeal from a sentence of fine will not abate on the death of the appellant; and
- ‘Near relatives’ (defined as parent, spouse, lineal descendant, brother or sister) are conferred with the right to petition the court within 30 days of the death of the appellant in an appeal against a sentence of death or imprisonment. If liberty is granted, the appeal will not abate.
WHOSE APPEAL IS IT ANYWAY? CONTINUATION OF APPEAL ON DEATH OF APPELLANT
The abatement of the appeal, and the right of the legal heirs to continue/ contest the appeal would depend on the nature of the sentence passed:
- Appeal in respect of sentence of fine
If the sentence only imposes a fine, the legal heirs will have a right to continue the appeal preferred by the convict, even after his death. [1]The rationale behind this is succinctly captured by the Hon’ble Supreme Court in Bondada Gajapathi Rao Vs. State of Andhra Pradesh, [2], as follows :
“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.”
Thus, an appeal in respect of the sentence of fine would not abate ipso facto on the death of the appellant, and could be heard, even thereafter. However, if the legal heirs do not wish to contest the appeal, then the fine can be recovered from the estate of the deceased.
An argument is often made that an appeal in respect of a sentence of imprisonment and fine, being a composite sentence, ought to abate against both sentences, on the death of the accused.
- An appeal in respect of sentence of imprisonment and fine
An argument is often made that an appeal in respect of a sentence of imprisonment and fine, being a composite sentence, ought to abate against both sentences, on the death of the accused.
However, this has been negatived by the Hon’ble Supreme Court in Harnam Singh Vs. The State of Himachal Pradesh,[3] as follows:
“10. … 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…”
Thus, even in composite sentence of fine and imprisonment, the appeal would only abate in respect of sentence of imprisonment on the death of the accused – not against the sentence of fine.
- An appeal in respect of sentence of death or imprisonment: restoring dignity, in death?
Normally, the appeal against a sentence of imprisonment would abate on the death of the accused/ appellant, given that the sentence of imprisonment affects the individual, and on his death, would become infructuous.
However, as noted above, the proviso to Section 394(2) of the CrPC makes an exception and grants liberty to “near relatives”, to petition the court for leave to continue the appeal.
The legislature has given this liberty so that ‘near relatives’ can pursue the appeal and convince the court that the deceased appellant was not guilty and to prove his/ her innocence. Thus, in essence, it is a chance to remove the blot of conviction and restore the good name and dignity of the appellant, even in death.
In fact, the Hon’ble Supreme Court in Sonelal Tiwari v State of Madhya Pradesh (“Sonelal Tiwari”) [4]was faced with exactly this scenario:
“1. On the death of the sole appellant normally this appeal would have got abated. But appellant’s widow Smt. Krishna Bai applied for resuscitation of the appeal presumably because she not inclined to bear the stigma fastened on her late husband with the finding of the High Court that he was guilty of corruption charge..”
In Sonelal Tiwari (Supra), the Hon’ble Supreme Court granted liberty to the widow of the deceased appellant to continue the appeal, after condoning the delay for moving the application under Section 394(2) CrPC. The deceased appellant had been sentenced to imprisonment and fined for offences under the Prevention of Corruption Act. While the widow of the deceased appellant was granted liberty to contest the appeal, on merits however, the Hon’ble Court did not disturb the sentence, which had been imposed by the judgement under appeal.
In S.V. Kameswar Rao and Anr. v. State (A.C.B. Police, Karnool District, Andhra Pradesh)[5],the Hon’ble Supreme Court declined to grant liberty to continue the appeal as the application under Section 394(2) had been preferred nearly 10 years after the death of the accused/ appellant.
Similarly, in Shri Shankar Prasad Ghosh (Dead) v The State of Bihar and Anr[6], while noting that ‘near relatives’ can seek continuation of appeals even after the death of the appellant, the Hon’ble Supreme Court declined to grant liberty as the application under Section 394(2) had been preferred after an unexplained delay of five years.
Thus, ‘near relatives’ cannot continue the appeal on the death of the accused as a matter of right, but can only move an application under Section 394(2) to seek liberty to continue the appeal. While a 30-day period is prescribed to move such applications, the court has the power to condone a delay. However, such delay must be reasonable and explained, or the court may dismiss the application on the ground of delay alone.
ABATEMENT OF CRIMINAL REVISIONAL PROCEEDINGS
The jurisprudence around abatement of criminal appeals on the death of the accused is largely settled, in no small part due to a clear legislative provision i.e. Section 394 of the CrPC.
However, the issue is a bit more uncertain in matters of criminal revisions. Even more so, as there is no analogous provision to Section 394 of the CrPC, which addresses the fate of criminal revisions on the death of the accused. Be that as it may, judicial precedents provide illumination on this.
In P.R. Anjanappa and Another v Yurej Agencies Private Limited and Others[7];the Hon’ble Karnataka High Court held that principles of Section 394 CrPC would also apply for revision petitions. Thus, in the revision petition preferred against a sentence of fine and imprisonment under the provisions of the Negotiable Instruments Act, 1881, it was held that the revision would abate as against the sentence of imprisonment, on the death of the convict/ petitioner, but not in respect of the fine.
In a revision petition against the acquittal of the accused, the Hon’ble Madras High Court[8] held the petition to have abated on the death of the accused/ respondent.
Similarly, in another revision petition against an order of acquittal of three accused persons, the Hon’ble High Court of Gujarat[9] held that the revision petition abated as against accused no.3 (Respondent No.4 therein) on his death, but could continue against the other accused/ Respondents.
Another order of abatement was passed by the Hon’ble Kerala High Court[10] in a revision petition preferred against discharge of an accused – owing to the death of the accused/ Respondent during the pendency of the revision petition.
The Hon’ble Bombay High Court (Aurangabad Bench)[11] ordered that a criminal revision petition would abate as the Petitioner and the Respondent/ accused had both passed away during the pendency of the Petition. Reliance was placed on Section 394 of the CrPC and it was held that the principles therein would also apply to criminal revisions.
Thus, the abatement of criminal revisions on death of the Petitioner and/ or the accused Respondent is largely in keeping with jurisprudence of Section 394 CrPC viz. abatement of appeal on the death of the appellant. It is hence clear that the courts also rely on the principles of Section 394 while considering abatement of criminal revision petitions on the death of the accused.
CONCLUSION
Death and taxes are two certainties in life, and, unsurprisingly death of the accused/ convict almost certainly brings an end to most criminal proceedings. However, this too has exceptions. In the matter of appeals, these are set out in Section 394 of the CrPC. While there is no similar provision in respect of revisions, courts have largely gone by the principles evolved under Section 394 of the CrPC, when considering the abatement of a revision on the death of the accused. Thus, in most cases, death will truly do part with criminal proceedings.
For further information, please contact:
Kapil Arora, Partner, Cyril Amarchand Mangaldas
kapil.arora@cyrilshroff.com
[1] Ramesan v State of Kerala; Criminal Appeal No. 77 of 2020;
[2] AIR 1964 SC 1645
[3] (1975) 3 SCC 343
[4] (1998) 2 SCC 431
[5] (1991 Supp (1) SCC 377
[6] Criminal Appeal No. 473 of 1998
[7] 2003 SCC OnLine Kar 260
[8] T. Valarmati v State of Tamil Nadu and Anr. Crl. R.C. No. 485 of 2013
[9] Deepakbhai Hasrajbhai Savaliya v State of Gujarat and Ors.; Criminal Revision Application No. 474 of 2004
[10] The Vigilance and Anti Corruption Bureau v Madhusoodanan M.P; CRL. REV. PET No. 578 0f 2021
[11] Shankar Deorao Bane v State of Mahrashtra & Ors.; Criminal Revision Application No. 29 of 2005
