K.T. Sankaran, J. - A learned single Judge referred these cases for consideration by a Division Bench. When the matter came up before the Division Bench, it was felt that the matter should be considered by a Full Bench. Accordingly, the cases were referred to the Full Bench.

2. The question referred to the Division Bench by the learned single Judge was:

"Whether an appeal from a sentence of fine would abate if no relative of the appellant comes forward to continue to prosecute the appeal"

3. The learned single Judge doubted the correctness of the decision in Raveendran v. State of Kerala 2014 (4) KLT 382 [LQ/KerHC/2014/1268] ).

4. In Pradeep v. State of Kerala (2013 KHC 717), interpreting Section 394(2) of the Code of Criminal Procedure, a Division Bench of this Court (in which Justice K.T. Sankaran was a member) held thus:

"That the appeal will not abate in the case of an appeal from a sentence of fine does not mean that the appeal cannot be disposed of without bringing on record the near relatives of the appellant. It only means that the near relatives of the appellant can continue to prosecute the appeal on getting leave from Court."

5. Later, a learned single Judge of this Court, without referring to the Division Bench decision in Pradeep v. State of Kerala (2013 KHC 717), held, in Suo Motu v. M.P. Ismail & another (2014 (2) KLT 290 [LQ/KerHC/2014/605] ), thus:

"6. The law under Section 394, Cr.P.C., insists on disposal of appeal against sentence of fine on merits, because the estate of the deceased will be affected by such a sentence. The provision, that appeal involving a sentence of fine alone shall not abate on the death of the appellant, will protect the interest of the estate of the deceased. But in the case of jail sentence, the sentence becomes unenforceable on the death of the appellant, and the appeal can proceed only if the near relatives or near legal heirs so want to have the stigma of conviction erased.

7. In a case of conviction involving composite sentence of jail and fine also, the estate of the deceased is involved because the amount of fine can well be realised from the estate of the deceased as provided under the provisions of the Cr.P.C. In such a situation, the appeal will have to be heard and disposed of by the Appellate Court, on merits, because the amount of fine cannot be recovered under the provisions of the Code of Criminal Procedure without a finding in appeal in favour of the prosecution.

8. In the above circumstances, the only finding possible on the question of law is that an appeal involving composite sentence of jail and fine will not abate on the death of the appellant. In the interest of the estate of the deceased- appellant, the Appellate Court will have to hear the appeal and dispose of it on merits. Without a finding in favour of the prosecution, the amount of fine cannot be realised under the law, though the sentence of imprisonment may not be enforceable. Only if the Appellate Court comes to a finding in favour of the prosecution upholding the conviction, the amount of fine can be realised from the estate of the deceased, though the jail sentence cannot be enforced."

6. Another Division Bench in Raveendran v. State of Kerala 2014 (4) KLT 382 [LQ/KerHC/2014/1268] ) (in which Justice K.T. Sankaran was a member), after referring to Pradeep v. State of Kerala (2013 KHC 717), Suo Motu v. M.P. Ismail & another (2014 (2) KLT 290 [LQ/KerHC/2014/605] ) and certain other decisions, held thus:

"11. Under the Code of Criminal Procedure, 1898, the near relatives of an accused could not continue to prosecute the appeal filed by the accused against sentence of imprisonment alone. An amendment to Section 431 of the Code of Criminal Procedure, 1973 was suggested in the Bill introduced in the Parliament by a private member. The object of the amendment was to provide a machinery whereby the children or members of the family of a convicted person who died during the pendency of the appeal, could challenge the conviction and get rid of the stigma attached to the family. The Law Commission of India in its 41st Report recommended for such an amendment to be made. Those steps resulted in the present Section 394 of the Code of Criminal Procedure 1973 with the proviso and Explanation therein. An appeal against conviction as provided in sub-section (2) of Section 394 would finally abate on the death of the appellant unless the near relatives make an application to the Appellate Court for leave to continue the appeal as provided in the proviso to sub-section (2) of Section 394. The expression "and if leave is granted, the appeal shall not abate" occurring in the last portion of the proviso to Section 394(2) makes the position clear. Unless the near relatives move the Appellate Court for leave to prosecute the appeal, nothing on the merits need be considered by the Appellate Court on the death of the appellant in an appeal of the nature referred to in sub-section (2) of Section 394. In such cases, the appeal would abate which has the result of the trial court judgment being in effect. However, the sentence of imprisonment cannot be executed, since the appellant is no more. That is not a ground to hold that in spite of the near relatives not moving the Appellate Court for leave to prosecute the appeal, the Appellate Court is bound to consider the appeal on the merits when fine also forms part of the sentence of imprisonment. It is well settled that in the case of an appeal against composite sentence of imprisonment and fine, the near relatives of the appellant would be entitled to challenge the fine also, since Section 70 of the Indian Penal Code would enable the State to recover the fine from any property which would, after the death of the appellant/accused, be legally liable for his debts. Under the 1973 Code, the near relatives of the appellant/accused can challenge the conviction and sentence by prosecuting the appeal which was preferred by the deceased appellant/accused. In the case of a sentence of imprisonment as well as fine also, they would have the same right. The observations made by the learned single Judge in Suo Motu v. M.P. Ismail & Anr. (2014 (2) KLT 290 [LQ/KerHC/2014/605] : 2014 (2) KHC 82 [LQ/KerHC/2014/605] ), which were quoted in paragraph 2 above, in our view, are against the dictum laid down by the Division Bench in Pradeep v. State of Kerala (2013 (4) KLT SN 135 (C.No.144) : 2013 KHC 717). We do not agree with the view expressed by the learned single Judge that only if the Appellate Court comes to a finding in favour of the prosecution upholding the conviction, the amount of fine can be realised from the estate of the deceased. If none of the near relatives apply for leave as provided in the proviso to Section 394(2), the Appellate Court would be justified in dismissing the appeal filed by the appellant on the ground that it has abated. Even an appeal from a sentence of fine would abate, if no near relative comes forward to continue to prosecute the appeal. There is no principle that an appeal from a sentence of fine should be heard in the absence of anybody and the Appellate Court should pass a judgment on the merits and only then the State could recover the fine, by proceeding against the property of the deceased appellant/accused. If the appeal abates, it would have the effect of the judgment and conviction and sentence thereunder passed by the Trial Court being in force. So long as the sentence of fine is not set aside, the right of the State to realise the fine amount in the manner provided in Section 70 of the Indian Penal Code would not be defeated. For that purpose, the Appellate Court need not suo motu consider the appeal on the merits and arrive at a finding on the question whether the appellant was guilty of the offence alleged against him, only for the purpose of considering whether his near relatives or legal representatives will be bound to discharge the fine."

7. In Crl. A. No. 699 of 2005, the appellant was convicted for the offences under Sections 376 and 450 of the Indian Penal Code and he was sentenced to undergo imprisonment and fine. In Crl.A.No.278 of 2006, the appellant was found guilty for the offences under Sections 3(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Sections 323 and 354 of the Indian Penal Code. The appellant in Crl. A. No. 278 of 2006 was also sentenced to undergo imprisonment and fine. During the pendency of the appeals, the appellant in both the Appeals died. No application was filed in the Criminal Appeals by any of the near relatives of the respective appellants seeking leave to continue to prosecute the appeals. The question which arises for consideration is whether the appeal should be heard on the merits by the court with respect to the sentence of fine or the appeals should be dismissed as abated since no near relatives of the appellants have come forward to continue to prosecute the Criminal Appeals.

8. To properly comprehend the scope of sub-section (2) of Section 394 of the Cr.P.C., the Section is extracted below:

"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."

9. In the reference order made by the learned single Judge the correctness of the decision in Raveendran v. State of Kerala 2014 (4) KLT 382 [LQ/KerHC/2014/1268] ) has been doubted. The learned single Judge in the reference order mentioned the question to be decided as to "whether an appeal from a sentence of fine would abate if no relative of the appellant comes forward to continue to prosecute the appeal".

The learned single Judge observed in the reference order thus:

"9. ..... The proviso obviously cannot apply to appeals which do not abate under Sub Section 2 of Section 394. The second category of cases which do not abate on the death of the appellant are appeals from sentence of fine. Since Sub Section 2 of Section 394 Cr.P.C. declares that appeal against sentence will not abate, the court cannot add a condition that it will not abate only if a near relative obtains leave to continue to prosecute the appeal. This is the reason why, in my opinion, the Supreme Court while referring to the appeals from sentences of fine observed in Bondada Gajapathi Rao v. State of Andhra Pradesh (AIR 1964 SC 1645 [LQ/SC/1964/87] ). "First I find no provision making such appeals abate" (vide paragraph 2)."

10. Let us now try to understand the scope of Section 394 of the Cr.P.C. The proviso to sub-section (2) of Section 394 enables the near relatives of the appellant to apply to the Appellate Court for leave to continue to prosecute the appeal. If such leave is granted, the appeal shall not abate. The general rule is that an appeal under Sections 377 and 378 of the Cr.P.C. shall abate on the death of the accused. Appeal under Section 377 is an appeal that can be preferred by the State challenging the inadequacy of the sentence.

An appeal under Section 378 of the Cr.P.C. is an appeal against acquittal. Appeals other than the appeals under Sections 377 and 378 are dealt with under sub-section (2) of Section 394. Those appeals also would abate on the death of the appellant except where the appeal is from a sentence of fine. Under Section 70 of the Indian Penal Code, the death of the offender does not discharge from the liability to pay fine, any property which would, after his death, be legally liable for his debts. Even if the sentence does not include fine, the near relatives of the accused could apply for leave to continue the appeal, as provided under the proviso to Section 394 (2) of the Cr.P.C.

11. In Bondada Gajapathi Rao v. State of Andhra Pradesh (AIR 1964 SC 1645 [LQ/SC/1964/87] ), the appeal before the Supreme Court was from a sentence of imprisonment for life imposed on the appellant upon his conviction for the offence of the murder of his wife. The appellant died pending the appeal before the Supreme Court. His legal representatives sought leave to continue the appeal. It is to be noted that in the Code of Criminal Procedure 1898, there was no provision similar to the proviso to sub-section (2) of Section 394 of the 1973 Code. Therefore, the near relatives of an accused could not challenge the conviction and sentence of their predecessor. The Supreme Court in Bondada Gajapathi Rao v. State of Andhra Pradesh (AIR 1964 SC 1645 [LQ/SC/1964/87] ), held thus:

"(2) There would seem to be authority for the proposition that revision petitions and some appeals from sentences of fine might be continued by his legal representatives on the death of the accused pending the proceeding: see Section 431 of the Code of Criminal Procedure and Pranab Kumar Mitra v. State of West Bengal (1959) Supp (1) SCR 63: (AIR 1959 SC 144 [LQ/SC/1958/118] ). It appears that in England appeals from similar sentences are permitted to be continued by the executors of the deceased appellant: see Hodgson v. Lakeman, 1943-1 KB 15. ............ All the same however I think it must now be held that appeals from sentences of fine may be permitted to be continued by the legal representatives of the deceased appellant. First, I find no provision making such appeals abate. ......

(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. ....... ....... .......

.......................

(9) ........ Even under the Civil law an express provision is required for substitution of another person in the place of the person deceased before the appeal can be continued and this is again subject to whether the cause of action survives or not. The same principle is again to the forefront in Section 431 when it allows an appeal in respect of fine to be continued but not appeals involving imprisonment. .......

...... ........

There is admittedly no express provision in any law permitting the substitution of the legal representatives of a deceased appellant in a criminal appeal brought to this Court by special leave. We have, however, to bear in mind the policy of the law as enacted in Section 431 of the Code. The policy is that every criminal appeal under Chapter XXXI will abate except an appeal from a sentence of fine. Thus, instead of there being any principle on the strength of which the legal heirs of a person could be allowed to prosecute after his death an appeal brought by him challenging his conviction and sentence of imprisonment the policy of the law is definitely opposed to it. Moreover, only a person who can properly represent a deceased appellant can be allowed to be brought on record in his place and prosecute the appeal. That is the principle upon which the provisions of O.XXII of the Code of Civil Procedure are based. That again is the principle followed by the Courts in England in allowing appeals in which the challenge was to a fine imposed upon the appellant to be continued by the executors and administrators of the deceased appellant. ....

12. The question whether an appeal from a composite order of sentence combining the substantive imprisonment with fine could also be treated as an appeal from a sentence of fine, was considered by the Supreme Court in Harnam Singh v. The State of Himachal Pradesh ((1975) 3 SCC 343 [LQ/SC/1974/383] ) and it was held:

"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."

13. Let us take a case where the near relatives of an appellant who was convicted and sentenced to undergo imprisonment and fine do not apply for leave as provided under the proviso to Section 394(2) of the Cr.P.C. From the wording of the proviso itself that "and if leave is granted, the appeal shall not abate" it is clear that the appeal would abate if no leave is applied for by the near relatives as provided in the proviso. Sub-section (2) of Section 394 uses the expression "except an appeal from a sentence of fine", while referring to abatement on the death of the appellant. The view taken in Suo Motu v. M.P. Ismail & another (2014 (2) KLT 290 [LQ/KerHC/2014/605] ) is that without a finding in favour of the prosecution in appeal, the amount of fine cannot be realised under law and only if the Appellate Court comes to a finding in favour of the prosecution upholding the conviction, the amount of fine can be realised from the estate of the deceased. The view taken in Suo Motu v. M.P. Ismail & another (2014 (2) KLT 290 [LQ/KerHC/2014/605] ) appears to be that the Court has to decide on the merits as to whether the deceased appellant was guilty of the offence, even in the absence of a near relative approaching the Appellate Court to be heard in the matter. The learned single Judge who referred these appeals to the Division Bench also appears to share that view though it is not so clearly stated in the reference order. When it is brought to the notice of the Appellate Court that the appellant/accused is dead, should the Appellate Court hear the appeal on the merits without anybody on record The counsel for the appellant cannot appear since evidently his engagement by the deceased appellant would lapse on the death of the appellant. Is the decision rendered by the court without any near relative of the appellant/accused on record binding on the near relative Should the Appellate Court wait for 30 days or 90 days for the near relatives to come on record Section 394 does not fix any period for the near relatives to continue to prosecute the appeal in the case of a sentence of fine. However, the proviso to sub-section (2) stipulates a period of 30 days to apply for leave to continue the appeal. Even in the case of the proviso to sub-section (2) of Section 394, cannot an application for leave be entertained after the expiry of 30 days Could not the Appellate Court condone the delay and entertain the application for leave to appeal after the expiry of 30 days by invoking Section 5 of the Limitation Act Suppose the Court, after the death of the appellant, appoints a counsel to argue the case and decides the case against the appellant and immediately thereafter the near relatives of the appellant approach the Appellate Court and pray for leave to continue the appeal. In such a case, could the Appellate Court reject their prayer on the ground that the appeal has already been decided without their junction by the Court after appointing a counsel to argue for the appellant Would it do justice to the near relatives of the appellant If an appeal from a sentence of fine or a composite sentence of imprisonment and fine is closed as abated, could not the near relatives approach the Court even thereafter and get the abatement set aside with respect to the sentence of fine Would not such a course be more than just and reasonable viewing the matter from the point of view of the near relatives of the deceased appellant

14. If we go by the words in Section 394 strictly, the proviso to sub-section (2) of Section 394 providing for granting leave does not strictly apply to a composite sentence of imprisonment and fine. By judicial interpretation in Harnam Singh v. The State of Himachal Pradesh ((1975) 3 SCC 343 [LQ/SC/1974/383] ), it became the law that the proviso would apply to a composite order of sentence of substantive imprisonment as well as fine. Let us also look at sub-section (2) of Section 394 where the expression "except an appeal from a sentence of fine" occurs. Where is the provision for the near relatives of the deceased appellant for continuing to prosecute the appeal from a sentence of fine By putting the expression "except an appeal from a sentence of fine" in brackets, sub-section (2) means to say that the appeal from a sentence of fine does not abate on the death of the appellant. True, such an appeal does not abate, but what is the step to be taken by the near relative If so, within what period Section 394 is silent about all these aspects.

15. What is the meaning of abatement in Section 394 of the Cr.P.C. In Advanced Law Lexicon - P. Ramanatha Aiyar, 3rd Edition, 2005, the word abatement in criminal law is described as follows:

"IN CRIMINAL LAW: Abatement of proceedings connotes their termination without any decision on the merits and without the assent of the prosecutor. (Ency. Of the Laws of England.)"

16. In Bondada Gajapathi Rao v. State of Andhra Pradesh (AIR 1964 SC 1645 [LQ/SC/1964/87] ), the Supreme Court held that in Civil Law an express provision is required for substitution of another person in the place of the person deceased before the appeal can be continued and this is again subject to whether the cause of action survives or not. It was also held that the same principle is again to the forefront in Section 431 of the Code of Criminal Procedure, 1898 when it allows an appeal in respect of fine to be continued but not appeals involving imprisonment. It was also held that only a person who can properly represent a deceased appellant in a Criminal Appeal can be allowed to be brought on record in his place to prosecute the appeal. That is the principle upon which the provisions of Order 22 of the Code of Civil Procedure are based.

17. Rule 1 Order 22 of the Code of Civil Procedure states that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. That means, if the right to sue does not survive, the suit will abate. For example, a suit abates in cases of personal actions. Cause of action for defamation does not survive the death of the person defamed. If the right to sue survives, the procedure to be followed to implead the legal representatives is contained in Rules 2, 3 and 4 of Order 22 of the CPC. Rules 2, 3 and 4 of Order 22 specifically mention that they apply where the right to sue survives. Rule 4A Order 22 provides for the procedure where there is no legal representative for a party who died during the pendency of the suit. Rule 6 provides that whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and it shall have the same force and effect as if it had been pronounced before the death took place. Rule 9 provides that where a suit abates or is dismissed under Order 22 of the CPC, no fresh suit shall be brought on the same cause of action. However, sub-rule (2) provides for an application being made to set aside the abatement or dismissal. Sub-rule (3) states that the provisions of Section 5 of the Limitation Act would apply to applications to set aside abatement. In the absence of any specific provision to the contrary, the principles in the various Rules of Order 22 of the CPC can be extended to Criminal Appeals also, to the extent it can be applied. The provision in Rule 6 Order 22 of the CPC that there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncement of the judgment may not as such apply to a criminal appeal challenging the conviction and sentence of imprisonment. On the death of the accused, the substantive sentence of imprisonment cannot be executed. Under the Code of Criminal Procedure, 1898, the near relatives of an accused could not continue to prosecute the appeal filed by the accused against the sentence of imprisonment alone. But the proviso to sub-section (2) of Section 394 of the Code of Criminal Procedure, 1973 provides for a right to the near relatives of the deceased appellant to apply for leave to continue the appeal in such cases. The substantive sentence of imprisonment may not directly affect the near relatives of the deceased appellant/accused. At the maximum, it may affect the near relatives since a stigma may be attached to the family as a result of the conviction of the deceased appellant. By virtue of the proviso to sub-section (2) of Section 394, even that stigma can be avoided by the near relatives by getting leave to continue the appeal against the conviction and sentence of the deceased appellant. In so far as an appeal from a sentence of fine is concerned, the death of the offender does not discharge from the liability any property which would, after his death be liable for his debts. Therefore, the legal representatives of the deceased appellant would be the affected persons if the sentence of fine is not set aside. That is why it is provided in Section 394(2) of the Cr.P.C. that an appeal from a sentence of fine shall not finally abate on the death of the appellant. In view of the decision in Harnam Singh v. The State of Himachal Pradesh ((1975) 3 SCC 343 [LQ/SC/1974/383] ), an appeal against conviction and sentence of imprisonment and fine would be an appeal from a sentence of fine within the meaning of Section 431 of the Code of 1898 (Section 394 of the 1973 Code). Under the Code of Criminal Procedure, 1973 as well as under the Code of Criminal Procedure, 1898, the expression "except an appeal from a sentence of fine" occurs.

18. Applying the principles of Order 22 of the CPC and on a proper interpretation of Section 394 of the Cr.P.C., the following principles would emerge. Under the Civil Law, when the cause of action does not survive, the death of a plaintiff or defendant would cause the suit to abate. If the cause of action survives, Rules 2 to 4 of Order 22 of the CPC would enable the legal representatives of the deceased party to be brought on record. If the death of the party occurs between the conclusion of the hearing and the pronouncing of the judgment, there shall be no abatement by reason of the death of the party, whether the cause of action survives or not. If within the time limited for bringing on record the legal representatives of the deceased party no application is made for that purpose, the suit would abate, but the abatement can be set aside as provided in Rule 9. Thus, there is an absolute abatement in cases where the cause of action does not survive. There is also an abatement in cases in which cause of action survives, if the legal representatives are not brought on record within the time permitted. The abatement on account of the cause of action not surviving is irreversibe, but in the case of abatement due to non-impleading the legal representatives within time, such an abatement can be set aside. Under Section 394 of the Cr.P.C., every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. That is an absolute abatement and there is no question of any further consideration in the appeal. However, in the case of an appeal from a sentence of fine, there is no abatement. That means, the appeal can be continued by the persons who are interested to continue the appeal. If nobody comes forward to continue to prosecute the appeal, the appeal can be closed as abated. However, that abatement can be set aside at the instance of near relatives of the deceased appellant, though no specific provision has been made for the same in the Cr.P.C. The inherent powers of the Court can be exercised in such a situation. In cases where the proviso to sub-section (2) of Section 394 applies, the appeal can be continued after the death of the appellant at the instance of the near relatives by applying for leave to continue the appeal. The abatement under sub-section (1) of Section 394 Cr.P.C. is absolute. The abatement under sub-section (2) of Section 394 is qualified and it is subject to the proviso therein. The proviso provides that if leave is granted, the appeal shall not abate. In the case of an appeal from a sentence of fine, there is no abatement but Section 394 is silent as to what should be done after the appellant in such an appeal dies. One view is that even in the absence of a near relative, the Court shall dispose of the appeal on the merits. That is probably because, it is well settled that if the appellant/revision petitioner is absent, the Court cannot dismiss the appeal/revision for default and the Court has to dispose of the case on the merits. Section 385 provides for notice to be given to the appellant or his pleader. Section 386 used the expression "hearing the appellant or his pleader". But those are all cases where the appellant is alive. The pleaders engagement by the appellant would come to an end on the death of the appellant. Sections 385 and 386 of the Cr.P.C. may not as such apply where the appellant is not alive.

19. Under the Code of Criminal Procedure, 1898, the near relatives of an accused could not continue to prosecute the appeal filed by the accused against sentence of imprisonment alone. An amendment to Section 431 of the Code of Criminal Procedure,1973 was suggested in the Bill introduced in the parliament by a private member. The object of the amendment was to provide a machinery whereby the children or members of the family of a convicted person who died during the pendency of the appeal could challenge the conviction and get rid of the stigma attached to the family. The Law Commission of India in its 41st Report recommended for such an amendment to be made. Those steps resulted in the present Section 394 of the Code of Criminal Procedure 1973 with the proviso and Explanation therein. An appeal against conviction as provided in sub-section (2) of Section 394 would finally abate on the death of the appellant unless the near relatives make an application to the Appellate Court for leave to continue the appeal as provided in the proviso to sub-section (2) of Section 394. The expression "and if leave is granted, the appeal shall not abate" occurring in the last portion of the proviso to Section 394(2) makes the position clear. Unless the near relatives move the Appellate Court for leave to prosecute the appeal, nothing on the merits need be considered by the Appellate Court on the death of the appellant in an appeal of the nature referred to in sub-section (2) of Section 394. In such cases, the appeal would abate which has the result of the trial court judgment being in effect. However, the sentence of imprisonment cannot be executed, since the appellant is no more. That is not a ground to hold that in spite of the near relatives not moving the Appellate Court for leave to prosecute the appeal, the Appellate Court is bound to consider the appeal on the merits when fine also forms part of the sentence of imprisonment. It is well settled that in the case of an appeal against composite sentence of imprisonment and fine, the near relatives of the appellant would be entitled to challenge the fine also, since Section 70 of the Indian Penal Code would enable the State to recover the fine from any property which would, after the death of the appellant/accused, be legally liable for his debts. Under the 1973 Code, the near relatives of the appellant/accused can challenge the conviction and sentence by prosecuting the appeal which was preferred by the deceased appellant/accused. In the case of a sentence of imprisonment as well as fine also, they would have the same right.

20. For the aforesaid reasons, we are of the view that in an appeal from a sentence of fine, the near relatives of the appellant would be entitled to come on record and continue to prosecute the appeal. No time limit is fixed for filing an application by the near relatives to come on record. Since the proviso to sub-section (2) of Section 394 provides for a period of thirty days for filing an application for leave to continue the appeal, the period for filing an application to come on record in an appeal from a sentence of fine can also be taken as thirty days. Within the period of thirty days if the near relatives do not file an application to come on record, the Court shall consign the appeal to record room. If the near relatives wish to come on record, they would be entitled to file an application to revive the appeal, in which case, the Court would be justified in hearing the appeal on the merits, provided the application is filed without undue delay. If nobody comes forward, nothing prevents the State from recovering the fine. Consigning the Appeal to the record room is only for the purpose of enabling the near relatives to approach the Court to redress their grievance. In the case of an appeal to which the proviso to sub-section (2) of Section 394 applies, which include an appeal from a sentence of imprisonment and fine, an application for leave shall be filed within thirty days of the death of the appellant, if the near relatives want to challenge the sentence of imprisonment. If the near relatives do not wish to challenge the sentence of imprisonment, the application can be treated as an application filed in an appeal from a sentence of fine. We concur with the view taken in Raveendran v. State of Kerala (2015(1) R.C.R.(Criminal) 642 : 2014 (4) KLT 382 [LQ/KerHC/2014/1268] ) and Pradeep v. State of Kerala (2013 KHC 717) : 2013 (4) KLT SN 135 case No. 144). However, we do not approve the view taken in paragraph 12 of the judgment in Raveendran v. State of Kerala 2014 (4) KLT 382) that the appeal is liable to be dismissed as abated in case the near relatives do not come forward to challenge the sentence of fine. At the same time, we do not approve the view that the appellate Court is bound to dispose of the appeal on the merits, even after the death of the appellant and even if no near relative applies to the appellate Court to come on record to challenge the sentence of fine. Such a disposal on the merits without the affected party being heard is not contemplated under the Code of Criminal Procedure. Moreover, hearing of an unwanted Criminal Appeal would amount sheer waste of judicial time.

21. The reference is answered accordingly.

Since no near relative has come forward to continue to prosecute the Criminal Appeals, the Criminal Appeals shall stand abated in so far as the sentence of imprisonment is concerned. However, the appeals shall be consigned to the record room for other purposes mentioned above.