K.T. Sankaran. J.

1. The appellant was convicted under Section 302 of the Indian Penal Code and he was sentenced to undergo imprisonment for life and to pay a fine of Rupees ten thousand and in default, to undergo rigorous imprisonment for one year. The appellant died on 27.7.2011 pending the appeal before this Court. No application has been filed by any of the near relatives of the appellant seeking leave to continue to prosecute the Criminal Appeal.

2. The learned Public Prosecutor as well as the learned counsel for the appellant brought to our notice that in view of the decision in Suo Motu v. M.P.Ismail and another (2014 (2) KHC 82 [LQ/KerHC/2014/605] ), it is doubtful whether the Criminal Appeal can be dismissed on the ground that the appellant is dead and that no near relative has come forward to prosecute the appeal. In Suo Motu v. M.P.Ismail and another (2014 (2) KHC 82 [LQ/KerHC/2014/605] ), two sentences occurring in paragraph 8 of the judgment caused the suspicion whether the appeal has to be disposed of on the merits. Those sentences read as follows:

"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."

It is also submitted that the aforesaid two sentences are contrary to the view expressed by a Division Bench of this Court (K.T.Sankaran & M.L.Joseph Francis, JJ) in Pradeep v. State of Kerala (2013 KHC 717).

2. In view of the submission made by the learned Public Prosecutor as well as the learned counsel for the appellant, it would be only proper to decide the following questions: (1) In the absence of any near relative coming forward to prosecute the appeal, whether it is mandatory that the Appellate Court should dispose of the appeal on the merits; and (2) Whether in such circumstances, the fine can be realised after the death of the appellant/accused, under Section 70 of the Indian Penal Code in the absence of a finding of guilt by the Appellate Court.

3. In the Code of Criminal Procedure, 1898, Section 431 dealt with the provision on the subject. Section 431 of the 1898 Code was to the following effect:

"431. Abatement of appeals. 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 fine) shall finally abate on the death of the appellant."

4. In the Code of Criminal Procedure 1973, the old Section 431 was bifurcated into sub-sections (1) and (2) of Section 394 and a proviso and explanation were added. Section 394 of the 1973 Code reads as follows:

"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."

5. In Bondada Gajapathi Rao v. State of Andhra Pradesh (AIR 1964 SC 1645 [LQ/SC/1964/87] ), the Supreme Court held, interpreting Section 431 of the Code of Criminal Procedure 1898, that where the sentence is not one of fine but of imprisonment, which on the death of the accused becomes infructuous, the sentence does not affect the property of the deceased-accused in the hands of his legal representatives, and therefore, the appeal, in such a case, would abate, upon the death of the accused. In so far as personal punishment (other than a fine) is concerned that stands dissolved by the death of the offender and an appeal to get that punishment set aside becomes infructuous and abates.

6. In State of Kerala v. Narayani Amma Kamala Devi and others (AIR 1962 SC 1530 [LQ/SC/1962/122] ), the Supreme Court held:

"3a. The Criminal Procedure Code gives a right of appeal to the convicted person in certain cases. If, after the conviction and before an appeal has been filed the convicted person dies, there is no provision for any appeal on his behalf. What will happen when after an appeal has been filed by the convicted person, he dies, is provided for in S. 431 of the Criminal Procedure Code. That section provides that every appeal against acquittal and every other appeal under Chapter XXXI except an appeal from a sentence of fine shall finally abate on the death of the appellant. The High Court or the Court of Sessions cannot therefore exercise its appellate jurisdiction in favour of a dead person even if an appeal has been filed by him, except in an appeal from a sentence of fine."

In Harnam Singh v. The State of Himachal Pradesh ((1975) 3 SCC 343 [LQ/SC/1974/383] ), the Supreme Court considered the scope of Section 431 of the 1898 Code and 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 S. 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."

8. In Pranab Kumar Mitra v. State of West Bengal and another (AIR 1959 SC 144 [LQ/SC/1958/118] ), which was relied on by the learned single Judge in Suo Motu v. M.P.Ismail and another (2014 (2) KHC 82 [LQ/KerHC/2014/605] ), the Supreme Court held:

"7. On the death of the convicted person, the question of his serving the whole or a portion of his sentence of imprisonment, does not arise. But the sentence of fine still remains to be examined-whether it was well-founded in law. This question cannot be effectively gone into unless the order of conviction itself is examined on its merits. If the fact that the fine will have to be paid out of the estate of the deceased appellant or petitioner in revision, is the ground for giving the heir or legal representative a right to continue the appeal or a privilege of maintaining or continuing a revision, the same principle should entitle him to question the correctness of the conviction itself, for, if the conviction remains, at least some fine however nominal, will have to be paid by the heir or the legal representative out of the estate of the deceased. In our opinion, therefore, where the High Court thinks it fit and proper to entertain an application in revision or calls for the record suo motu, it has the power to examine the whole question of the correctness, propriety or legality of the sentence of fine, which necessarily involves examining the order of conviction itself from that point of view."

In State of Andhra Pradesh v. Narasimha Kumar (2006 (3) KLT 505 (SC)) [LQ/SC/2006/600] , the Supreme Court followed the decision in Harnam Singh v. The State of Himachal Pradesh ((1975) 3 SCC 343 [LQ/SC/1974/383] ). The decision in State of Andhra Pradesh v. Narasimha Kumar (2006 (3) KLT 505 (SC)) [LQ/SC/2006/600] , was followed by the learned single Judge of this Court in Suo Motu v. M.P.Ismail and another (2014 (2) KHC 82 [LQ/KerHC/2014/605] ).

9. It would appear that the decision of a Division Bench of this Court in Pradeep v. State of Kerala (2013 KHC 717) was not brought to the notice of the learned single Judge in Suo Motu v. M.P.Ismail and another (2014 (2) KHC 82 [LQ/KerHC/2014/605] ). In Pradeep v. State of Kerala (2013 KHC 717), the Division Bench held thus:

"47. 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 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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 appeal is from a sentence of fine. Under Section 70 of the IPC, 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. In the present case, the appeal in question was filed by accused No.2. The sentence includes fine. Even if the sentence does not include fine, the near relatives of the second accused could apply for leave to continue the appeal, as provided under the proviso to Section 394(2) of the Code of Criminal Procedure. But, none of the near relatives has come forward and made any application. 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."

10. In Pradeep v. State of Kerala (2013 KHC 717), the decision of the Supreme Court in Lakshmi Shanker Srivastava v. State (Delhi Administration) (AIR 1979 SC 451 [LQ/SC/1978/345] ) was followed. In Lakshmi Shanker Srivastavas case, the appellant in the Criminal Appeal died and leave was granted to his near relatives to continue to prosecute the appeal. A contention was put forward on behalf of the State that they concede to set aside the sentence of fine and that would have the effect of setting aside the order granting leave to the near relatives to continue the appeal against the substantive sentence. The Supreme Court rejected this contention and held thus:

"7. The present case would, therefore, be governed by sub-section (2) of Section 394, Criminal PC. It becomes clear from the proviso to Section 394 (2), CrPC 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 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-section (2) of Section 394, CrPC 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."

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 and another (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 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.

12. In the present case, no near relative has come forward to prosecute the appeal. The period of thirty days provided in the proviso to sub-section (2) of Section 394 is over. Therefore, we are of the view that the appeal is liable to be dismissed as abated.

Accordingly, the Criminal Appeal is dismissed as abated.