P. Ubaid, J.—The question of law involved in this suo motu revision case is whether an appeal will abate u/s 394(2) of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C. for short), on the death of the appellant, in a case involving sentence of jail and fine. The four accused in CC No. 16 of 2004 before the Chief Judicial Magistrate Court, Thalassery were convicted on trial u/s 3(a) of the Railway Property (Unlawful Possession) Act. On conviction, they were sentenced to undergo simple imprisonment for one year each and to pay a fine of Rs. 2000/- each by judgment dated 16/12/2004. Aggrieved by the conviction and sentence, the 1st accused in the said case preferred appeal before the Court of Session, Thalassery as Crl. A. No. 18 of 2005. Pending the appeal, the appellant died. In such a circumstance, the learned Additional Sessions Judge (Ad hoc-III), Thalassery closed the appeal as abated u/s 394(2) of Cr.P.C., and made a further direction to recover the amount of fine from the assets of the deceased-appellant. On getting the case records from the Court of Session, the then Chief Judicial Magistrate addressed this Court through the District and Sessions Judge, Thalassery, for direction on the legal question, whether the said appeal could be closed as abated, when the sentence involves a sentence of fine also.

2. I heard the learned Public Prosecutor and the learned counsel appointed by this Court to make arguments in the matter. Both sides submitted that the appeal will not abate u/s 394(2) of Cr.P.C., when the sentence is a composite sentence of imprisonment and fine.

3. Section 394(2) of Cr.P.C. provides that every appeal under Chapter XXIX of Cr.P.C. shall finally abate on the death of the appellant, except an appeal from a sentence of fine. Proviso to Section 394(2) provides 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.

4. Every appeal against conviction involving jail sentence will abate u/s 394(2) because the sentence cannot be enforced. But that is not the case of a sentence involving fine. In such a case, the sentence of fine can be enforced by way of recovery of fine amount. The effect of abatement of appeal u/s 394 Cr.P.C. is that the jail sentence will become unenforceable on the death of the appellant. Abatement of appeal will not have the legal effect of erasing the stigma of conviction or setting aside the conviction. That is why the proviso gives liberty to the near relatives of the deceased appellant to prosecute the appeal with the leave of the Court. If the near relatives or the legal heirs want to have the stigma of conviction erased by way of finding in favour of the deceased in appeal, they can very well prosecute the appeal with the leave of the Court. But in a case of sentence of fine alone, the appeal will not abate and the Court will have to decide the appeal on merits.

5. The law u/s 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.

6. 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.

7. 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.

8. In State of A.P. Vs. S. Narasimha Kumar and Others, , the Honble Supreme Court held that an appeal from a composite order of sentence combining substantive imprisonment with fine does not abate on the death of the accused. In the present case, the learned Additional Sessions Judge simply closed the appeal as abated, but directed the amount of fine to be realised. Such a course is not possible because any decision affecting the estate of the deceased can be taken only on merits. The near relatives or legal heirs of the deceased-appellant can very well prosecute the appeal, if they so want, with the permission of the Appellate Court, as provided in the proviso to Section 394(2) of Cr.P.C. If the Appellate Court ultimately decides in their favour, or against the prosecution, the conviction will have to be set aside. Proceeding to realise the amount of fine without deciding the appeal on merits will affect the estate of the deceased-appellant, and that is why the law gives a protection, that the appeal shall not simply abate on the death of the appellant, in a case involving sentence of imprisonment and fine. In the result, I find on the question of law that an appeal involving composite sentence of jail and fine will not abate u/s 394(2) of Cr.P.C. Crl. A. No. 18 of 2005 is ordered to be restored to the files of the Court of Session, Thalassery for hearing and disposal on merits. If the near relatives or legal heirs of the deceased appellant want to prosecute the appeal, they can very well seek the permission of the Appellate Court under the proviso to Section 394(2) of Cr.P.C.