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TMI Blog1964 (3) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... similar sentences are permitted to be continued by the executors of the deceased appellant: see Hodgson v. Lakeman([1943] L.R.K.B. 15.). It is true that neither s. 431 nor the cases mentioned can be said to apply to the present case proprio vigore, for the present is not an appeal under the Code which is dealt with by s. 431 nor is it a revisional application like the one which came up for consideration in Pranab Kumar Mitra's case, while as for the English case, it is only of persuasive value. 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. If they can be continued when arising under the Code, there is no reason why they should not be continued when arising under the Constitution. If revision petitions may be allowed to be continued after the death of the accused so should appeals, for between them no distinction in principle is possible for the purpose of continuance. It is true that the Code of Criminal Procedure which creates the revisional powers of a Court provides that such powers may be exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the deceased's estate would have been entitled. But the effect of the sentence imposed in this case being set aside would not directly entitle the legal representatives to the salary. They will have to obtain necessary orders from the Government for the purpose. It has not been shown to us that such order will automatically follow the setting aside of the conviction. Neither has it been shown that the legal representatives cannot move the Government to pass such orders on the ground that the correctness of the conviction could not be tested because of the death of the appellant. For these reasons I am unable to hold that tire justice of the case requires that the legal representatives of the deceased should be permitted to continue the appeal. It would be extending the principle applied to the case of a sentence of fine, if on the basis of it this appeal was allowed to be continued by the legal representatives after the death of the appellant and for such an extension I find no warrant. In my view, for these reasons the legal representatives are not entitled to continue the appeal. That being so and as the sentence was one of imprisonment which would not affect anyone after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is contended that without the aid of a provision like s. 431, Criminal Procedure Code, the appeal must be treated as continuing and it is pointed out that for this reason and for the additional reason that the powers of revision can be exercised suo motu this Court allowed legal representatives t` continue to prosecute criminal revisions under s. 439 of the Code in Pranab Kumar Mitra v. The State of West Bengal and Another([1959] (1) S.C.R. 63.) and Pritam Singh v. The State([1950] S.C.R. 453.). It is urged that on a parity of reasonig this appeal can be continued by the heirs. It is not my purpose to consider, whether in the absence of any direct injury to the living every criminal proceeding must come to an end after the death of the accused whether before his conviction or after. But there must always be some discernible reason for permitting another person to continue an appeal whether civil or criminal after the death of the appellant. An appeal is not a heritable asset and does not revolve as a matter of course upon an executor or heir. Even under the civil law an express provision is required for substitution of another person in the place of the person deceased before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a situation the ordinary rule that a criminal proceeding against a person comes to an end on his demise must apply also to special appeals in this Court, such as this, even though the provisions of the Criminal Procedure Code may not be directly applicable. At the hearing counsel cited cases from the English Courts and the Supreme Court of the United States. The English cases referred to are collected in Short & Mellor's Practice of the Crown Office and Griffith's Guide to Crown Practice and the cases of the United States are referred to in Annotations in 87 Lawyer's Edition 1234 and 1 Lawyer's Edition II Series 1879. The English practice appears to be that there must be a, direct monetary liability attaching to the living by reasons of the impugned judgment before they can be allowed to continue an appeal filed by a dead person. See Hodgson v. Lakeman([1943] K.B. 15.) and Regina v. Rowe([1955] 1 Q.B.D. 573). The American practice also appears to be the same. There is good reason for holding that a criminal prosecution in which the State is anxious to bring an offender to book with a view to getting him punished for a crime comes to an end on the death of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are set aside by this Court. In support of his contention that the appeal has not abated by reason of the death of the appellant Mr. K. R. Chaudhuri points out that s. 431 of the Code of Criminal Procedure (hereafter referred as the Code) which speaks about appeals is limited in its application to appeals under Ch. XXXI of the Code and would not fetter the powers of this Court under Art. 136 of the Constitution to hear an appeal brought before it by special leave even though the person who brought it is no longer alive. It is no doubt true that s. 431 of the Code only says that appeals under s. 411A, sub-s. (2) and s. 417 shall finally abate on the death of the accused and every other appeal under Chapter XXXI except an appeal from a sentence of fine shall finally abate on the death of the appellant. It does not, therefore, in terms apply to an appeal permitted to be preferred by this Court in exercise of its discretion under Art. 136 of the Constitution. The argument of Mr. Chaudhuri is that the power conferred upon this Court by Art. 136 is wide and discretionary and is analogous to that conferred upon the High Court by s. 439 read with s. 435 of the Code. Therefore, upon an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunity of showing such error as may be existing in the judgment or order appealed from. There is a fundamental difference bet- ween a power which is exercisable by a Court suo motu and a power which can be exercised only when it is moved in that behalf by a party. For the exercise of suo motu power the appearance of a, party before the Court concerned is not a prerequisite. Indeed as s. 440 provides, it is for the Court to decide whether or not to allow the party to appear before it and be heard. But of course the principle of natural justice would preclude a court even in such a case from making an order to the prejudice of a party without giving the party an opportunity to be heard. In so far as an appeal is concerned, by whichever way it is brought, whether as of right conferred by a provision in the Constitution or by any other law or by special leave the appellant has a right to be heard and a right to prosecute the appeal. A Court exercising suo motu powers may choose at any stage to drop the proceeding and not proceed to examine the records at all. But as long as an appeal is pending before a Court and there is a person legally competent to prosecute it and there is no leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the appeal and permits the accused person if he so wishes to present his case by submitting his argument in writing and provides for the consideration of the written argument at the hearing. Sub- rule (2) of that rule dispenses with necessity of production of the accused person in custody at the hearing of the appeal. There is no express rule which states as to what has to be done where the accused person who is an appellant is not present or represented at the hearing of the appeal. Order XLV, rule 5, however, preserves the inherent power of the Court to make such orders as may be necessary to meet the ends of justice or to prevent the abuse of the process of the Court. Thus this Court has the power to prevent the abuse of its process and it will be an abuse of its process if the appellant despite service of notice of the date of hearing chooses to remain absent at the hearing. Now, just as the Court can, under r. 18 of 0. XXI dismiss an appeal for non-prosecution where the appellant refuses to take the necessary steps for bringing the appeal to hearing, it must be deemed to have similar power to dismiss it where the appellant is not present or is not represented. Where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve had an interest in having that burden removed. This case was distinguished in Regina v. Rowe([1955] 1 Q.B.D. 573.) In that case the widow of the deceased appellant sought leave to prosecute the appeal in which he had challenged his conviction on four counts of obtaining money by false pretences and the sentence of imprisonment to 18 months. The ground on which the widow's application was supported was that the conviction against her husband affected her chances of employment and her position among her friends and that if interest is the test, then the widow also had an interest. This argument was repelled by Lord Goddard C.J. who said that the Court cannot take notice of that because the interest she has was not a pecuniary one. It was further urged before the Court that where any person might be prejudiced by a conviction against a deceased person, and an appeal was lodged before the death of that person, the Court should allow the appeal to be continued by that person so that if there had been a miscarriage of justice and the heirs of the deceased were living under the shadow of the fact that their relative had died a convict, the interests of justice would require that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.) the counsel was allowed to argue an appeal after the death of one of the parties. But in Leach v. Wanstead School Board (2) (2) wherein a conviction against the father of a child for not sending the child to school was challenged in appeal and the father and the child had died in the meanwhile, the Court refused to allow the case to be argued on the ground that there was no interest surviving. In Siberry v. Connolly(3) where there was a claim for seaman's wages, the appellant's executors were allowed to take the place of the deceased appellant. In Constantine v. Illingworth(4) where the defendant in a criminal case had died, the Court ordered the case to be struck out. The same was done in Jones v. Fallowfield(5). In Rivers v. Glasse(6) where the respondent had died and the appellant had given notice to the executors to support the conviction, the Court heard and determined the case and gave costs to the respon- dent's executors. The position so far as the United States is concerned is set out as follows(1 L.Ed. 2nd Series, p. 1879): "The death of an accused ordinarily abates a criminal action, including review proceedings pending at that time. The interest o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... binding upon it, rescinds the suspension order passed against the appellant and in conformity with it pays the arrears of salary due to the appellant. This interest is not a direct interest in the sense that it cannot arise out of the decision of this Court even if it is in favour of the appellant. The only interest which the applicants have is a. contingent one and is not one which could flow directly out of the ultimate decision of this Court. If we may mention, the argument advanced in Rowe's case([1955] 1 Q. B.D. 573.) before Lord Goddard C.J., that by clearing her deceased husband's name the widow's chances of securing employment would improve was not accepted as creating a pecuniary interest such as to justify granting her permission to prosecute the appeal. Indeed, the legislature has, by limiting in s. 431 of the Code the survival of appeals to appeals against sentences of fine has chosen to recognise only one kind of interest and no other. There could be several other kinds of interest, as was suggested during the arguments at the bar. But this Court, in exercise of its inherent powers or discretionary powers, would not be acting according to correct legal pri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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