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TMI Blog1974 (11) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... from a friend Chet Ram and on the 20th he lodged his complaint with the Anti-Corruption-Department. Sub Inspector Kewal Ram obtained permission from a Mandi Magistrate to investigate the offence and laid the trap. The raiding party went to Harnam Singh's office where Nitya Nand is alleged to have given the marked currency notes of ₹ 30 to Harnam Singh. The Special Judge Mandi, Kulu and Lahaul Spiti Districts, rejected the defence of Harnam Singh that the sum of ₹ 30 was not found from his person but was found from a residential room where it was planted by the complainant Nitya Nand. The learned Judge convicted Harnam Singh under section 5)1)(d) read with section 5(2) of the Prevention of Corruption Act as also under section 161 of-the Penal Code, and sentenced him to suffer rigorous imprisonment for two years and to pay a fine of ₹ 300. The High Court of Delhi confirmed the, conviction but reduced the substantive sentence to one year. Learned counsel for the State of Himachal Pradesh, who are respondents to the appeal, has raised a preliminary objection to the right of the appellant's widow to prosecute the appeal. He contends that the substantive sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision contained in section 431. Chapter XXXI of the Code of 1898, called "of Appeals" contains provisions governing appeals. The Chapter opens with section 404 which provides that no appeal shall he from any judgment or order of a Criminal Court except as provided for by the Code or by any other law for the time being in force and ends with section 431 which. deals with abatement of appeals. Section 411A(2) provides for appeals to the High Court from orders of acquittal passed by the High Court in the exercise of its original criminal jurisdiction. Section 417 deals with appeals to the High Court from original or appellate orders of acquittal passed by Courts other than a High Court. By section 43 1, appeals against acquittal filed under section 41 1 A (2) of section 417 finally abate on the death of the accused. Dead persons are beyond the processes of human tribunal and recognising this, the first limb of section 431 provides that appeals against acquittals finally abate on the death of the accused. Where a respondent who has been acquitted by the lower court dies, there is no one to answer the charge of criminality, no one to defend the appeal and no one to receive t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 sente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive sentence to remain. The sentence of the fine becomes illegal if the conviction is wrong. If the conviction is wrong, no sentence at all can be imposed on the accused. Therefore, once the appellate court reaches the conclusion that the conviction is unwarranted, that finding must be given its full effect by setting aside the conviction and all such sentences as are founded on the order of conviction. We find it impossible to agree with the submission of the State Government that even after finding that the conviction is illegal, the court must only set aside the sentence of fine permitting the illegal conviction and the substantive sentence founded upon it to remain. That would be truly unjust and anomalous. If this be the true interpretation of section 431, there is no reason why the same principle ought not to be extended to criminal appeals filed in this Court under Article 136 of the Constitution. Accordingly the widow of the deceased appellant who has been brought on the record of the appeal as his legal representative is entitled to continue the appeal as the sentence' of fine directly affects the property which would devolve on her on the death of her husband. In Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eby the children or the members of the family of a convicted person who dies during the appeal could challenge the conviction and get rid of the odium attaching to the family as a result of the conviction. The Law Commission of India by its Forty-First Report (September, 1969, Vol. 1, pp. 279 to 281) found the proposed amendment " eminently sound" and recommended that the amendment be made with certain modifications. Accordingly section 394 of the Code of Criminal Procedure, 1973 has made a provision 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", 'near relative means a parent,, spouse, lineal descendant, brother or sister. Turning to the merits of the case we find it impossible to uphold the judgment of the High Court. The main witnesses examined by the prosecution in support of its case the complainant Nitya Nand the Investigating Officer, Kewal Ram, the Head ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to undertake the investigation. The evidence shows that the immediate superior of Kewal Ram, Inspector Amar Singh, was at the relevant time in charge of the Anti-Corruption unit functioning at Mandi. Kewal Ram obtained the permission to investigate the offence without disclosing this fact to the Magistrate. The two Panchnamas neither mention the time when they were made nor the place where they were made. The usual precaution of applying anthracene powder to the marked notes was not taken. The Panchas and the Police officers took their position at a spot from which they could neither see nor hear what was happening in the office of the accused. The two Panchas, who ultimately turned hostile, were previously known to the complainant Nitya Nand. Head Constable Jai Ram procured an affidavit of the Panch Sital Prasad in an unsuccessful attempt to bind him to the Statements contained in the Panchnama. Above all there is a serious discrepancy in the evidence as to whether the marked notes were found in a jacket worn by the accused or the pocket of his shirt. The accused examined himself as a witness in support of his own case but the High Court has not even referred to his evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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