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TMI Blog1958 (10) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... ese words: The charge against the accused was that on the 2nd December, 1946, at Garden Reach, the accused, being an employee as Establishment Clerk of B. C. II Section in the Traffic Accounts Office of B. N. Railway (now Eastern Railway), cheated the said B. N. Railway Administration by dishonestly inducing it by means of false representation in the pay bill of the non-gazetted staff for November, 1946, to deliver to him ₹ 205-13-0 and to one Satish Chandra Das Gupta, a clerk in the said B. C. 11 Section, ₹ 33-4-0 in excess of legitimate dues, and thereby committed an offence punishable under section 420, I.P.C. The learned trial Magistrate convicted the accused person for cheating in respect of ₹ 205-13-0, but gave him the benefit of the doubt in respect of the sum of ₹ 33-4-0 claimed on behalf of another person, named Satish Chandra Das Gupta. He sentenced the accused to suffer one day's imprisonment (really, detention till the rising of the court, on the day the order was pronounced), and to pay a fine of ₹ 500/-, and in default, to rigorous imprisonment for six months, more. He also directed that out of the fine, if realised, ₹ 333/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person was that he had over-charged on account of a mistake, and that he was prepared to refund the excess amount, the High Court directed that the sentence of fine be reduced to the sum charged in excess, namely, ₹ 205/13/-. It also directed that the whole of the amount of fine, if realized, shall be paid to the B.N. Railway Administration (now South Eastern Railway). Being dissatisfied with the aforesaid order of the High Court, the appellant moved the High Court and obtained the necessary certificate of fitness from the High Court. Hence, this appeal on a certificate under art. 134 (1) (c) of the Constitution, granted by the High Court. There is no relevant provision in the Code, except s. 431 which is the last section in Chapter XXXI of the Code, dealing with appeals, and is in these terms:- 431. Every appeal under section 411A, subsection (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. It is manifest that the section, in terms, applies. only to appeals, and lays down that an appeal against an order of acquitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt,. and his Conviction and sentence were set aside. Thereupon, one of the relatives of the deceased appellant applied to the High Court in its revisional jurisdiction to set aside the conviction and sentence passed against the dead man, and for a refund of the fine (which appears to have been paid). It was held by the High Court, without discussing the terms of the section and without giving any reasons for that conclusion, that the appeal in respect of the dead man had abated under s. 431 of the Code. The High Court refused to deal with the case in its revisional jurisdiction on the ground that the case depended upon appreciation of evidence. It may be that the High Court came to that conclusion presumably on the ground that the appeal was not only against a sentence of fine but also against a substantive sentence of imprisonment. Where a sentence both of fine and of imprisonment, is passed, and an appeal or an application in revision is filed, the superior court may grant bail or may not. It may be that in a case where bail has not been granted, the convicted person may have served out his substantive sentence of imprisonment, and by the time his appeal or application in revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case considered on merits. Ultimately, he came to the conclusion that there was no doubt that the High Court could dispose of the case as a Court of Revision, but he also thought that the Court was bound to decide the case as a Court of Appeal. On this difference of opinion between the two learned Judges, the matter was placed before Westropp, C. J. The learned Chief Justice agreed with Melvill, J., that the Code had not made any provision for the continuance of an appeal by the legal representative of a deceased convict, nor did the High Court have the power to deal with the appeal on the death of the convicted person. He based his conclusion substantially on the ground that the right to appeal or to continue an appeal already pending, is given by Statute expressly or by necessary implication. This view now finds statutory recognition in s. 431. He also held that though the appeal had abated, the High Court had the power to call for the record and exercise its revisional jurisdiction suo motu, but he did ,not express any opinion whether in the case before the Court, such a power could be exercised. In our opinion, in the absence of statutory provisions, in terms applying to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicate. The High Court has been left complete discretion to deal with a pending matter on the death of the petitioner in accordance with the requirements of justice. The petitioner in the High Court may have been an accused person who has been convicted and sentenced, or he may have been a complainant who may have been directed under s. 250 of the Code to pay compensation to an accused person upon his discharge or acquittal. Whether it was an accused person or it was a complainant who has moved the High Court in its revisional jurisdiction, if the High Court has issued a Rule, that Rule has to be beard and determined in accordance with law, whether or not the petitioner in the High Court is alive or dead, or whether he is represented in court by a legal practitioner. In hearing and determining cases under s. 439 of the Code, the High Court discharges its statutory function of supervising the administration of justice on the criminal side. Hence, the considerations applying to abatement of an appeal, may not apply to the case of revisional applications. In our opinion, therefore, the Bombay majority decision (1), in the absence of any statutory provisions in respect of criminal revi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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