SAILENDRA SUNDAR MITRA Vs. STATE

JUDGEMENT

(1.) In this revisional application, directed against an order of conviction of Sailendra Sunder Mitra under Section 420, Penal Code in which the accused was sentenced to one day's imprisonment and to pay a fine of Rs. 500/-, in default to suffer rigorous imprisonment for six months more, the first question arising for decision is whether an application for substitution of the heir of Sailendra Sunder Mitra who is now dead can be allowed. Section 431, Criminal P. C. provides that every appeal shall abate finally on the death of the accused except an appeal from a sentence of fine. The questions therefore, for decision are, firstly, whether this provision applies to revisional applications and secondly, whether it applies when there is a composite sentence of imprisonment and fine.

(2.) Mr. Banerjee appearing for the State has pointed out that Section 439, Criminal P. C. does not in terms refer to Section 431, Criminal P. C. and he has therefore contended that the provision as to abatement does not apply to a revisional application Section 439, Criminal P. C. no doubt does not contain a reference to Section 431, Criminal P. C.; but the several sections mentioned therein, namely, Sections 423, 426, 427, 428 and 338, refer to powers which the High Court as revisional Court exercises. Section 431, Criminal P. C. does not refer to powers in revision and therefore there is no scope for reference to Section 431 in Section 439, Criminal P. C. Thus, merely, because there is no reference to Section 431 in Section 439, it does not follow that the provision as to abatement does not apply to revisional applications. If the provisions of Section 431, Criminal P. C. were not to apply mutatis mutandis to revisional applications, it would follow that the revisional applications would not abate at all and would have to be heard on merits. That cannot, however, be the scheme of the Criminal Procedure Code that a re-visional application should not abate while an appeal should abate on the death of the accused. It would be logical to apply the provisions as to abatement contained in Section 431, Criminal P. C. with necessary modifications to revisional applications. That, In fact, has been the view of several other High Courts. Reference may be made to the case of Daulat Ram v. Emperor, 20 Cri LJ 214: (AIR 1919 Lah 347) (A), .which is a decision of the Punjab High Court and to the case of Ramdhani Gope v. Jagesher Mahto, 42 Cri LJ 653 : (AIR 1941 Pat 526) (B), which is a decision of the Fatna High Court. There appears to be no decision of any High Court to the contrary. Accordingly, we hold that the provisions as to abatement apply with suitable modifications to a revisional application.

(3.) As to the next question whether it applies when there is a composite sentence, Section 431, Criminal P. C. provides that every appeal abates on the death of the accused except an appeal from a sentence of fine. Mr. Banerjee appearing for the State has urged that therefore an appeal or a revisional application would be saved only when there is a sentence of fine only and not when there is a composite sentence of imprisonment and fine. But the principle on which Section 431 is based is that under Section 70, Penal Code the heirs of the accused sentenced to a pay a fine are liable to the extent of the estate of the deceased accused in their hand. That liability would attach to them even when there is a composite sentence. We would, therefore, hold that the principle of Section 431 applies even when there is a composite sentence but only so far as the sentence of fine is concerned. Accordingly, we allow the application for substitution.