Ram Piara Vs. State of Punjab - Court Judgment

SooperKanoon Citationsooperkanoon.com/1162710
CourtPunjab and Haryana High Court
Decided OnAug-20-2014
AppellantRam Piara
RespondentState of Punjab
Excerpt:
cra-s-858-sb-2000 -1- in the high court of punjab and haryana at chandigarh cra-s-858-sb-2000 date of decision: 20.08.2014 ram piara ..appellant versus state of punjab ..respondent coram: hon'ble mr.justice paramjeet singh1 whether reporters of the local papers may be allowed to see the judgment ?.2) to be referred to the reporters or not ?.3) whether the judgment should be reported in the digest ?. present: mr.aditya pal singla, advocate, amicus curiae. ms.deepa singh, addl.a.g. punjab. paramjeet singh, j. in the present case, appellant has been convicted and sentenced by the trial court for offence under section 15 of the narcotic drugs & psychotropic substances act, 1985 (hereinafter referred to as the “act”.) and ordered to suffer rigorous imprisonment for 10 years and to pay a fine of ` 1,00,000/- and in default to further undergo rigorous imprisonment for a period of one year. on 16.01.2014, a coordinate bench of this court passed the following order: “for the last two consecutive dates, no one has been appearing on behalf of the appellant. mr.b.s.kathuria, advocate, had appeared on behalf of parveen kumar201408.22 16:48 i attest to the accuracy and integrity of this document cra-s-858-sb-2000 -2- appellant till 17.8.2006 when his sentence was suspended. let, notice be issued to the appellant intimating him regarding the date of hearing, for 20.02.2014. in case of non-appearance on behalf of the appellant, the matter will be taken up for hearing with the assistance of legal aid counsel or with the assistance of amicus curiae.”. in compliance of the aforesaid order, affidavit dated 19.03.2014 of sh. sarbjit singh bahia, p.p.s.deputy superintendent of police, nawanshahar, sub division, district saheed bhagat singh nagar has been placed on record in which it is stated that appellant – ram piara has expired on 17.04.2010. till date, no near relative of the appellant has applied for leave to continue with the appeal. since the appellant has expired, sentence of rigorous imprisonment for the aforesaid offence under section 15 of the act stands abated. however, the question which falls for consideration of this court is as to whether in a case where fine is imposed by the trial court apart from imposing sentence of rigorous imprisonment, on death of the appellant does the appeal abate qua fine also?. in this context, it would be relevant to examine section 394 of cr.p.c.which deals with the provision of abatement of appeal and it reads as under: "”.394. abatement of appeals.- (1) every appeal under parveen kumar201408.22 16:48 i attest to the accuracy and integrity of this document cra-s-858-sb-2000 -3- section 377 or section 378 shall finally abate on the death of the accused. (2) every other appeal under this chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant: provided 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. explanation.- in this section, “near relative”. means a parent, spouse, lineal descendant, brother or sister.”. perusal of this section clearly indicates that an exception is carved out in the cases where an appeal is filed from a sentence of fine. except such an appeal, every other appeal under the chapter xxix of the code of criminal procedure, 1973 would abate on the death of the appellant. secondly, there is a proviso to sub-clause (2) which stipulates that even in a case where an appeal is filed against conviction and sentence of death or imprisonment and the appellant dies during the pendency of appeal, a provision is made whereby any of his relative can make an application within a period of 30 days from the date of death of the appellant for continuation of the appeal by them and if on such application being made, leave is granted by the court, then in that event, parveen kumar201408.22 16:48 i attest to the accuracy and integrity of this document cra-s-858-sb-2000 -4- the appeal would not abate and the legal representatives would be permitted to continue the said appeal. perusal of sub-clause (2) clearly reveals that legislature in its wisdom has made an exception in cases of an appeal filed from a sentence of fine. it is obvious that the said exception is made in such a case since even after the death of the appellant, the state would be entitled to recover that amount from his estate where he has a share in the said property. the apex court in hari prasad chhapolia v. union of india,(2008).scc690had considered the aforesaid question and the judgments in the case of harnam singh v. state of himachal pradesh, (1975).scc343 state of a.p.v.s.narasimha kumar and ors., (2006).scc683and s. kameshwar rao v. state, 1991 supp (1) scc377and it has been held in the case of hari parsad chhapolia (supra) as under:- “9. in view of what has been stated by this court in the afore-noted cases the principles embodied in section 394 of the code can be pressed into service in appeals before this court. it is true that the period of 30 days has been statutorily fixed for making an application by the legal heirs.in the instant case, the application was filed nearly after one year. we need not go into the question as to whether there is scope for condonation of delay as no acceptable explanation has been offered for the delayed presentation. 10. several times the matter was adjourned at the parveen kumar201408.22 16:48 i attest to the accuracy and integrity of this document cra-s-858-sb-2000 -5- request of learned counsel who appeared for the original appellant. the plea that the legal heirs did not know the requirement is clearly without any substance. the appeal has abated on the death of the appellant and is disposed of accordingly.”. in the present case, no application has been filed by any of the relatives of the appellant within the time prescribed under the said proviso, in my view, it would be appropriate to permit the amicus curiae to make his submissions in respect of the merits of the appeal. from the proviso to sub-section (2) of section 394 of cr.p.c, it is obvious, that an application for continuation of appeal and for making a statement that the applicant is the near relative, such near relative is enjoined within the time prescribed by the said proviso to approach the court as stated above, facilitating the continuance of the appeal notwithstanding the death of the appellant during the pendency of the appeal but that unfortunately not being the position, it is obvious that this court cannot decide the appeal on merits even qua sentence of fine for want of application by legal representatives. the principle is that if the lrs did not pursue the appeal, the appeal has to abate on the death of the appellant. the sentence of rigorous imprisonment for 10 years and for six months in default on payment of fine (i.e.substantive sentence and default sentence) stand abated on the death of the appellant, in my view, sentence of fine no more exists and, therefore, there is no reason to maintain and continue the order imposing the fine of ` 1,00,000/- as the parveen kumar201408.22 16:48 i attest to the accuracy and integrity of this document cra-s-858-sb-2000 -6- default clause of imprisonment in lieu of this already stands abated. identical view has been expressed by a division bench of bombay high court in gopala balu kamble v. state of maharashtra, 2012(2) bom cr7892012(3) mh jl346 i am of the opinion that non-payment of fine would have led to further imprisonment, in sum and substance, the order to pay fine is that of sentence of imprisonment for failure to pay fine. there appears no logic in insisting upon the payment of fine, then it would amount to going beyond the order of sentence passed by the trial court. insistence on recovery may be justified where the default clause of the sentence is not there or it is in lieu of compensation awarded under section 357 of the code of 1973. therefore, the appeal abates in entirety. ordered accordingly. present appeal stands disposed of. 20.08.2014 (paramjeet singh) parveen kumar judge parveen kumar201408.22 16:48 i attest to the accuracy and integrity of this document
Judgment:

CRA-S-858-SB-2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA-S-858-SB-2000 Date of Decision: 20.08.2014 Ram Piara ..Appellant Versus State of Punjab ..Respondent CORAM: HON'BLE Mr.JUSTICE PARAMJEET SINGH1 Whether Reporters of the local papers may be allowed to see the judgment ?.2) To be referred to the Reporters or not ?.3) Whether the judgment should be reported in the Digest ?.

Present: Mr.Aditya Pal Singla, Advocate, Amicus Curiae.

Ms.Deepa Singh, Addl.A.G.

Punjab.

Paramjeet Singh, J.

In the present case, appellant has been convicted and sentenced by the trial Court for offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the “Act”.) and ordered to suffer rigorous imprisonment for 10 years and to pay a fine of ` 1,00,000/- and in default to further undergo rigorous imprisonment for a period of one year.

On 16.01.2014, a Coordinate Bench of this Court passed the following order: “For the last two consecutive dates, no one has been appearing on behalf of the appellant.

Mr.B.S.Kathuria, Advocate, had appeared on behalf of PARVEEN KUMAR201408.22 16:48 I attest to the accuracy and integrity of this document CRA-S-858-SB-2000 -2- appellant till 17.8.2006 when his sentence was suspended.

Let, notice be issued to the appellant intimating him regarding the date of hearing, for 20.02.2014.

In case of non-appearance on behalf of the appellant, the matter will be taken up for hearing with the assistance of legal aid counsel or with the assistance of amicus curiae.”

.

In compliance of the aforesaid order, affidavit dated 19.03.2014 of Sh.

Sarbjit Singh Bahia, P.P.S.Deputy Superintendent of Police, Nawanshahar, Sub Division, District Saheed Bhagat Singh Nagar has been placed on record in which it is stated that appellant – Ram Piara has expired on 17.04.2010.

Till date, no near relative of the appellant has applied for leave to continue with the appeal.

Since the appellant has expired, sentence of rigorous imprisonment for the aforesaid offence under Section 15 of the Act stands abated.

However, the question which falls for consideration of this Court is as to whether in a case where fine is imposed by the trial court apart from imposing sentence of rigorous imprisonment, on death of the appellant does the appeal abate qua fine also?.

In this context, it would be relevant to examine Section 394 of Cr.P.C.which deals with the provision of abatement of appeal and it reads as under: "”.394.

Abatement of appeals.- (1) Every appeal under PARVEEN KUMAR201408.22 16:48 I attest to the accuracy and integrity of this document CRA-S-858-SB-2000 -3- section 377 or section 378 shall finally abate on the death of the accused.

(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant: Provided 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.

Explanation.- In this section, “near relative”.

means a parent, spouse, lineal descendant, brother or sister.”

.

Perusal of this section clearly indicates that an exception is carved out in the cases where an appeal is filed from a sentence of fine.

Except such an appeal, every other appeal under the Chapter XXIX of the Code of Criminal Procedure, 1973 would abate on the death of the appellant.

Secondly, there is a proviso to sub-clause (2) which stipulates that even in a case where an appeal is filed against conviction and sentence of death or imprisonment and the appellant dies during the pendency of appeal, a provision is made whereby any of his relative can make an application within a period of 30 days from the date of death of the appellant for continuation of the appeal by them and if on such application being made, leave is granted by the Court, then in that event, PARVEEN KUMAR201408.22 16:48 I attest to the accuracy and integrity of this document CRA-S-858-SB-2000 -4- the appeal would not abate and the legal representatives would be permitted to continue the said appeal.

Perusal of sub-clause (2) clearly reveals that legislature in its wisdom has made an exception in cases of an appeal filed from a sentence of fine.

It is obvious that the said exception is made in such a case since even after the death of the appellant, the State would be entitled to recover that amount from his estate where he has a share in the said property.

The Apex Court in Hari Prasad Chhapolia v.

Union of India,(2008).SCC690had considered the aforesaid question and the judgments in the case of Harnam Singh v.

State of Himachal Pradesh, (1975).SCC343 State of A.P.v.S.Narasimha Kumar and Ors., (2006).SCC683and S.

Kameshwar Rao v.

State, 1991 Supp (1) SCC377and it has been held in the case of Hari Parsad Chhapolia (supra) as under:- “9.

In view of what has been stated by this Court in the afore-noted cases the principles embodied in Section 394 of the Code can be pressed into service in appeals before this Court.

It is true that the period of 30 days has been statutorily fixed for making an application by the legal heiRs.In the instant case, the application was filed nearly after one year.

We need not go into the question as to whether there is scope for condonation of delay as no acceptable explanation has been offered for the delayed presentation.

10.

Several times the matter was adjourned at the PARVEEN KUMAR201408.22 16:48 I attest to the accuracy and integrity of this document CRA-S-858-SB-2000 -5- request of learned counsel who appeared for the original appellant.

The plea that the legal heirs did not know the requirement is clearly without any substance.

The appeal has abated on the death of the appellant and is disposed of accordingly.”

.

In the present case, no application has been filed by any of the relatives of the appellant within the time prescribed under the said proviso, in my view, it would be appropriate to permit the amicus curiae to make his submissions in respect of the merits of the appeal.

From the proviso to sub-section (2) of Section 394 of Cr.P.C, it is obvious, that an application for continuation of appeal and for making a statement that the applicant is the near relative, such near relative is enjoined within the time prescribed by the said proviso to approach the court as stated above, facilitating the continuance of the appeal notwithstanding the death of the appellant during the pendency of the appeal but that unfortunately not being the position, it is obvious that this court cannot decide the appeal on merits even qua sentence of fine for want of application by legal representatives.

The principle is that if the LRs did not pursue the appeal, the appeal has to abate on the death of the appellant.

The sentence of rigorous imprisonment for 10 years and for six months in default on payment of fine (i.e.substantive sentence and default sentence) stand abated on the death of the appellant, in my view, sentence of fine no more exists and, therefore, there is no reason to maintain and continue the order imposing the fine of ` 1,00,000/- as the PARVEEN KUMAR201408.22 16:48 I attest to the accuracy and integrity of this document CRA-S-858-SB-2000 -6- default clause of imprisonment in lieu of this already stands abated.

Identical view has been expressed by a Division Bench of Bombay High Court in Gopala Balu Kamble v.

State of Maharashtra, 2012(2) Bom CR7892012(3) Mh JL346 I am of the opinion that non-payment of fine would have led to further imprisonment, in sum and substance, the order to pay fine is that of sentence of imprisonment for failure to pay fine.

There appears no logic in insisting upon the payment of fine, then it would amount to going beyond the order of sentence passed by the trial Court.

Insistence on recovery may be justified where the default clause of the sentence is not there or it is in lieu of compensation awarded under Section 357 of the Code of 1973.

Therefore, the appeal abates in entirety.

Ordered accordingly.

Present appeal stands disposed of.

20.08.2014 (Paramjeet Singh) parveen kumar Judge PARVEEN KUMAR201408.22 16:48 I attest to the accuracy and integrity of this document