The State of Kerala v. Narayani Amma Kamala Devi

has based his argument in support of this conten­ tion on the principle cmbodiod in the maxim actio persanali,.~ moritur cum. persrma and has urgf'd that except where the stn,tute has stepped in to make any special provisions no proceedings either against the accused or on behalf of the accu~cd can be entertained or continued in t.he Court in respect of any crime said to have been committ.ed by a person after the death of such person. He has dra.wn our attention to Salmond's obAOITationA in his "Jurisprudence" Ele"Ventb Edition, page 442 : That criminal responsibility muAt dit• witb wrong door himself, and has urged that as all criminal proceedings 1tre personal actions, proceedin~s in connection with a crime can, in the absence of any statutory provision, neither be comm<'nced or con­ tinued against an accused person or on· his bPhalfun­ lcss hn is. in existence. It may be noted however tha.t Salmond himself goes on to say in discu~sing the matter that the modern opinion rejects the conclusion based on the received ma.xim actio personalis morit11r cum persona, that all actions for penal redress mu~t be brought against a living offender and must die with him. "'hat is more important to notice is th1't we are not concerned here with the question· of 3 S.C.R. SUPREME COURT REPORTS 947 criminal proceedings being continued or commenced against a person but with the question whether when a criminal proceeding has ended unfavourably to an accuaed person, an action can be take~ in the Court in respect thereof. On this question the common law maxim is of little, if any, use and the answer to the question must be found in other pro­ visions of law. The Criminal Procedure Code gives a right of appeal to the convicted person in certain cases. if, after the conviction and before an appeal has been filed the convicted person dies, there is no provision for any appeal on his behalf. What will happen when after an appeal has been filed by the convic­ ted person, he dies, is provided for in s. 4:ll of the Criminal Procedure Code. That section provides that every appeal against acquittal and every other appeal under Chapter XXXI except an appeal from a sentence of fine shall finally abate on the death of the appella,nt. The High .Court or the Court of Sessions ·cannot therefore exercise its appellate jurisdiction in favour of a dead person even if an appeal has been filed by him, except in an appeal from a sentence of fine. · As regards the revisional jurisdiction of the High Court there is no provision similar to s. 431. Nor is there any provision whether a revisional application can be or cannot be made in respect of an order of conviction when the convicted person is dead. We cannot but notice the impor­ tant distinction that while the appellate jurisdiction can be exercised only after an appeal is filed by the convicted person -or against an order of acquittal under s. 411 ors. 417, there is no such limitation on the Court's revisional jurisdiction. · The opening words of s. 439 of the Criminal Procedure Code, viz., "in the ca.se of any proceed­ ings the record of which ha3 been called for by itself or which has been reported for orders or 1961 Tiu Stata of Kuala •• • Narayon: Amma Kamila Devi DasJ. 1962 Tht .Slate Qj Kuala v, JVara1a11i Amina K11malr:: Dt1:i DasJ. which otherwise come8 to its knowledge", produce the result that rcvisional jurisdiction can be exer­ cised hy the High Court by being moved either by the convicted person himself or by any other person or suo morn, on tho basi8 of its own knowledge deriver! from any source whatsoever without being moved by any person at all. All that is necessary to bring tho High Court's powers of revision into operation is, such infor­ mation as makes the High Court think that an order made by a Subordinate Court. is fit for the exercise of its powers of revision. But, says llfr. Pathak, look at the words that follow in this section stating what powers can he cxerdscd. Thest\ words, viz., tho High Court may in its discretion exercise any of the powers conferred on a court of appeal by es. 42a, 426, 427, and 128 ........ make it clear that a High Court's power of nwision docs not extend to anything more than what the court of appeal can do. When therefore a court of appeal cannot give any rolief in respect of. an order of conviction and sentence of fine or anv other order made against an accused person after the accused person is dead, how cn,n the High Conrt in revision give any such relief a.fter the accuRed person's death. This argument confuses the defini­ tion of the extent of power with the conditions for the exercise of the power. The conditions for the exercise of the power of revision are laid down in the opening clauses of s. 439 which has ju8t bel'n set out above, while the next clause thn,t the High Court may exercise any of the powers conferred on a court of appeal undor s. 4:!3, s. 426, s. 427 and s. 428 ......... define the extent of the power. The fact that the extent of the power of a court in rnvision docs not extend-except as regards the power of the courts by s. 4:39 to enhancement of the sentenm to more than what the appellate court's po1rnr, does not effect tho position that while the conditions for the exercise of the powers of courts of appeal is ., 3 s.c.R. SUPREME COURT REPORTS 949 that an appeal must be preferred by the convicted person, that condition is conspicuous by its absence· where the conditions of the exercise of the powers of revision are laid down in s. 439. Tlte State of Kera/a v. Narayani A.mma Kamala Devi It appears to us therefore that in a. proper Das J. case the High Court can exercise its power of revision of an order made against an accused person 11ven after his death. This view was ·expressed by the Bombay High Court in I mperatrix v. DongaJ°i Andaji\ 1). The direct question in that case was whether the appeal lodged by a convicted person abates on his death. Melvill J. and Kem ball J. differed on this question. Melvill J. being of the opinion that on the death of the appellant the appeal abated while Kemball J. came to a contrary conclusion. Chief Justice Wes­ tropp, to whom the case was referred agreed with Melvill J. that the appeal abated. All the three !ear- , ned Judges appear to have however been of opinion that the death of convicted person would be no impediment in the way of the court's exercising its power of revision. Melvill J. observed :- "In a recent case the Chief Justice and myself did· consider the proceedings in a criminal case after the death of the convict. But the proceedings in that case had been called for under s. 297, and we were sitting as a Court of Revision. No person has any right to be heard before the High Court in the exercise of its powers of revision. The Court is.not supposed to be _acting on the applica­ tion of the convict, hut in the exercise· of its power of supervision over subordinate courts, and with a view to correcting their errors. I think that we should have power to interfere in the present case, as a Court of Revision, if we saw any error, in law, invalidating the conviction, or if the sentence were too severs (1) (1878) I.L.R. (Born.) 564. 1962 Tiu Stott of Keralo v. N.,ayani Ammo KunaU 1. tvi DOJJ. for the offence which has been he l<l by the Sessions Court to be proved. But I can Ree no error in law, nor is the sentence excessive. if the facts be as th11 Sessions Court has ·found thorn. ?le cannot therefore exercise our powers of revision ......... " Kemball J. has also observed :- "I have no doubt that, as a Court of Reviaion, wo could dispose of this caso " Chief Justice Wcstropp, after expressing his opinion that the appeal has abated, went on to observe : - "I think that the High Court lms, howcvm-, the right to call for the record, and make such order thereon as it may deem to ht> due to justice. I do not understand that my oµiniu11 is required by my brothers i\lelvill and Komball on the question whether such a case has been made as to render it desirable that the record should be brought up." It is thus clear thRt though apparently the High Court's powers of revisions were not exercised in that case, all the three judges agreed in thinking that in a proper case this could and should Le done even after the death of the convicted person. This case was considered Ly this Court in Pranab Kumar Mitra v. 'l'he Susie of IVe..st JJenyal (1). The question in Pranab Kumar Mitra's case was whether where the Pccuse<l has been sentenced to a fine and imprisonment till the rising of the Court and the convicted persorr ha<l served out his nomi­ nal sentence of imprisonment and died when his application in revision was pen<liug before the High Court, the High Court could exercise its powers uf revision in respect of the question of conviction and sentence. It was held that such powers could be (1) (1959) Supp. 1 s.c.R. 63. ' 3 S.(\R. SUPREM~ COURT REPOH.TS !J51 exercised and could not be limited on the analogy of s. 431 of the Code which did not apply to a revi­ sion case. After referring to the decision of the Bombay High Oourtin Dongaji Andaji's Case (1) and the distinction drawn bJ the learned Judges therein between the High Court's power to deal . with an appeal on the death of a convicted person and its power to exercise revisional jurisdiction even after such death, this Court went un to observe at p. 70 of the Report :- "We may assume that the Legislature was aware of the decision of the Bombay High Court, referred to above, when it enact­ ed s. 431 for the first time in the Code of 1882. If the Legislature intended that an application in revision pending in a High Court, should be dealt with on the oame footing as a pending appeal it would have enacted accordingly. But in the absence of any such enactment, we may infer that the power of revision vested in the High Court under Chapter XXXII of the Code, ·was left untouched-to be exercised according to the exigencies of each case." It appears to us that though in Pranab Kumars Case (') thIB Court was directly concerned with the effect of a convicted person's death on a pending revisional application, the judgment also expresses the view that a revisional application could be entertained even after the deat'h of the convicted person. On this authority and also for the reasons discussed earlier, we have come to the conclusion that the High Court was right in holding that the application for revision could be entertained under s. 439 of the Code of Criminal Procedure. We see no reason also to interfere with the order made by the High Court in exercise of such power of revision. The appeal is accordingly dismissed. Appe,al dismissed. (I) ( 1878) I.L.R. (Bom.) 564. (2) (1959) Supp. 1 s.c.R.63. 19(}2 The State nf Kerala v. Noraponi Amma Kafflala Devi DosJ.