Full Judgment Text
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2008
(Arising out of SLP (Crl.) No.82 of 2002)
Hari Prasad Chhapolia ...Appellant
Versus
Union of India ...Respondent
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. This appeal was filed challenging the correctness of the
judgment of a learned Single Judge of the Orissa High Court.
The appellant-Hari Prasad Chhopolia was convicted for
offences punishable under Sections 135(b)(1) of the Customs
Act, 1962 (in short the ‘Customs Act’) and Section 85 (ii), (iii),
(viii) and (ix) of the Gold (Control) Act, 1968 (in short the ‘Gold
Act’) by the trial Court. The High Court by the impugned
order set aside the conviction and sentence for the offence
punishable under Section 135(b)(1) of the Customs Act while
upholding the conviction for the offence punishable under
Section 85 of the Gold Act. Leave was granted by this Court by
order dated 17.1.2002. The matter was listed for hearing on
7.6.2007 when none appeared for the appellant. The matter
was adjourned to 12.6.2007 when it was mentioned that the
appellant-Hari Prasad Chhapolia has died. Learned counsel
for the appellant wanted to take instructions and, therefore,
the matter was directed to be listed after three weeks. The
matter was listed on 17.7.2007 when on the prayer made by
the learned counsel for the appellant the matter was
adjourned by four weeks. On 29.8.2007 the following order
was passed:
“Learned counsel for the appellant prays
for time. From the order sheet, it is clear that
on June 12, 2007 the matter was called for
final hearing before the vacation Bench. At
that time, it was stated that the appellant has
expired. The learned counsel for the appellant
sought time to get instructions. Accordingly,
the matter was adjourned. Again the matter
was placed on July 17, 2007 and on that day
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also order was passed to list the matter after
four weeks.
Even today, learned counsel for the
appellant prays for time. As a last chance, list
the matter after two weeks.”
2. On 25.10.2007 six weeks’ time was granted to the
counsel to file vakalatnama and memo of appearance on
behalf of legal heirs of the deceased appellant. It is to be noted
that by that time no application for bringing on record the
legal heirs of the deceased appellant had been filed. Again on
11.12.2007, at the request of learned counsel who appeared
for the deceased appellant, the matter was directed to be listed
after one week. On 11.6.2008, on request the matter was
directed to be listed today. It appears that an application has
been filed on 4.1.2008 for substitution for bringing legal
representatives of the appellant on record along with the
application for condonation of delay. The only ground
indicated in the application seeking condonation was that the
legal heirs of the appellant were not aware that the death of
their father has to be intimated to the counsel at Delhi for
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preparing and filing the application for substitution. The
moment they knew about this requirement they contacted
their counsel and application has been filed on 4.1.2008.
3. Learned Additional Solicitor General appearing for the
respondent submitted that there is no scope for accepting the
application. Section 394 of the Code of Criminal Procedure,
1973 (in short the ‘Code’) has no application to an appeal
before the Supreme Court. In any event, time statutorily
prescribed is 30 days. In the instant case, application has
been filed nearly after one year of the death of the appellant-
Hari Prasad Chhapolia. Therein also no explanation has been
offered as to why the application was filed after such a long
time. Accordingly, he submitted that there is no scope for
condoning delay beyond the period of 30 days.
4. In State of A.P. v. S. Narasimha Kumar and Ors. (2006
(5) SCC 683), it was noted as follows:
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“6. In Bondada Gajapathi Rao v. State of Andhra
Pradesh (AIR 1964 SC 1645) three-judge Bench of
this Court was dealing with the situation as to
whether appeal by special leave against sentence of
imprisonment abates on the death of the
accused/appellant. Three separate judgments were
rendered by the Hon’ble Judges. The principles as
can be culled out from the said decision are as
follows: (though rendered in the context of the Old
Code are equally applicable under the Cr.P.C.).
(1) Section 431 of the Old Code does
not apply proprio vigore to a case of
appeal filed with the special leave of the
Supreme Court granted under Article 136
of the Constitution of India, 1950 (in
short the ‘Constitution’) when the
appellant-accused dies pending the
appeal.
(2) But where the appeal is against
sentence of fine, the appeal may be
permitted to be continued by the legal
representatives of the deceased appellant
accused. There is no provision making
such appeals abate. If they can be
continued when arising under the Old
Code, there is no reason why they should
not be continued when arising under the
Constitution. If revision petitions may be
allowed to be continued after the death of
the accused so should appeals, for
between them no distinction in principle
is possible for the purpose of
continuance.
(3) The principle on which the hearing
of a proceeding may be continued after
the death of an accused would appear to
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be the effect of the sentence on his
property in the hands of his legal
representatives. If the sentence affects
that property, the legal representatives
can be said to be interested in the
proceeding and allowed to continue it.
(4) But where the sentence is not one of
fine but of imprisonment, which on the
death of the accused becomes
infructuous, the sentence does not affect
the property of the deceased-accused in
the hands of his legal representatives,
and therefore, the appeal, in such a case,
would abate, upon the death of the
accused.
(5) In fact that the accused was a
government servant and was under
suspension during the trial and the fact
that if the conviction and sentence were
set aside, his estate would be entitled to
receive full pay for the period of
suspension, cannot be said to affect his
estate, because, the setting aside of the
sentence would not automatically entitle
the legal representatives to the salary. It
would be extending the principle applied
to the case of a sentence of fine, if on the
basis of it appeal against imprisonment is
allowed to be continued by the legal
representatives after the death of the
appellant and for such an extension there
is no warrant. Reference was made to
Pranab Kumar Mitra vs. State of West
Bengal and Anr. (AIR 1959 SC 144).
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5. In S.V. Kameswar Rao and Anr. v. State (A.C.B. Police,
Karnool District, Andhra Pradesh) (1991 Supp (1) SCC 377), it
was inter-alia observed as follows:
“5. Section 394 of the Code of Criminal Procedure
reads that every appeal shall finally abate on the
death of the appellant. The proviso to that section
says 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 relatives, which expression is defined by
the explanation appended to this proviso may
within 30 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. In the present case, none of the relatives of
the deceased within the term of the explanation to
the proviso has approached this Court within 30
days for leave to continue the appeal. This present
application is filed nearly after a period of 10 years.
No explanation is given in this application for not
approaching the court within that prescribed period
and no sufficient cause is shown for condonation of
such undue and inordinate delay of 10 years. A
decision of this Court in P.S.R. Sadhanantham v.
Arunachalam is relied on in the petition wherein it
has been held thus: (SCC p. 145, para 7)
“Article 136 is a special jurisdiction. It is
residuary power; it is extraordinary in its
amplitude, its limit, when it chases injustice,
is the sky itself.”
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6. In Harnam Singh v. The State of Himachal Pradesh (1975
(3) SCC 343 at paras 7, 14 and 15) it was observed as follows:
“7. The appeal before us was filed by special leave
granted under Article 136 of the Constitution and is
neither under Section 411-A(2) nor under Section
417 nor under any other provision of Chapter XXXI
of the Code. Plainly therefore, Section 431 has no
application and the question whether the appeal
abated on the death of the appellant is not governed
strictly by the terms of that section. But, in the
interests of uniformity, there is no valid reason for
applying to appeals under Article 136 a set of rules
different from those which govern appeals under the
Code in the matter of abatement. It is therefore
necessary to find the true meaning and scope of the
provision contained in Section 431.
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14. 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.
15. In Bondada Gajapathy Rao v. State of A.P. the
appellant was convicted by the High Court under
Section 302 of the Penal Code and was sentenced to
imprisonment for life. He filed an appeal in this
Court by special leave but died during the pendency
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of the appeal. His sons and daughter applied for
substitution as his legal representatives contending
that the conviction of their father had resulted in
his removal from Government service and if the
conviction were set aside the estate will be able to
claim the arrears of salary from the date of
conviction till the date of his death. This Court
declined to permit the legal representatives to
continue the appeal on the ground that the claim
on the strength of which they sought permission to
continue the appeal was too remote. This decision
is distinguishable as the appeal was not from a
sentence of fine and as the interest of the legal
representatives was held to be contingent and not
direct. Even if the conviction were set aside, the
legal representatives would not have automatically
got the arrears of salary due to their father.”
7. 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.
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8. Several times the matter was adjourned at the 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.
…………………………J.
(Dr. ARIJIT PASAYAT)
……………………..….J.
(G.S. SINGHVI)
New Delhi,
June 20, 2008
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