# BONDADA GAJAPATHY RAO v. STATE OF ANDHRA PRADESH

- **Citation:** [1964] 7 S.C.R. 251
- **Court:** Supreme Court of India
- **Decided:** 1964-03-16
- **Case number:** Criminal Appeal No. 179 of 1961
- **Bench:** A. K. Sarkar, M. Hidayatullah, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bondada-gajapathy-rao-v-state-of-andhra-pradesh-3112
- **Pages:** 16

## Headnote

Criminal Trial-Appellant sentenced to imprisonment for
life-Death during the pendencu of appeal-Heirs whether can
prosecute appeal-Code of Criminal Procedure, 1898, (Act 5 of
1898), s. 431, 435, 439-Constitution of India, Art. 136.
The appellant was convicted under section 302 of the Indian
Penal Code and sentenced to imprisonment for life by the High
Court for the offence of the murder of his wife. He was granted
special leave to appeal by this Court. During the pendency of
the hearing of this appeal the appellant died. After his death
his sons and daughter applied to this Court for permission to
continue to prosecute the appeal.
It was pleaded by the legal representatives of the appellant
that though that sentence of imprisonment could no longer be
executed, it still affected the property of the deceased and the
legal representatives were, therefore, interested in the appeal
and should be permitted to continue it. The appellant, who held
a high office in the Government of Andhra Pradesh had been
Sl/spended during the investigation of the charge against him
arid he was dismissed from serv1ce under certain service rules
on his conviction. During this time the appellant had only been
given a smti.11 allowance. On thes·e facts it was pleaded that if
the conviction was set aside, the estate of the deceased would be
entitled to receive the full salary from the Government.
Held (Per Sarkar, J.): (i) Neither s. 431 nor the cases mentioned can be said to apply to the present case proprio vigore,
for the present is not an appeal under the code of criminal procedure which is dealt with by s. 431 nor is it a revisional application like the one which came up for consideration in Pranab
Kumar Mitra's case, while as for the English case, it is only of
persuasive value.
Pranab Kumar Mitra v. The State of West Bengal, [1959]
S:uP.P· 1 S.C.R. 63 and Hodgson v. Lakeman, [1943] L.R. K.B. 15,
d1stmguished.
(ii) The principle on which the hearing of a proceeding may
be continued after the death of an accused would appear to be
the effect of the sentence on his property in the hands of his legal
representat!ves. If ! '.:e sentence affects that property, the legal
representatives can be said to be interested in the proceeding
and_ ~!lowed t<;> cont_ii:ue it. This principle applies in appeals,
revlS!ons, and m petitions under Art. 136 of the Constitution.
A sentence of fine no doubt affects the property. In the
present case, however, the sentence was not of fine but of imprisonment which on the death of the accused has become in-
!ruct?ous. In t~e present. case the effect of the sentence imposed
m this case. bemg set aside would not directly entitle the legal
representatives to the salary. They will have to obtain necessary
orders from the Government for the purpose.
1964
March 16
1964
Botodada Gajapathy
Rao
v.
Stale of Amihra
Prade•h
252
SUPREME COURT REPORTS
[19641
Held (Per Hidayatullah, J.): (i) This was an appeal against
a sentence of imprisonment and an appeal of this character
would normally abate on the death of the appellant because a
criminal prosecution is concerned primarily with the punishment of rn offender and not with the trial of an abstract issue
about the truth or falsity of a prosecution case. The same principle must apply to appeals after conviction, except in so far
as .a judgment already rerdered touches assets which would
come to the legal representative. In so far as personal punishment (other than a fine) is concerned that stands dissolved by
the death of the offender and an appeal to get that punishment
set aside becomes infructuous and abates.
Pranab Kumar Mitra v. The State of West Bengal, [1959)
Supp. 1 S.C.R. 63, Pritam Singh v. State, [1950] S.C.R. 453, distinguished.
Hodgson v. Lakeman, [1943] L.R.K.B. 15, Baghis v. Rowes
[1955] 1 Q.B.D. 573, referred to.
(ii) The prlinciple laid down in Pranab Kumar Mitra v. The
State of West Bengal and Another and in Pritam Singh v. The
State has no application to the present matt

## Text

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• '7 S.C.R.
SUPREME COURT REPORTS
251
BONDADA GAJAPATHY RAO
v.
STATE OF ANDHRA PRADESH
[A. K. SARKAR, M. HIDAYATULLAH AND J. R. MUDHOLKAR, JJ.]
Criminal Trial-Appellant sentenced to imprisonment for
life-Death during the pendencu of appeal-Heirs whether can
prosecute appeal-Code of Criminal Procedure, 1898, (Act 5 of
1898), s. 431, 435, 439-Constitution of India, Art. 136.
The appellant was convicted under section 302 of the Indian
Penal Code and sentenced to imprisonment for life by the High
Court for the offence of the murder of his wife. He was granted
special leave to appeal by this Court. During the pendency of
the hearing of this appeal the appellant died. After his death
his sons and daughter applied to this Court for permission to
continue to prosecute the appeal.
It was pleaded by the legal representatives of the appellant
that though that sentence of imprisonment could no longer be
executed, it still affected the property of the deceased and the
legal representatives were, therefore, interested in the appeal
and should be permitted to continue it. The appellant, who held
a high office in the Government of Andhra Pradesh had been
Sl/spended during the investigation of the charge against him
arid he was dismissed from serv1ce under certain service rules
on his conviction. During this time the appellant had only been
given a smti.11 allowance. On thes·e facts it was pleaded that if
the conviction was set aside, the estate of the deceased would be
entitled to receive the full salary from the Government.
Held (Per Sarkar, J.): (i) Neither s. 431 nor the cases mentioned can be said to apply to the present case proprio vigore,
for the present is not an appeal under the code of criminal procedure which is dealt with by s. 431 nor is it a revisional application like the one which came up for consideration in Pranab
Kumar Mitra's case, while as for the English case, it is only of
persuasive value.
Pranab Kumar Mitra v. The State of West Bengal, [1959]
S:uP.P· 1 S.C.R. 63 and Hodgson v. Lakeman, [1943] L.R. K.B. 15,
d1stmguished.
(ii) The principle on which the hearing of a proceeding may
be continued after the death of an accused would appear to be
the effect of the sentence on his property in the hands of his legal
representat!ves. If ! '.:e sentence affects that property, the legal
representatives can be said to be interested in the proceeding
and_ ~!lowed t<;> cont_ii:ue it. This principle applies in appeals,
revlS!ons, and m petitions under Art. 136 of the Constitution.
A sentence of fine no doubt affects the property. In the
present case, however, the sentence was not of fine but of imprisonment which on the death of the accused has become in-
!ruct?ous. In t~e present. case the effect of the sentence imposed
m this case. bemg set aside would not directly entitle the legal
representatives to the salary. They will have to obtain necessary
orders from the Government for the purpose.
1964
March 16
1964
Botodada Gajapathy
Rao
v.
Stale of Amihra
Prade•h
252
SUPREME COURT REPORTS
[19641
Held (Per Hidayatullah, J.): (i) This was an appeal against
a sentence of imprisonment and an appeal of this character
would normally abate on the death of the appellant because a
criminal prosecution is concerned primarily with the punishment of rn offender and not with the trial of an abstract issue
about the truth or falsity of a prosecution case. The same principle must apply to appeals after conviction, except in so far
as .a judgment already rerdered touches assets which would
come to the legal representative. In so far as personal punishment (other than a fine) is concerned that stands dissolved by
the death of the offender and an appeal to get that punishment
set aside becomes infructuous and abates.
Pranab Kumar Mitra v. The State of West Bengal, [1959)
Supp. 1 S.C.R. 63, Pritam Singh v. State, [1950] S.C.R. 453, distinguished.
Hodgson v. Lakeman, [1943] L.R.K.B. 15, Baghis v. Rowes
[1955] 1 Q.B.D. 573, referred to.
(ii) The prlinciple laid down in Pranab Kumar Mitra v. The
State of West Bengal and Another and in Pritam Singh v. The
State has no application to the present matter because there is
no analogy between an appeal by special leave and a revision
under the. code. The present case is not a case where the legal
representatives after the death of the offender have to meet the
liability of a fine or are required to protect the assets which
they claim should reach them. In the present case no claim of
the petitioners is jeopardized directly, by the judgment. Their
claim is dependent upon the administrative action of Government which may not proceed upon the result of criminal prosecution. This appeal was only concerned with the correctness or
otherwise of the conviction and not with any monetary claims
depending upon the result of the appeal. In such a situat:on the
ordinary rule that a criminal proceeding against a person comes
to an ·end on his demise must apply also to special appeals in this
court, such as this, even though the provisions of the Criminal
Procedure Code may not be directly applicable.
Held (Per MudhqJkar, J.): (i) The decision of this court in
Pranab Kumar Mitra v. The State of West Bengal has no bearing upon an appeal brought to this court by special leave. It is
no doubt true that the power conferred by section 435 of the
Code on the High Court and certain other courts and by Article
136 of the Constitution on this Court is discretionary, Under section 439 of the Code the High Court can exercise any of the
powers conferred on a court of appeal by sections 423, 426, 427
and 428 or on a court by s. 338 and has also the power to enhance
the sentence. Under Section 435 of the Code, the High Court
can suo motu call for the record of any inferior court but this
power cannot be exercised by this court under article 136 of the
Constitution. Therefore there is a fundamental difference between the power of the High Court in revision and the power of
this Court in Art. 136 of the Constitution.
Pranab Kumar Mitra v. The State of West Bengal, [1959]
Supp. 1 S.C.R. 63, distinguished.
(ii) In a criminal matter the issue is personal between the
accused person and the State rnd the right of appeal is also
personal to the appellant. There is admittedly no express provision permitting the substitution of legal representatives of a
deceased appellant in a criminal appeal brought to this Court by
7 S.C.R.
SUPREME COURT REPORTS
253
special leave. The policy of the law discernible from s. 431 of the
1964
Code has to he borne in mind. The policy under section 431 of B
--: ,~,
the Code is that evecy criminal appeal under chapter XXXI will °"'4daR°:j•,..-•
abate except an appeal from a sentence of fine. There is no proviv.
sion which prescribes the continuation of the appeal on the
Stal• of All<IAN
death of the appellant in cases where the sentence is of impriPraduh
sonment.
The interest of the legal representatives in the present case
is not a direct interest in the sense that it cannot arise out of the
decision of this court even if it is in favour of the appellant. The
only interest which the applicants have is a contiruient <me and
is not one which could flow directly out of the ultimate decision
of this Court.
Hodgson v. Lakeman, (1943) L.R.K.B. 15, Regina v. Rowe,
(1955) (1) Q.B.D. 573, Hesketh v. Atherton, Leach v. Wanstead
School Board, Siberry v. Connolly, Constantine v. Hlingworth,
Jones v. Gallowfield, Rivers v. Glasse, (a!J cited in Short and
Mellor, Practice on the Crown Side of the King's Bench Division 2nd Ed. at p. 425), United States v. Mook, 125 F2d 706, The
State of Kerala v. Narayani Amma Kamala Devi, (1962] Supp. 3
S.C.R. 943 and lmperatrix v. Dongali Andaji, (1879) I.L.R. Born.
064, referred to and discussed.
(iii) The Legislature has by limiting in section 431 of the
Code the survival of appeals to appeals against sentences of fine
has chosen to recognise only one kind of interest and no other.
This Court in exercise of its inherent powers or discretionary
powers would not be acting according to correct legal principles
in recognising a kind of interest which the legislature has not
chosen to recognise. In the circumstances the applicants ought
not to he granted special leave to prosecute the appeal.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 179 of 1961. Appeal by special leave from the judgment
and order dated October 31, 1960, of the Andhra Pradesh
High Court in Criminal Appeal No. 161 of 1960.
K. R. Chaudhuri, for the appellant.
A. S. R. Chari, B. R. G. K. Achar, and R. N. Sachthey,
for the respondent.
March 16, 1964. The following judgments were deliveredSARKAR, J.-This is an appeal from a sentence of impriSarw, J.
sonment for life imposed on the appellant upon his conviction
for tile offence of the murder of his wife. The appeal was filed
with the special leave of this Court granted under Art. 136 of
the ConstitutiO'n but the appellant died pending the appeal.
His legal representatives now seek leave to continue the
appeal.
There would seem to be authority for the proposition that
revision petitions and some appeals from sentences of fine
might be continued by his legal representatives on the death
254
SUPHEME COUHT REPOHTS
[1964]
111a1
of the accused pending the proceeding: see s. 431 of the Code
lB _,_d aa·
th of Criminal Procedure and Pranab Kumar Mitra v. The State
Orw.u a
'J<tpa. Y
.
·
·
J f
Rao
of West Bengal('). It appears that m England appea s rom
v.
similar sentences are permitted to be continued by the execu-
.Stat•pt0;J:';!.hra
tors of the deceased appellant: see Hodgson v. Lakeman('). It
is true that neither s. 431 nor the cases mentioned can be said
.Yarkar, J.
to apply to the present case proprio vigore, foe the present is
not an appeal under the Code which is dealt with bys. 431 nor
is it a revisional application like the one which came up for
consideration in Pranab Kumar Mitra's case, while as for the
English case, it is only of persuasive value. All the same however I think it must now be held that appeals from sentences
of fine may be permitted to be continued by the legal representatives of the deceased appellant. First, I find no provision
making such appeals abate. If they can be continued when
arising under the 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. It is true
that the Code of Criminal Procedure which creates the revisional powers of a Court provides that such powers ma.y be
exercised suo motu but it does not seem to me that Pranab
Kumar Mitra's case(') was based on this for on that ground
all revision cases should have been permitted to be continued
and the permission should not have been confined to cases of
fine. Indeed in that case this Court proceeded on the basis that
there was no statutory provision applying to the case. It observed, "even in the absence of any statutory provisions, we have
held, ............ that the High Court has the power to determine
the case even after the death of the convicted person, if there
was a sentence of fine also imposed on him, because that
sentence affects the property of the deceased in the hands of
his le1;al representative".· A sentence of fine affects property
equally when the case is taken further up in appeal or in revision. If it is just and proper to continue the hearing in one case
after the death of the accused, it would be equally so in the
other case.
The principle on which the hearing of a proceeding may
be continued after the death of an accused would appear to 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.
A sentence of fine no doubt affects the property. In the
present case, however, the sentence was not of fine but of imprisonment which on the death of the accused has become
(') [1959] 1 S.C.R. 6:t.
(') [1943] L.R.K.B. 15.
7 S.C.R.
SUPREME COURT REPORTS
255
infructuous. There is no one now who can be imprisoned. It is,
1964
however, said that though that sentence can no longer be exe- Bowlada Gajopalh~
cuted. it still affects the property of the deceased and the legal
Rao
representatives ~re, therefor~. interested in the. appe~ an~ State 0JA.ndhra
should be permitted to continue 1t. The matter 1s put m this
Pradesh
way. The appellant, who held a high office in the Government
of Andhra Pradesh had been suspended during the investigaSa,kar, J ·
tion of the charge against him and he was dismissed from
service under certain service rules on his conviction. During
this time the appellant had only been_given a small allowance.
It was said that if the conviction wasset aside, the estate would
be entitled to receive the full salary from the Government.
It seems to me that this contention is not accurate. It may
be that if the sentence is set aside that may assist the legal
representatives in their effort to obtain the full salary to which
the deceased's estate would have been entitled. But the effect
of the sentence imposed in this case being set aside would not
directly entitle the legal representatives to the salary. They
will have to obtain necessary orders from the Government for
the purpose. It has not been shown to us that such order will
.automatically follow the setting aside of the conviction.
Neither has it been shown that the legal representatives cannot
move the Government to pass such orders on the ground that
the Correctness cl the conviction could not be tested because
cf the death of the appellant. For these reasons I am unable to
hold th<t the justice of the case requires that the legal representatives of the deceased should be permitted to continue the
appeal. It wo:ild be extending the principle applied to the case
of a sentence of fine, if on the basis of it this appeal was aliowed to be continued by the legal representatives after the death
of the appellant and for such an extension I find no warrant. , ·
In my view, for these reasons the legal representatives are
not entitled to continue the appeal. That being so and as the
sentence was one of imprisonment which would not affect any:
one after the death of the accused, it cannot be said that there
is anyone interested in the appeal. There is nc question, therefore, in such a case for proceeding further with the appeal. /
HloAYATULLAH, J.-The appellant was convicted urider
Hida.vatullah, J,
s. 302 of the Indian Penal Code and sentenced to imprisonment for life by the High Court of Andhra Pradesh.
He was granted special leave to appeal by this Court. During
the .pendency of this appeal the appellant died on August 30,
1963. After his death his sons and daughters applied to this
Court on October 5, 1963 for permission to continue to prosecute the appeal. Their petition is all that we are concerned
wit!\ at the present moment.
The appellant was working as Superintending Engineer
(Electricity) in the service of the Government of Andhra Pradesh. The case against him was that on August IO, 1959 he
256
SUPREME COUHT REPORTS
[1964]
!964
committed the murder of his wife by shooting her in the back
Bo.dada Gajapathy with a revolver. He was acquitted by the Sessions Judge of
Rao
Krishna Division, Masulipatnam but, on appeal by the State
v.
Government the order of acquittal was set aside and he was
State of Andh.ra
I
•
Pradesh
convicted and sentenced as above. In view of the appe !ants
death we are of course not interested any further in consider-·
HirlayatuUah, .T. ing the details of the offence, if any, unless we allow the heirs
of the appellant to prosecute the appeal after his death and
this is precisely what the present petitioners claim they are entitled to do. It is admitted, however, that no analogous contention was ever raised in this Court, though appeal on the
death of a sole appellant were, before this, treated as abaled.
One would expect that an appeal of this character would normally abate on the death of the appellant because a criminal
prosecution is concerned primarily with the punishment of an
offender and not with the trial of an abstract issue about the
truth or falsity cf a prosecution case. The maxim actio persona/is moritur cum persona is often invoked in this behalf. The
Criminal Procedure Code in s. 431 also provides that all
appeals filed under s. 411-A sub-s. 2 or s. 417 shall finally
abate on the death of the accused and every other appeal under
Chapter XXXI shall finally abate on the death of the appeflant, except an appeal against a sentence of fine. The section
cannot cover a. case such as the present because this appeal
was not filed under any of the sections mentioned in s. 431 or
under Chapter XXXI.
It is contended that without the aid of a provision like
s. 431, Criminal Procedure Code, the appeal must be treated
as continuing and it is pointed out that for this reason and for
the additional reason that the powers of revision can be exercised suo motu this Court allowed legal representatives to
continue to prosecute criminal revisions under s. 439 of the
Code in Pranab Kumar Mitra v .. The State of West Bengal and
Another(') and Pritam Singh v. The State('). It is urged that on
·~·
a parity of reasoning this appeal can be continued by the heirs.
It is not my purpose to consider, whether in the absence of
any direct injury to the living every criminal proceeding must
come to an end after the death of the accused whether before
his conviction or after. But there must always be some discernible reason for permitting another person to continue an appeal
whether civil or criminal after the death of the appellant. An
appeal is not a heritable asset and does not revolve as a matter
of course upon an executor or heir. Even under the civil law
an express provision is required for substitution of another
person in the place of the person deceased before the. appeal
can be continued and this is again subject to whether the cause
of action survives or not. The same principle is again to the
(') [1959] (I) S.C.R. 63.
(')° [1950] S.C.R. 453.
~-.--7 I'.,,.,--,,-.·_-..
' .. ~
"· -
, ..
..
\
-----·------ --
7 S.C.R.
SUPRE~IE COURT REPORTS
257
forefront in s. 431 when it allows an appeal in respect of fine
!!_64
to be continued but not appeals involving imprisonment. The Bondada a ajapatky
intention there too appears to be to afford only those persons
Rao
a right whose interests are directly. jeopardized by the judgState ofAnd/mJ
ment. In so far as personal punishment (other than a fine) is
Praduh
concerned that stands dissolved by the death of the offender
and an appeal to get that punishment set aside
ecomes
.
b
HidayalullaA, J.
infructuous and abates.
·
. .
The only question in"this case. is .whether the principle
laid down in the two ·cases of this Court cited above should
govern special appeals or the principle underlying s. 431. It
may be said at once that the former is not a direct precedent
applicable to the present matter because there is no analogy
between an appeal by special leave and a revision under the
. Code. The latter can be suo motu but not the former. The petitioners claim that the father, if he· were acquitted, would have
.been entitled to claim his pay for the period upto his death
since on his conviction he was ·removed from service by the
Government and the amount thu5 involved is Rs. 40,000 /-.
The petitioners' say tha.t if the( appeal were now allowed. they
would be able to ask for this amount and in this way claim an
interest in the appeal. This is nota case where the legal representatives after the death of ·the offender · have to meet the
liability of a fine or are required· to protect the assets which
they claim should reach them. This is a case where the petitioners claim to have the judgment of the' High Court reexamined so that they may be· able to prefer a claim to the ·
salary to which their father would have been entitled if he had
been a.cquitted of the criminal charge .. In my judgment, no
claim of the petitioners is jeopardized directly by the judgment.
Their claim is dependent upon the ·administrative action of
Government which may not proceed upon the_ result of the
criminal prosecution. In other words, the claim' on the strength
· of which the present petitioners seek to join in this appeal is ·
too remote and not directly consequential. upon the issue to
be tried. The appeal was only. concerned With the correctness
or otherwise of the conviction and not with ·any monetary
claims depending upon the result of the appeal: In such a
. situation the ordinary rule that a criminal proceeding against
a person comes to an end on his demise must apply also to .
special appe:ils in this Court, such as this,· even though the ·
provisions of the Criminal Procedure Code may not be· directly
applicable.
· ·
·
·
At the hearing counsel cited . cases. from . the English
Courts and the Supreme Court of the United States. The English cases referred to are collected in Short & Mellor's Practice
of the Crown Office and Griffith's Guide to Crown Practice and
the cases of the United States are referred to in Annotations
L/P(D)!SCI-9 ..
'..,.- '.-..~,, '_...<· ~"': '. \- '
\,' i
\
,
' ~· '
'-. ~ -·--
1
-/,
' -
I
\ .
258
',-,
~ !
,,
SUPREME COURT REPORTS
.· [1964]
'..:·~196'
in 87 Lawyer's Edition 1234 and 1 Lawyer's Editi~n II Series
..;.JJo;.,;;.aaaajaPdhy 1879. The English-practice-appears to be that there must be a.
·
• .. R""
·direct monetary 1iabilit~ attaching to the living by reascns of
· siai; ~/A;,,ihra · the impugned judgment before they can be allowed to continue
·Prade•h
· an appeal filed by a dead person. See Hodgson v. Lakeman(')
.:-- --
· and Regina v. Rowe('). The American practice also appears to
Hid=»,,.llak J. · b
h
·
·
·
. ·
·
'7
'
~ et esame.
.·
.
There is good reason for holding. that a criminal prosecu-
. tion in which the State is anxious to bring an offender to book
·_with-a view to getting him punished ·for.a_crime comes to an
-end-on the death of the person arraigned;· The same principle
must apply also to appeals after conviction, except .in so far
as a judgment already rendered touches assets which· would
come to the -legal representatives or the executor· as the case·
may be.· Beyond this it is not. possible to conceive of remoter
· interests because if the law were ·to take into account such
; remote interests every appeal would have to be continued after
c the death of the appellant. In my judgment, the present peti-_
- tioners do not claim any direct interest and the appeal must,
·_ theref()re,·be taken to have abated.- I agree that the petition be
'-dismissed. and the appeal hdd to.have abated.
..
. . .'. -
Mwlholkar, J. :- . "MuDHOLKAR,.J;.::_This° appeal raises an friteresting and
- important qtiestiOn~ It is whether _the heirs at law of a deceased
· petson· who had .brought· an appeal to this Court. by special
- leave in which he. had challenged his conviction and sentence
~-for· an offence, aie entitled to prosecute the· appeal after his
; death during' the· pendericy of the appeaL The applicants are
· the children of· the decea5ed who was a Superintending Engi-
' neer (Electricity) in the service of the Government of Andhra
; Pradesh; He was charged with an offence_ under s.-302; Indian
; Pi:"aJ .Code for having· committed -the ~μrder of his wife by
: shooting lier~ with a· revolver. During the investigation of the
offence he ·was placed ·under suspension with effect· from
-. August ·10. ]959 and was allowed subsistence allowance for
. some time. His defence at'the. trial was that while his wife was
· picking _up the revolver from the teapoy on which he had kept
it, suspecting that.he would shoot himself with it, it went off
; accidently and killed· her" This defence was a.ccepted by the
·Sessions Judge and he was acquitted. On appeal by the State
: tl)e ,High. Court of· Andhra Pradesh set aside the acquittal and ·
~convict~d'him of an'offencc under s. 302, I.P.C. and sentenced
him to undergo imprisonment for life. He thereupon sought
and obtained special leave from this Court to prefer an appeal.
During the pend_ericy of the appeal he died. According to the
-_applicants a sum of Rs. 40,000 /- would be due to the. deceas-
: ed, being -the difference between 'the ' Subsistence allowance
'actually paid _by the Government to him and the total emolu-
. : ments that would have been payable to him from the da.te of
(') [1943] K.B. 15.
(') [1955] 1 Q.B.D. 573
7 S.C.R.
SUPREME COURT REPORTS
259
suspension till his death and that they as his legal heirs would
1964
b~ entitled to get this amount in case the conviction and sen- Bondada Gajapaih11
tence are set aside by this Court.
Rao
v.
In supper! of his contention that the appeal has not aba.tState 01 Andhra
Pradesh
ed by reason of the death of the appellant Mr. K. R. Chaudhuri points out thats. 431 of the Code of Criminal Procedure
Jfudholkar, J.
(hereafter referred as the Code) which speaks about appeals is
limited in its application to appeals under Ch. XXXI of the
Code and would not fetter the powers of this Court under
Art. 136 of the Constitution to hear an appeal brought before
it by special leave even though the person who brought it is no
longer alive. It is no doubt true that s. 431 of the Code only
says that appeals under s. 411A, sub-s. (2) ands. 417 shall
finally abate on the <lea.th of the accused and every other
appeal under Chapter XXXI except an appeal from a sentence
of fine shall fina!ly abate on the death of the appellant. It does
not, therefore, in terms apply to an appeal permitted to be
preferred by this Court in exercise of its discretion under Art.
136 of the Constitution. The argument of Mr. Chaudhuri is
that the power conferred upon this Court by Art. 136 is wide
and discretionary and is analogous to that conferred upon the
High Court by s. 439 read with s. 435 of the Code. Therefore,
upon an analogy of the decision cf this Court in Pranab
Kumar Mitra v. The State of West Bengal and another(') this
Court has the power to hear the appeal and to permit the applicants to prosecute it. He does not contend that the applicants have a right to be brought on the record in place of the
deceased appellant but submits that to meet the ends of justice
it would be right and proi>er to permit the applicants to prosecute the appeal because if it succeeds they will be able to claim
from the Government the arrears with respect to salary due to
their deceased father from the Government.
It seems to me that the decision upon which reliance has
been placed has no bearing upon an appeal brought to this
Court by special leave. It is no doubt true that the power conferred by s. 435 of the Code on the High Court and certain
other courts and by Art. 136 of the Constitution on this Court
is discretionary. In so far as the High Court and certain other
courts are concerned the discretion is to call for and examine
any record of any proceeding before an inferior criminal court
situate within the local limits of its jurisdiction for the purpose
of satisfying itself as to the correctness, legality or propriety
of any finding, sentence or order passed by the inferior court
and as to the regularity of any proceeding of such court. Under
s. 435 these courts have power to act in this manner suo motu
and s. 440 provides that no party has a right to be heard either
(') (1959] Supp. 1 S.C.R 63.
L'd)D)ISCl-9 a)
/
,.
260
SUPREME COURT REPORTS
[1964]
1964
personally or by a pleader before such court, with one excep-
~a- 'Pfllh tion. That exception is that the High Court cannot make an
R:;,"
Y order under s. 439 of the Code to the prejudice of an accused
T.
person unless he is given an opportunity of being heard either
stm;:!,,i1,"J!'lwa
personally or by pleader in his defence. When the record comes
before the High Court it may in its discretion exercise any of
MU<Jlwlkar. J.
the powers conferred on a Court of appeal by sections 423,
426, 427 and 428 or on a Court by s. 338 and has also the
power to enhance the sentence. Article 136 of the Constitution
confers discretion upon this court whether to grant special leave
or not. But this Article does not confer any power upon this
Court to call for the record of any court or tribunal suo motu
for the purpose of examining it and making an appropriate
order. It only empowers this Court to grant leave to a person
to bring his appeal before it and afford him an opportunity of
showing such error as may be existing in the judgment or
order appealed from. There is a fundamental difference bet,
ween a power which is exercisable by a Court suo motu and a
power which can be exercised only when it is moved in that
behalf by a party. For the exercise of suo motu power the appearance of a, party before the Court concerned is not a prerequisite. Indeed as s. 440 provides, it is for the Court to decide
whether or not to allow the party to appear before it and be
heard. But of course the principle of natural justice would
preclude a court even in such a case from making an order to
the prejudice of a party without giving the party an opportunity to be heatd. In so far as an appeal is concerned, by whichever way it is brought, whether as of right conferred by a
prdVision in the Constitution or by any other law or by special
leave the appellant has a right to be heard and a right to prosecute the appeal. A Court exercising suo motu powers may
choose at any stage to drop the proceeding and not proceed to
examine the records at all. But as long as an appeal is pending
before a Court and there is a person legally competent to
prosecute it and there is no legal impediment to its being heard,
the Court has no discretion to refuse to go on with the appeal
even though initially it may have been brought before it by its
leave. As soon as the leave is granted a right accrues in favour
of the party who has been granted leave. It may be that where
this Court finds that leave has been improperly. obtained or
given it may revoke the leave. But that is quite different from
saying that without revoking the leave it can drop the appeal.
This distinction between revisional powers and appellate
powers has been adverted to in the decision relied upon(') at
p. 70. Sinha, J. (as he then was) has observed:
"The revisional powers of the High Court vested in it
by s. 439 of the Code, read with s. 435, do not
create any right in the litigant, but only conserve
the power of the High Court to see that justice is
(') [1959] Supp. l S.C.R. 63.
(
'1 S.C.R
SUPREME COURT REPORTS
261
done in accordance with the recognized rules of
1964
Criminal Jurisprudence, and that subordinate BOfltlMa llajapallr
criminal courts do not exceed their jurisdiction, or
Rao
abuse their powers vested in them by the Code.
Stat ;f°.<111<1Ma
On the other hand, as already indica.ted, a right of
;:m,.h
appeal is a statutory right which has got to be
recognized by the courts, and the right of appeal,
Mudholkar, J.
where one exists, cannot be denied in exercise of
the discretionary powers even of the High Court."
Thus, when the special leave granted by this Court has not
been revoked it can exercise with respect to the appeal before
it what may be called appellate powers. While hearing an
appeal from the decision of a High Cburt, this Court will,
therefore, be competent to exercise only such powers as the
High Court itself could exercise in relation to the appeal. In so
far as the procedure for hearing a criminal appeal by special
leave is concerned this Court has framed certain rules. Order
XXI of Supreme Court Rules, 1950 contains those rules. Rule
23 of that Order provides for the entering of appearance by
parties in the aepeal. Rule 24 provides for the filing of statements of case by the parties. Rule 25 provides for setting down
the appeal for hearing. Rule 26 empowers the Court to direct
the engagement of an Advocate at the cost of the Government
in a proper case where the accused person is not represented
by an Advocate ·on record of his choice. Rule 27 provides for
giving notice to the accus~d where he is not represented on
the date fixed for the hearing of the appeal and permits the
accused person if he so wishes to present his case by submitting his argument in writing and provides for the consideration
of the written argument at the hearing. Sub-rule (2) of that rule
dispenses with necessity of production of the accused person
in custody at the hearing of the appeal. There is no express
rule which states as to what has to be done where the accused
person who is an appellant is not present or represented at
the hearing of the appeal. Order XLV, rule 5, however, preserves the inherent power of the Court to make such orders as
may be necessary to meet the ends of justice or to prevent the
abuse of the process of the Court. Thus this Court has the power
to prevent the abuse of its process and it will be an abuse
-
of its process if the appellant despite service of notice of the
~ate of hearing chooses to remain absent at the hearing. Now,
1ust as the Court can, under r. 18 of 0. XXI dismiss an appeal
for non-prosecution where the appellant refuses to take the
necessary steps f?r ~ringing the appeal to hearing, it must be
~eemed to have s1.milar power to dismiss it where the appellant
is not pre~ent or 1s not represented. Where the absence of the
appellant is due to t!Je fact that he is dead it would still be a
case ?f non-prosecution and, therefore, this Court would have
the nght and the duty to dismiss the appeal. Since the power
262
SUPREME COURT REPORTS
[1964}
1964
to prosecute the appeal inhered in the appellant alone, no one
BOllllada Gadapathy else can claim to exercise it unless the law conferred such a
Rao
right upon that other person. This the law may do expressly as
v.
it has done in 0. XXII of the Code of Civil Procedure or
State ~f .Aoohra
f
h
Praduh
impliedly as it has done ins. 431 of the Code. Apart rom t e
fact that in a criminal matter the issue is personal between the
Mudlwlhar, J. accused person and the State the fact remains that the right of
appeal is also personal to the appellant. It cannot be allowed
to be exercised by another unless there is some provision in
Jaw which would permit it to be ~xercised or unless ·such a
course is permissible by reference to a principle. There is admittedly no express provision permitting the substitution of
the legal representatives 'of a deceased appellant in a criminal
appeal brought to this Court by special leave. We ha.ve, however, to bear in mind the policy ofihe Jaw as enacted ins. 431
of the Code. The policy is that every criminal appeal under
chapter XXXI will abate except an appeal from a sentence of
fine. Thus, instead of there being any principle on the strength
of which the legal heirs of a person could be allowed to prosecute after his death an appeal brought by him challenging his
conviction and sentence of imprisonment the policy of the Jaw
is definitely opposed to it. Moreover, only a person who can
properly represent a deceased appellant can be allowed to be
brought on record in his pla.ce and prosecute the appeal. That
is the principle upon which the provisions of 0. XXII of the
Code of Civil Procedure are based. That again is the principle
followed by the Courts in England in allowing appeals in
which the challenge was to a fine imposed upon the appellant
to be continued by the executors and administrators of the
deceased appellant. As an instance of this would first refer to
Hodgson v. Lakeman('). In that case Viscount Caldecote C.J..
permitted the executors of the deceased appellant claiming an
interest in the appeal against his conviction and sentence of
fine to prosecute the appeal. The fine, though a small one,
would have been a burden on the estate and thus the executors
could be said to have had an interest in having that burden
removed. This case was distinguished in Regina v. Rowe(')
In that case the widow of thl' deceased appellant sought lea.ve
to prosecute the appeal in which he had challenged his conviction on four counts of obtaining money by false pretences and
the sentence of imprisonment to 18 months. The ground on
which the widow's application was supported was that the
conviction against her husband affected her chances of employment and her position among her friends and that if
interest is the test, then the widow also had an interest. This
argument was repelled by Lord Goddard C.J. who said that
the Court cannot take notice of that because the interest she
(') [1943] 1 K.B. 15.
(') [1955] 1 Q.B.D. 573.
'1 S.C.R.
SUPREME COURT REPORTS
263
has was not a pecuniary one. It was further urged before the
1964
Court that where any person might be prejudiced b)' a convic· Bondada GaJapaJhy
tion against a deceased person, and an appeal was lodged
RM
before the death of that person, the Court should allow the St t
vAndhra
appeal to be continued by tha.t person so that if there had been
"~:£i .. h
a miscarriage of justice and the heirs of the deceased were
living under the shadow of the fact that their relative had died
Mwlholkar, J.
a convict, the interests of justice would require that the appeal
be heard. To this argument the answer of the learned Chief
Justice was that this would be a case for making an application
for a free pardon. In the course of the judgment he observed:
" ............... we cannot allow a widow or an executor
or an administrator of a deceased person to appeal
to this court unless they can show a legal interest.
If a person is sentenced to pay a fine and dies having appealed, or even if he dies after payment of
the fine-it might be immediately afterwards-it
may be that the court would allow executors or
administrators to appeal merely on the ground that
if the conviction were quashed they could recover
the fine for the benefit of the esta,te of the deceased
which they are bound to administer. In Hodgson
v. Lakeman(') to which our attention was called,
which was a case before the Divisional Court, but
the principle would be the same, the appellant was
dead, and the court allowed the executors to continue the . appeal because there was a . pecuniary
interest. Supposing, as sometimes happens, a man
is convicted on indictment and fined £500; the
money has to be paid, and the Crown can recover
that money whether he is alive or dead, for it can
recover it against his estate, and, therefore, it
would be an injustice if the executors were not
allowed to appeal and to say tha.t the conviction
was wrong, because, if it was wrong, the money
would be saved.
It may be. that it is artificial to say that if there is a
pecumary pe1:1aity an appeal might lie, whereas if
corporal pumshment or imprisonment is imposed
th~re cannot be an appeal, but at the same time I
do not see any ground on which we can say in the
present case that anybody has an interest. It may
be tha.t the widow would be very glad to have her
hus~and's name ~!eared, ~ut we cannot take any
vot1ce of that sentunental mterest. There is nobody
affected now by the judgment of the court because
(') (1943] K. B. 15.
1964
&,v.la,da Gajapalhy
Rao
v.
Biol< of Andhra
Pradesh
MudholTcar, J.
264
SUPREME COURT REPORTS
[19641
the judgment was a sentence of imprisonment and
the prisoner has died. It would be a very novel
step if, in these circumstances, we said that the·
court would entertain an appeal."
In Short and Mellor's (The Practice on the Crown Side of the
King's Bench Division, second edition) it is stated at p. 425
that the practice does not seem to be uniform and reference is
made to some cases. In one of them-Hesketh v. Atherton(')
the counsel was allowed to argue an appeal after the death of
one of the parties. But in Leach v.