Pranab Kumar Mitra vs The State Of West Bengal And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 116 of 1956

Decision Date: 3 October, 1958

Coram: Bhuvneshwar P. Sinha, Natwarlal H. Bhagwati, K.N. Wanchoo

In Pranab Kumar Mitra versus The State of West Bengal and Another, the Supreme Court of India delivered its judgment on 3 October 1958. The judgment was authored by Justice Bhuvneshwar P. Sinha and was decided by a bench consisting of Justice Bhuvneshwar P. Sinha, Justice Natwarlal H. Bhagwati and Justice K. N. Wanchoo. The petitioner in the proceedings was Pranab Kumar Mitra and the respondents were the State of West Bengal and another party. The citation for the decision appears as 1959 AIR 144 and 1959 Supplementary Criminal Reports (1) 63. Subsequent citators have referenced the case in several later decisions, including R 1962 SC1530, RF 1964 SC1645, and RF 1979 SC 745. The matter concerned a criminal revision arising under the Criminal Procedure Code, Act V of 1898, specifically sections 439, 435 and 431, and involved the death of the petitioner while the revision was pending in the High Court. The legal issue was whether the High Court could add the legal representative of a deceased petitioner as a party and whether it could examine the legality of the conviction and sentence, which in this case consisted of a nominal one‑day imprisonment, a fine of Rs. 500 and a default term of six months’ rigorous imprisonment under section 420 of the Indian Penal Code. The High Court, relying on the principle of section 431, admitted the petitioner’s son as a party but declined to scrutinise the validity of the conviction and only reduced the sentence. The Supreme Court held that the High Court erred in restricting its powers under section 439 by analogising to section 431, which does not apply to a revision proceeding. The Court affirmed that section 439, read with section 435, confers a wide discretionary authority on the High Court to examine the correctness, legality or propriety of any finding, sentence or order of an inferior court, and that this authority includes the power to place a legal representative of a deceased party on the record and to consider the legality of the conviction even when the sentence involves both imprisonment and fine. The Court relied on earlier authorities such as Imperatrix v. Dongaji Andaji (1878) I.L.R. 2 Bom. 564 and Ye Nabishah (1894) I.L.R. 19 Bom. 714. Consequently, the Supreme Court set aside the decision of the Calcutta High Court dated 22 December 1955 in Criminal Revision No. 714 of 1955 and remitted the matter for appropriate consideration. The case was listed as Criminal Appeal No. 116 of 1956, arising from the High Court judgment and order dated 22 December 1955.

The Court noted that the order dated 9 May 1955 of the Additional Sessions Judge at Alipore, rendered in Criminal Appeal No 97 of 1955, formed part of the record. Counsel C P Lal appeared for the appellant, while counsel H J Umrigar and R H Dhebar appeared for the respondents. The judgment was delivered on 3 October 1958 by Justice Sinha. The central question for determination in this appeal, which arose from a certificate of fitness granted by the High Court of Judicature at Calcutta, was whether a revision application filed under section 439 of the Code of Criminal Procedure – hereafter referred to as the Code – ceases to exist upon the death of the petitioner before the High Court, and if it does, to what extent such cessation should operate.

The Court observed that it was unnecessary to recount in detail the facts of the prosecution case or the evidentiary material on which the trial courts based their findings, except to state that the appellant’s father, Sailendra Sundar Mitra, had been tried and convicted by a magistrate of the first class at Alipore. The appellate record reproduced the charge against the accused as follows: on 2 December 1946, at Garden Reach, the accused, who was employed as an Establishment Clerk in the B C II Section of the Traffic Accounts Office of the Bengal N Railway (now Eastern Railway), allegedly cheated the railway administration by making false representations in the pay bill of non‑gazetted staff for November 1946. By this fraud he purportedly induced the railway to pay him Rs 205‑13‑0 and to pay Rs 33‑4‑0 to a clerk named Satish Chandra Das Gupta, amounts that exceeded legitimate dues, thereby committing an offence punishable under section 420 of the Indian Penal Code.

The learned trial magistrate convicted the accused of cheating with respect to the sum of Rs 205‑13‑0, but granted him the benefit of doubt regarding the Rs 33‑4‑0 claimed on behalf of Mr Gupta. The magistrate sentenced the accused to one day’s imprisonment – effectively detention until the court rose on the day the order was pronounced – and imposed a fine of Rs 500, with a default provision that failure to pay would result in rigorous imprisonment for six months. The magistrate further directed that, should the fine be realized, Rs 333 be paid to the Bengal N Railway Administration (now South Eastern Railway) as compensation, by an order dated 11 February 1955.

On appeal, the Additional Sessions Judge at Alipore, after hearing both sides, dismissed the appeal and confirmed the conviction and sentence on 9 May 1955. Dissatisfied with the decisions of the trial magistrate and the Additional Sessions Judge, the accused filed a revision application in the High Court under section 439 of the Code. The High Court issued a rule, recorded as Criminal Revision Case No 714 of 1955, and stayed the realization of the fine pending the resolution of the revision proceedings.

During the hearing of the revision rule, the accused died on 8 July 1955, leaving a widow and five minor children as survivors, while the appellant, who was not a minor, remained alive. On 6 December 1955 the appellant filed an application declaring himself to be one of the heirs of the deceased accused, who had been the petitioner in the High Court revision proceeding, and stating that he wished to continue the criminal revision case and to challenge the conviction and sentence that had been imposed on his father. Accordingly, he prayed to be added as a party to Criminal Revision Case No. 714 of 1955 so that he could contest the order of conviction and sentence. The Division Bench of the High Court treated this filing as an “application for substitution,” heard it, and delivered its order on 22 December 1955. The Bench held that the principle embodied in section 431 of the Code applied to a criminal revisional application even when the original sentence was composite, but that the application of the section was limited to the fine component of the sentence. On that basis the substitution application was allowed. The High Court further ruled that the conviction itself could not be questioned because the sentence comprised both imprisonment and fine; consequently the revision could survive only to the extent of examining whether the fine of Rs 500 was excessive or undue. The Court therefore declined to go into the merits of the conviction and confined its review to the propriety of the fine. Noting that the accused’s defence was that the over‑charge had arisen from a mistake and that he was prepared to refund the excess amount, the Court directed that the fine be reduced to the amount of the over‑charge, namely Rs 205 13/‑, and ordered that the entire fine, if realized, be paid to the B.N. Railway Administration (now the South Eastern Railway). Dissatisfied with this order, the appellant appealed to the High Court and obtained a certificate of fitness under article 134(1)(c) of the Constitution. The appellant then sought a further appeal, citing that there was no specific provision in the Code governing such a situation except for section 431, the last section of Chapter XXXI dealing with appeals, which reads: “431. Every appeal under section 411A, subsection (2), or section 417 shall finally abate on the death of the accused, and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant.” It was observed that the language of the section applied solely to appeals, laying down that an appeal against an order of acquittal would abate on the death of the accused, and that any other appeal under the Chapter, except one involving only a fine, would abate on the death of the appellant.

In the Code of Criminal Procedure, an appeal of acquittal that is passed by the High Court while it is exercising its original criminal jurisdiction under section 411‑A (2), or an appeal made to the High Court from an order of acquittal issued by any court other than the High Court, is required to terminate definitively upon the death of the accused. Likewise, every appeal that falls under Chapter XXXI, except an appeal that challenges only a sentence of fine, must also terminate definitively on the death of the appellant. The first part of section 431, which deals with appeals against orders of acquittal, clearly provides that such appeals must inevitably cease because the accused has died and is therefore beyond the jurisdiction of the court. The second part of the same section addresses appeals filed by persons who have been convicted, or by individuals who have been deprived of any property, or who have been ordered to furnish security, and it similarly stipulates that those appeals must terminate on the death of the appellant, except where the appeal is solely against a fine. In the instant case, the Court observed that it was not directly concerned with the legal position that might arise on the death of the appellant or of an accused who is a respondent. Consequently, the Court found it unnecessary to examine the question of whether an appeal would abate when it is based on a conviction that includes both a fine and a term of imprisonment, even though such an appeal might remain pending until the higher court delivers its decision.

The Court further noted that the present matter involved a convicted person who had already served his nominal term of imprisonment, assuming that the imprisonment was lawful, and whose revision application was pending, primarily seeking to challenge the order of conviction and the imposition of a fine, at a time when the petitioner before the High Court had died. As already indicated, the provisions of section 431, in their terms, do not apply to such a situation. Accordingly, the case had to be determined on first principles. The Court traced the origin of section 431 to the Criminal Procedure Code of 1882 (Act 10 of 1882), which introduced the provision for the first time. The provision was later examined before a Division Bench of the Bombay High Court in its criminal revisional jurisdiction in the case of In re Nabishab. In that case, two persons had been convicted of criminal breach of trust and each had been sentenced to one year’s rigorous imprisonment together with a fine of Rs 1,000. Both convicted persons appealed to the High Court; one of them died while the appeal was pending. The High Court allowed the appeal of the surviving appellant and set aside his conviction and sentence. Subsequently, a relative of the deceased appellant applied to the High Court in its revisional jurisdiction to have the conviction and sentence against the dead man set aside and to obtain a refund of the fine, which appeared to have been paid. The High Court held, without discussing the terms of section 431 and without giving any further reasons, that the appeal concerning the deceased appellant had abated under section 431.

In the earlier matter, the High Court concluded that the appeal concerning the deceased appellant had ceased to exist under section 431 of the Code of Criminal Procedure. The Court declined to entertain the application for revision because it believed that the issues required a fresh assessment of the evidence. The Court’s decision appeared to be based on the observation that the pending appeal was not directed solely at a monetary fine but also challenged a substantive term of imprisonment. When a conviction includes both a fine and a period of imprisonment and an appeal or revision is subsequently filed, the higher court retains the discretion either to grant bail to the appellant or to deny it. In cases where bail is not granted, the convicted individual may serve the entire term of imprisonment before the appeal is finally heard. By the time the matter reaches the hearing stage, the principal question that the higher court must resolve is whether the original conviction and the remaining liability for the fine are legally correct and appropriate. Consequently, it becomes a contentious issue whether, under those circumstances, the appeal or the revision application is considered to have abated. A similar factual scenario was presented in the case of Imperatrix v. Dongaji Andaji, reported in 1878 at I.L.R. 2 Bom. 564. In that case, the accused was sentenced by the Court of Session on a forgery charge to four years of rigorous imprisonment together with a fine of one thousand rupees. While the appeal was pending before the High Court, the appellant, who had not obtained bail, died in prison. The matter was then placed before a Division Bench consisting of Justices Melvill and Kemball.

Justice Melvill held that the appellant’s death caused the appeal to abate, thereby terminating the High Court’s role as an appellate authority in the matter. He further observed that, because there was no error of law evident in the conviction and no indication that the sentence was excessively harsh, the High Court could not exercise its powers as a court of revision. In his judgment, Justice Melvill emphasized that although the legal representative of the deceased convict would naturally be interested in overturning the fine or recovering forfeited property, the Code of Criminal Procedure of 1872 (Act X of 1872) does not provide any statutory right of appeal to a legal representative after the convict’s death. Accordingly, the appeal could not be heard on its merits. Justice Kemball agreed with Justice Melvill that the legal representative could not continue the appeal, but he differed on the question of abatement. He expressed the view that, since the record of the case was already before the court, the appellate function could continue notwithstanding the appellant’s death. Justice Kemball argued that the outstanding liability for the fine continued to attach to the deceased’s estate, and therefore the legal representative had a legitimate interest in seeking a determination on the merits of the fine. He concluded that while the High Court could settle the matter as a revisional case, it was also bound to consider it within its appellate capacity.

The Court could issue any orders in the appeal that it deemed appropriate. The view expressed was that, when the convicted person died, the issue of completing the remaining term of imprisonment ceased to exist; however, the estate of the deceased, managed by the legal representative, remained liable for any fine that had not been paid within the period prescribed by law, and therefore it was in the interest of the legal representative that the matter be fully examined on its merits. Ultimately, the judge concluded that there was no doubt that the High Court possessed the authority to dispose of the case in its capacity as a Court of Revision, yet he also held that the Court was obligated to decide the case as a Court of Appeal. Because the two learned judges differed on this point, the matter was referred to Westropp, Chief Justice. The Chief Justice concurred with Melvill, J., that the Code contained no provision allowing a legal representative of a deceased convict to continue an appeal, and that the High Court lacked power to entertain an appeal after the death of the convict. He based this conclusion on the principle that the right to appeal, or to continue an appeal already pending, must be granted either expressly by statute or by necessary implication. That principle is now reflected in section 431. He further observed that, although the appeal had been extinguished, the High Court retained the power to call for the record and to exercise its revisional jurisdiction on its own motion; however, he did not express an opinion as to whether that power could be exercised in the present case. In the Court’s opinion, where there is no statutory provision governing an application for revision—unlike the provisions in section 431 that govern criminal appeals—the High Court still has the authority to pass such orders as it considers fit and proper, exercising the revisional jurisdiction conferred by section 439 of the Code. This authority is discretionary and must be exercised to further the cause of justice. Whether the High Court elects to exercise its revisional jurisdiction in any particular case will depend on the specific facts and circumstances before it. The revisional powers granted to the High Court by section 439, read with section 435, do not create any entitlement for a litigant; rather, they preserve the Court’s ability to ensure that justice is administered in line with established principles of criminal jurisprudence and to prevent subordinate criminal courts from exceeding or misusing the powers given them by the Code. Conversely, as already noted, the right of appeal is a statutory right that must be recognized by the courts, and where such a right exists it cannot be denied by the discretionary power of the High Court.

The Court observed that the power to substitute a party in a criminal revision is not governed by any provision in Chapter XXXII of the Code, whereas the Code contains Section 431 which expressly regulates substitution when an appellant dies. The Court noted that the legislature, when drafting Section 431 for the Code of 1882, was aware of the Bombay High Court decision previously mentioned. If the legislature had intended that a revision pending before a High Court should be treated in the same way as an appeal, it would have expressly provided for such treatment. In the absence of any such enactment, the Court inferred that the revisional jurisdiction conferred by Chapter XXXII remained untouched and was to be exercised according to the specific circumstances of each case.

The Court further explained that a High Court is under no obligation either to entertain an application for substitution in a revision or, once such an application is entertained, to grant substitution in every instance. Conversely, the Court held that the High Court is not compelled to deem a pending revision as abated merely because the original order imposed both imprisonment and a fine, a view that some single‑Judge decisions appear to endorse. Full discretion, therefore, was left to the High Court to decide how to proceed when the petitioner dies, ensuring that justice is served. The petitioner before the High Court might be an accused who has been convicted and sentenced, or a complainant who, under Section 250 of the Code, has been ordered to pay compensation to an accused upon the latter’s discharge or acquittal. Regardless of the petitioner’s identity, any rule issued by the High Court must be applied and interpreted in accordance with the law, whether the petitioner is alive or deceased, and whether representation is by a legal practitioner.

In hearing and determining applications under Section 439, the Court affirmed that the High Court performs its statutory function of supervising criminal justice administration. Consequently, the considerations that govern the abatement of an appeal do not automatically extend to revisional applications. The Court concluded that, given the absence of any specific statutory provision dealing with abatement and substitution in criminal revisions, the Bombay High Court’s decision remains the appropriate authority. Although several single‑Judge decisions have attempted to apply the principle of Section 431 to revision cases, the Court found it unnecessary to cite those cases individually. The prevailing view, therefore, is that the lack of a statutory rule on this point leaves the High Court’s discretion unfettered to address the death of a petitioner in a manner consistent with the demands of justice.

The Court observed that, because there was no statutory provision on the matter, it agreed with the earlier Bombay High Court decision that the High Court possessed authority to determine a case even after the death of a convicted person when a fine had also been imposed, since the fine affected the deceased’s property held by his legal representative. The Court then considered whether the High Court was correct in limiting its revisional power solely to the question of the fine, without examining the merits of the conviction. It noted that once the revisional jurisdiction was attracted to such a case, it would be difficult to confine the exercise of that power in the manner adopted by the High Court. Under section 439 of the Code, the Court explained, the High Court held discretionary authority to exercise any powers of an appellate court that were applicable, including the power to increase a sentence, subject to the proviso that no order prejudicial to an accused could be made unless the accused had an opportunity to be heard. In the present matter, the Court clarified that it was not dealing with any enhancement of sentence, but rather with the question of whether any provision in the Code limited the High Court’s discretion to examine the correctness, legality or propriety of any finding, sentence or order under section 435 of the Code passed by a lower court. The Court observed that, on the death of the convicted person, the issue of serving a term of imprisonment became moot, yet the fine remained liable to be examined for its legal foundation. It held that such an examination could not be effectively undertaken without reviewing the conviction itself on its merits. The Court further reasoned that if the fact that the fine would have to be paid from the estate of the deceased gave the heir or legal representative a right to continue an appeal or revision, the same principle should permit questioning the correctness of the conviction, because a conviction would inevitably require payment of at least a nominal fine from the estate. Consequently, the Court concluded that when the High Court considered it appropriate to entertain a revision application or to call for the record on its own motion, it possessed the power to scrutinize the entire issue of the correctness, propriety or legality of the fine, which necessarily involved reviewing the conviction order. For these reasons, the Court allowed the appeal and remitted the matter to the High Court for further proceedings in accordance with law.

The Court held that the matters pending before the High Court must be conducted strictly in accordance with the applicable legal provisions and procedural requirements. Accordingly, the Court permitted the appeal that had been filed, thereby setting aside the earlier order that had been adverse to the petitioner. By allowing the appeal, the Court expressly directed that the case be remitted to the High Court for further consideration, with the stipulation that the High Court carry out its duties while observing the proper law‑based standards. The direction requires the High Court to examine any questions relating to the correctness, propriety or legality of the conviction and any associated fine, as the High Court possesses the jurisdiction to entertain a revision application and to scrutinise the entire sentence. The Court emphasized that the appellant’s right to challenge the conviction remains viable, and that any further determinations must be made only after a lawful and thorough examination. Consequently, the appeal was allowed and the High Court was instructed to proceed with the case in strict compliance with the law.