The State Of Kerala vs Narayani Amma Kamala Devi

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 55 of 1961

Decision Date: 19 March, 1962

Coram: K.C. Das Gupta, J.L. Kapur, Raghubar Dayal

In the matter titled The State of Kerala versus Narayani Amma Kamala Devi, decided on 19 March 1962, the Supreme Court of India constituted a bench consisting of Justice K.C. Das Gupta, Justice J.L. Kapur and Justice Raghubar Dayal. The petitioner was the State of Kerala and the respondent was Narayani Amma Kamala Devi. The judgment was reported in 1962 AIR 1530 and in the Supplement to the Supreme Court Reports, volume 3, page 943, and has been cited in later reports such as 1964 SC 1645, 1973 SC 84 and others. The case concerned the operation of the Code of Criminal Procedure, 1898, particularly sections 431 and 439, in relation to a conviction followed by the death of the accused and the maintainability of a revision petition before the High Court.

The factual background involved a bank cashier, identified in the records as One N, who was convicted under section 381 of the Indian Penal Code for the theft of a sum of money belonging to the bank. He was sentenced to one year of rigorous imprisonment. His appeal to the Sessions Court was dismissed, and he died within a few hours after the Sessions Court pronounced its judgment. Following his death his wife and his two minor sons filed a revision petition in the Kerala High Court under section 439 of the Code of Criminal Procedure, seeking to set aside the conviction.

The Kerala High Court entertained the petition and set aside the conviction of the deceased accused. The State of Kerala obtained a certificate of appeal and raised the question before this Court. The central issue was whether an application for revision under section 439 of the Code could be entertained by a High Court after the death of the accused against whom the order was made.

The Court held that, where the facts justify it, the High Court may exercise its power of revision against an order made against an accused even after his death. Accordingly, the Court affirmed that the High Court was correct in entertaining the revision petition under section 439. The Court further explained that the Code contains no provision similar to section 431 that would bar a revision when the convicted person is dead. The opening words of section 439 indicate that revisional jurisdiction may be invoked either by the convicted person, by any other person, or even suo‑motu by the High Court on the basis of information it acquires from any source. Hence, the only condition for the High Court to exercise its revisional power is that it receives information which leads it to believe that the order of the subordinate court is fit for revision, without any requirement that the petition be filed by the deceased accused himself.

Section 431 and section 439 differ in that appellate jurisdiction may be exercised only after an appeal is filed either by the convicted person or against an order of acquittal under sections 411 or 417, whereas the revisional jurisdiction of the High Court is not limited by such a requirement. The distinction was discussed in Imperatrix v. Dongaji Andaji, (1878) I.L.R. Bom. 564, and the principle was reiterated in Pranab Kumar Mitra v. State of West Bengal, (1959) Supp. 1 S.C.R. 63. The present proceeding is Criminal Appeal No. 55 of 1961, arising from the judgment and order dated 5 October 1960 of the Kerala High Court in Criminal Revision Petition No. 337 of 1959. Counsel for the appellant and counsel for the respondents appeared for the parties. The judgment was delivered on 19 March 1962 by Justice Das Gupta. The central issue before the Court was whether an application for revision under section 439 of the Code of Criminal Procedure could be entertained by the High Court after the death of the accused against whom the order was made. The facts disclosed that Gobindankutty Nair, who served as a cashier in the Trivandrum Branch of the State Bank of India, was convicted by the Sub‑Divisional Magistrate, Trivandrum, of an offence punishable under section 381 of the Indian Penal Code for allegedly stealing Rs 10,000 belonging to the bank. During the investigation the police seized a Fiat car purchased by the accused, alleging that the purchase money derived from the stolen amount. The seized vehicle was sold on the Court’s direction and the sale proceeds were lodged with the Court. The Magistrate sentenced the accused to rigorous imprisonment for one year and ordered that the proceeds from the sale of the car be withdrawn by the Head Cashier of the bank for appropriation against the amount proved to have been stolen. The accused appealed to the Sessions Court, but the appeal was dismissed. Although the Sessions Court did not issue a separate order addressing the Magistrate’s direction concerning withdrawal of the sale proceeds, the order was deemed to be affirmed by implication. The Sessions Court delivered its judgment on 13 August 1959, and within a few hours of pronouncing the judgment the accused, Gobindankutty Nair, died.

Subsequently, on 11 November 1959, the widow of the deceased and his two minor sons filed an application under section 439 in the Kerala High Court seeking relief against the Sessions Court judgment. Their prayer was to set aside both the conviction and sentence imposed on the deceased and also to annul the order directing the withdrawal of the sale proceeds of the motor car. The State of Kerala raised a preliminary contention that, because the accused had died, the revision application could not be maintained. The High Court rejected this preliminary submission and proceeded to consider the application on its merits.

The High Court ordered that both the conviction of the accused be set aside and the order directing the payment of the sale proceeds of the motor car to the Head Cashier be vacated. Nevertheless, the High Court granted a certificate under Article 134(1)(c) of the Constitution, holding that the matter was suitable for appeal to this Court, and on the basis of that certificate the State of Kerala preferred the present appeal. The principal ground advanced in support of the appeal was that, following the death of the accused, no revision application lay before the High Court against the Sessions Court order that had upheld his conviction. Counsel for the appellant based his submission on the common‑law maxim that a personal action dies with the person, expressed in Latin as actio personalis moritur cum persona, and he argued that, except where a statute provides otherwise, no proceedings either against the accused or on his behalf may be entertained or continued in respect of any crime alleged to have been committed by a deceased person. He cited Salmond’s observations in his work Jurisprudence, Eleventh Edition, page 442, wherein Salmond stated that criminal responsibility must die with the wrongdoer himself, and he urged that, because all criminal proceedings are personal actions, any proceeding connected with a crime cannot be commenced or continued against an accused person or on his behalf unless a specific statutory provision permits it. It was noted, however, that Salmond himself went on to observe that modern opinion rejects the strict application of the maxim actio personalis moritur cum persona, and the view that all penal redress actions must be brought only against a living offender has been abandoned. More importantly, the present dispute does not concern whether criminal proceedings may be initiated or continued against a person; rather, it concerns whether, once a criminal proceeding has concluded unfavourably to an accused, any further action may be taken in respect thereof. On that question, the common‑law maxim offers little assistance and the answer must be sought in other statutory provisions. The Criminal Procedure Code confers a right of appeal to a convicted person in certain circumstances, but if the convicted person dies after conviction and before an appeal is filed, the Code contains no provision for an appeal on his behalf. When a convict files an appeal and then dies, the situation is governed by Section 431 of the Criminal Procedure Code, which provides that every appeal against acquittal and every other appeal under Chapter XXXI, except an appeal from a sentence of fine, shall abate on the death of the appellant. Consequently, neither the High Court nor the Court of Sessions can exercise appellate jurisdiction in favour of a deceased person, except in the limited case of an appeal from a fine.

In the discussion, the Court observed that the provision allowing an appeal to continue after it has been filed by the convicted person applies only to appeals that are not lodged against a sentence of fine. Regarding the High Court’s revisional jurisdiction, the Court noted that there is no provision analogous to section 431 of the Criminal Procedure Code, and there is likewise no provision that expressly permits or bars a revisional application when the convicted person has died. The Court pointed out an important distinction: while appellate jurisdiction may be exercised only after the convicted person files an appeal or when an order of acquittal is challenged under sections 411 or 417, the revisional jurisdiction of the High Court is not subject to such a limitation. The opening words of section 439 of the Criminal Procedure Code, namely “in the case of any proceedings the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge,” were said to make it clear that the High Court may exercise its revisional jurisdiction either on an application by the convicted person, by any other person, or on its own motion (suo motu) based on information it obtains from any source, without the requirement of a formal petition. The Court explained that the only requirement to invoke the High Court’s revisional powers is the existence of information that leads the Court to believe that an order made by a subordinate court is suitable for revision. The Court then referred to the argument presented by counsel, who highlighted the subsequent language of section 439 which states that the High Court may, at its discretion, exercise any of the powers conferred on a court of appeal by sections 423, 426, 427 and 428. This language, the Court said, makes it clear that the High Court’s revisional power does not extend beyond the powers available to a court of appeal. Consequently, if a court of appeal is unable to grant any relief concerning a conviction, a sentence of fine, or any other order after the accused has died, the High Court, exercising its revisional jurisdiction, cannot provide such relief either. The Court observed that the argument presented confused the definition of the extent of the power with the conditions for exercising that power. The conditions for exercising revisional power are laid down in the opening clauses of section 439, as previously explained, whereas the subsequent clause specifying that the High Court may exercise any of the appellate powers under sections 423, 426, 427 and 428 defines the scope of that power. The Court further noted that although the scope of the revisional power does not include, except as provided by section 439, the power to enhance a sentence beyond what an appellate court may order, this limitation does not alter the fact that the conditions for exercising revisional jurisdiction are distinct from those governing appellate jurisdiction.

In this case the Court noted that the condition for a court of appeal to exercise its powers is that the appeal must be preferred by the convicted person, a condition that is clearly absent when the conditions for the exercise of the powers of revision are laid down in section 439. Accordingly the Court found that, in a proper case, the High Court can exercise its power of revision of an order made against an accused even after the accused has died. The Court referred to the view expressed by the Bombay High Court in Imperatrix v. Dongaji Andaji. The direct question in that case was whether an appeal lodged by a convicted person abates on his death. Two judges, Melvill J. and Kemball J., differed on this point. Melvill J. held that on the death of the appellant the appeal abated, while Kemball J. reached the opposite conclusion. The matter was then referred to Chief Justice Westropp, who agreed with Melvill J. that the appeal had abated. Despite their disagreement on the effect of death on the appeal, all three judges were of the opinion that the death of the convicted person would not impede the court’s exercise of its revision powers. Melvill J. observed that in a recent case the Chief Justice and himself had considered proceedings after the death of the convict, but those proceedings had been called for under section 297 and the judges were sitting as a Court of Revision. He emphasized that no person has a right to be heard before the High Court in the exercise of its revision powers because the court is not acting on an application of the convict but is exercising supervisory authority over subordinate courts to correct their errors. He stated that the court could interfere only if it saw a legal error invalidating the conviction or an excessive sentence; finding none, he did not exercise the revision power. Kemball J. likewise expressed confidence that, as a Court of Revision, he could dispose of the case. Chief Justice Westropp, after confirming his view that the appeal had abated, added that the High Court nevertheless has the right to call for the record and make any order it deems necessary to achieve justice, and that his opinion was not required by his fellow judges on whether the circumstances made it desirable to bring up the record. Thus it is clear that, although the High Court’s revision powers were not exercised in that case, all three judges agreed that in a proper case such powers could and should be exercised even after the death of the convicted person.

In that earlier decision, the three judges concurred that, although the Court of Revision had not exercised its powers in the particular case, a proper case would permit and indeed require the exercise of revision even after the death of the convicted individual. The principle was later examined by this Court in Pranab Kumar Mitra v. The State of West Bengal (1). The issue in that case was whether, when an accused had been sentenced to a fine and to imprisonment pending the rise of the Court, and the convicted person had already served the nominal term of imprisonment and subsequently died while his revision application was pending before the High Court, the High Court could still exercise its revisional jurisdiction with respect to the conviction and the sentence. The Court held that such powers could be exercised and that they could not be limited by analogy with section 431 of the Code, which was inapplicable to a revision proceeding. Referring to the Bombay High Court decision in Dongaji Andaji’s Case (1) and noting the distinction drawn by those judges between the High Court’s authority to entertain an appeal after the death of a convicted person and its authority to exercise revisional jurisdiction after such a death, this Court observed at page 70 of the report that it may be presumed that the Legislature, when enacting section 431 for the first time in the Code of 1882, was aware of the Bombay High Court decision. If the Legislature had intended a pending revision to be treated on the same footing as a pending appeal, it would have expressly provided for that. In the absence of any such provision, the power of revision vested in the High Court under Chapter XXXII of the Code remained untouched and was to be exercised according to the exigencies of each case. Although Pranab Kumar’s case directly addressed the effect of the death of a convicted person on a pending revision, the judgment also expressed the view that a revision application could be entertained even after the death of the convict. Relying on that authority and on the reasons discussed earlier, this Court concluded that the High Court was correct in holding that the application for revision could be entertained under section 439 of the Code of Criminal Procedure. The Court found no reason to interfere with the High Court’s order made in the exercise of its revisional power. Consequently, the appeal was dismissed.