Bondada Gajapathy Rao vs State of Andhra Pradesh

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

Court: supreme-court

Case Number: Criminal Appeal No. 179 of 1961

Decision Date: 16 March, 1964

Coram: A.K. Sarkar, M. Hidayatullah, J.R. Mudholkar

In the matter titled Bondada Gajapathy Rao versus State of Andhra Pradesh, the judgment was delivered on 16 March 1964 by the Supreme Court of India. The opinion was authored by Justice A. K. Sarkar and the bench was composed of Justices A. K. Sarkar, M. Hidayatullah and J. R. Mudholkar. The citation of the decision appears in the 1964 All India Reporter at page 1645 and in the 1964 Supreme Court Reports (7) at page 251, with a later citation in 1975 Supreme Court Reports at page 236. The case concerned a criminal trial in which the appellant had been convicted under section 302 of the Indian Penal Code for the murder of his wife and was sentenced by the High Court to imprisonment for life. The appellant sought special leave to appeal, which was granted by this Court. While the appeal was pending, the appellant died. Following his death, his sons and daughter applied to the Supreme Court requesting permission to continue prosecuting the appeal on their behalf.

The legal representatives argued that although the sentence of imprisonment could no longer be executed after the appellant’s death, the conviction still affected the deceased’s estate. Accordingly, they claimed that they were interested parties who should be allowed to pursue the appeal in order to protect the property interests that might arise if the conviction were set aside. The appellant had previously held a high office in the Government of Andhra Pradesh, had been suspended during the investigation, and was dismissed from service under the relevant service rules upon his conviction. During the period of suspension he received only a modest allowance. The representatives asserted that if the conviction were overturned, the estate of the deceased would be entitled to receive the full salary that the Government owed him, which was now being withheld.

The Court recorded that the issues raised involved provisions of the Code of Criminal Procedure of 1898, specifically sections 431, 435 and 439, as well as article 136 of the Constitution of India. The headnote summarized the factual background, the procedural posture, and the question of whether heirs could prosecute an appeal after the appellant’s death. Justice Sarkar delivered the judgment. He observed first that neither section 431 of the Code of Criminal Procedure nor the cases previously mentioned applied directly to the present situation. He explained that the present proceeding was not an appeal governed by section 431, nor was it a revisional application like the one considered in Pranab Kumar Mitra v. State of West Bengal, reported in 1959 Supplement 1 of the Supreme Court Reports at page 63. He further distinguished the English case Hodgson v. Lakeman, reported in 1943 L.R. K.B. at page 15, stating that it could be considered only as persuasive authority.

Justice Sarkar then set out the principle governing the continuation of a criminal proceeding after the death of the accused. He held that the key consideration is whether the sentence imposed affects the property of the deceased and therefore the interests of the legal representatives. When a sentence has a direct impact on the estate, the representatives may be deemed interested and may be permitted to continue the proceeding. This principle, he noted, applies to appeals, revisions and petitions filed under article 136 of the Constitution. While acknowledging that a fine unquestionably affects property, he observed that in the present case the sentence was one of imprisonment, which, upon the death of the accused, becomes ineffective. Consequently, the effect of setting aside the sentence would not automatically confer the salary entitlement on the legal representatives; they would still need to obtain the appropriate orders from the Government to realize any such benefit.

The Court observed that the sentence imposed on the accused was imprisonment rather than a fine, and that imprisonment became ineffective upon the accused’s death. Consequently, the removal of that sentence would not automatically grant the legal representatives any entitlement to the deceased’s salary, and the representatives would still need to secure the appropriate orders from the Government to obtain such payment. The Court then held, speaking through Justice Hidayatullah, that an appeal challenging a sentence of imprisonment ordinarily ceased to exist on the death of the appellant because criminal prosecution primarily seeks to punish the offender rather than to adjudicate an abstract question of fact. The same principle, the Court said, applied to appeals after conviction unless the judgment affected property that would fall to the legal representatives. Where personal punishment other than a fine was involved, the death of the offender dissolved that punishment, rendering any appeal to set it aside ineffective and causing it to abate. The Court distinguished the earlier authorities in Pranab Kumar Mitra v. The State of West Bengal, [1959] Supp. 1 S.C.R. 63 and Pritam Singh v. State, [1950] S.C.R. 453, while referring to Hodgson v. Lakeman, [1943] L.R.K.B. 15 and Baghis v. Rowes, [1955] 1 Q.B.D. 573. The Court further held that the principle laid down in Pranab Kumar Mitra v. The State of West Bengal and Another and in Pritam Singh v. State did not apply to the present case because there was no analogy between an appeal by special leave and a revision under the Code. The matter did not involve legal representatives having to satisfy a fine liability or protect assets they claimed, and no claim of the petitioners was directly endangered by the judgment. Their claim depended on administrative action by the Government, which could not proceed solely on the outcome of the criminal prosecution. The appeal therefore concerned only the correctness of the conviction and not any monetary claim, and the ordinary rule that a criminal proceeding ends on the death of the accused must also govern special appeals in this Court, even though the Criminal Procedure Code may not be directly applicable.

Justice Mudholkar then held that the decision in Pranab Kumar Mitra v. The State of West Bengal had no bearing on an appeal brought before this Court by special leave. The Court acknowledged that the powers 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, were discretionary. The Court noted that under section 439 of the Code the High Court could exercise any of the powers vested in a court of appeal by the provisions of sections 423, 426, 427, 428 or by section 338, and could also enhance a sentence. However, this Court could not exercise the power under section 435 because it does not extend to proceedings under Article 136, creating a fundamental distinction between the revision powers of the High Court and the special leave powers of this Court.

The Court observed that the provisions contained in sections 423, 426, 427 and 428, as well as section 338, empower a court to modify an order and also to increase a sentence. It further explained that, under section 435 of the Code of Criminal Procedure, the High Court is authorised to call for the record of any inferior court on its own motion. However, that same authority cannot be exercised by this Court because article 136 of the Constitution does not confer such a power on the Supreme Court. Consequently, a fundamental distinction exists between the revisionary powers of a High Court and the powers that arise from article 136 of the Constitution. The Court expressly distinguished the decision in Pranab Kumar Mitra v. The State of West Bengal, [1959] Supp. 1 S.C.R. 63, emphasizing that the earlier decision was not applicable to the present appeal by special leave.

In addressing the nature of criminal appeals, the Court stated that the dispute in a criminal matter is strictly between the accused and the State, and the right to appeal likewise belongs personally to the appellant. It noted that there is no explicit statutory provision that allows the substitution of legal representatives for an appellant who has died in a criminal appeal pending before this Court under special leave. The Court recalled the policy embodied in section 431 of the Code, which provides that every criminal appeal under chapter XXXI will abate, except for appeals involving a sentence of fine. No law therefore mandates the continuation of an appeal when the appellant dies, particularly where the original sentence involves imprisonment. The Court held that the legal representatives’ interest in the present case is not a direct interest that can arise from the Court’s decision, even if it favors the appellant; rather, it is a contingent interest that does not flow directly from the ultimate judgment. The Court referenced several authorities on this point, including Hodgkin 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. Illingworth, Jones v. Gallowfield, Rivers v. Glasse (all 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 F.2d 706, The State of Kerala v. Narayani Amma Kamala Devi [1962] Supp. 3 S.C.R. 943 and Imperatrix v. Dongali Andaji (1879) I.L.R. Bom. 564. The Court concluded that the Legislature, by limiting the survival of appeals in section 431 to those against fines, recognised only that specific type of interest. It therefore held that exercising inherent or discretionary powers to recognise any other kind of interest would contradict established legal principles. In the circumstances, the Court determined that the applicants should not be granted special leave to continue the appeal. The judgment was delivered in the criminal appellate jurisdiction for Criminal Appeal No. 179 of 1961, an appeal by special leave from the Andhra Pradesh High Court order dated 31 October 1960 in Criminal Appeal No. 161 of 1960, with counsel appearing for the parties as noted.

Counsel for the appellant appeared, and counsel for the respondent, namely A. S. R. Chari, B. R. G. K. Achar, and R. N. Sachthey, represented the respondent. The judgment was rendered on March 16, 1964, and Justice Sarkar delivered the decision. The matter before the Court was an appeal against a sentence of life imprisonment that had been imposed on the appellant after he was convicted of murdering his wife. The appeal had been instituted with special leave granted under article 136 of the Constitution, but the appellant died before the appeal was heard. The appellant’s legal representatives subsequently applied for permission to continue the appeal despite the appellant’s death. The Court noted that some authorities suggest that revision petitions and certain appeals against fines may be pursued by a deceased accused’s representatives after death, referring to section 431 of the Code of Criminal Procedure and to Pranab Kumar Mitra v. State of West Bengal. The Court also observed that English case law, specifically Hodgson v. Lakeman, allows executors of a deceased appellant to continue appeals from comparable sentences. However, the Court observed that neither section 431 nor the cited authorities applied directly to the present case because the present appeal did not arise under the Code and was not a revision as in Pranab Kumar Mitra, and the English decision had only persuasive value. Nevertheless, the Court expressed the view that the principle permitting continuation of appeals against fines should be extended to allow the legal representatives of a deceased appellant to continue this appeal. The Court found no statutory provision that would cause such an appeal to abate upon the death of the appellant. Consequently, the Court reasoned that if appeals arising under the Code may continue after death, there is no reason to refuse continuation of appeals that arise under constitutional special leave. The Court further reasoned that if revision petitions may be pursued after the death of the accused, appeals should be treated the same way because no principled distinction exists for the purpose of continuance. The Court noted that the Code of Criminal Procedure authorises courts to exercise revisional powers suo motu, but it did not consider that authority to limit the scope of the Pranab Kumar Mitra decision, which was based on the absence of a specific statute. In Pranab Kumar Mitra, the Court had held that even without a statutory provision, a high court may determine a case after the convicted person’s death when a fine has also been imposed, because the fine affects the deceased’s property held by his legal representatives. The Court therefore concluded that a fine affects property equally when the case proceeds to a higher appellate stage or in revision.

In the case, the Court observed that if it were just and proper to continue a hearing after an accused had died, the same reasoning would apply to any similar case. The Court reasoned that the basis for permitting a proceeding to continue after death depended on whether the sentence imposed affected the deceased’s property in the hands of his legal representatives. When a sentence impacted such property, the representatives could be regarded as having an interest in the case and therefore could be allowed to pursue it. The Court acknowledged that a fine unquestionably affected property, but noted that in the present matter the sentence was one of imprisonment rather than a fine. The Court explained that imprisonment became ineffective upon the appellant’s death because no person could be incarcerated after death, rendering the sentence infructuous. It was submitted that, although the imprisonment could no longer be executed, it might still affect the deceased’s property and thus give the legal representatives an interest in the appeal. The Court examined the factual background, noting that the appellant, who had held a high government office in Andhra Pradesh, had been suspended during the investigation, dismissed under service rules after conviction, and had been receiving only a modest allowance. It was argued that setting aside the conviction would entitle the estate to the full salary. The Court found this contention inaccurate; it held that while overturning the conviction could assist the representatives in seeking the full salary, it would not automatically grant that right. The Court observed that no evidence had been presented to show that a court order awarding the salary would follow automatically from the setting aside of the conviction, nor that the representatives were unable to petition the Government for such an order on the ground that the conviction could not be tested because of the appellant’s death. Consequently, the Court concluded that the interests of the legal representatives did not satisfy the requirement for continuation of the appeal. Extending the principle applied to a fine to a case involving imprisonment lacked justification, and therefore the Court found no warrant to allow the representatives to proceed. Accordingly, the Court held that the legal representatives were not entitled to continue the appeal, as the imprisonment sentence did not affect anyone’s property after the appellant’s death, leaving no interested party to justify further proceedings.

After the accused died, the Court observed that no person could be said to have a direct interest in pursuing the appeal. Consequently, the Court found that there was no question of continuing the proceedings in the ordinary manner. The appellant had been found guilty under section 302 of the Indian Penal Code and the High Court of Andhra Pradesh had imposed a sentence of life imprisonment. The Supreme Court had granted special leave to appeal against that judgment. While that appeal was still pending, the appellant passed away on 30 August 1963. Following his death, his sons and daughters filed an application on 5 October 1963 seeking the Court’s permission to carry on the appeal on their behalf. The Court noted that this petition was the only matter presently before it. The deceased had been employed as a Superintending Engineer (Electricity) in the Government of Andhra Pradesh. The charge against him related to an incident on 10 August 1959, when he allegedly shot his wife in the back with a revolver, resulting in her death. The Sessions Judge of Krishna Division at Masulipatnam had initially acquitted him, but the State Government appealed, and the appellate court set aside the acquittal, convicting the appellant and imposing the life sentence mentioned earlier. The Court indicated that, given the appellant’s death, it was not necessary to examine the factual details of the alleged offence unless it decided to permit the appellant’s heirs to continue the appeal, which was precisely the relief sought by the petitioners.

The Court further observed that no similar question had previously been raised before it, although earlier cases had treated appeals that became pending at the death of a sole appellant as abated. It explained that, as a general rule, an appeal of this nature would normally cease because criminal proceedings are chiefly designed to punish an offender rather than to resolve abstract questions about the truth of the prosecution’s case. The Court cited the maxim “actio personalis moritur cum persona” to illustrate this principle. Under section 431 of the Criminal Procedure Code, any appeal filed under sections 41 I‑A sub‑section 2 or 417 is required to abate upon the death of the accused, and every other appeal within Chapter XXXI also abates on the death of the appellant, except where the appeal concerns a fine. The Court noted that the present appeal did not fall within any of the categories listed in section 431 or Chapter XXXI, and therefore that statutory provision could not be applied. The petitioners argued that, in the absence of a specific statutory provision, the appeal should be deemed to continue, and they further pointed out that the Court had, on its own motion, permitted legal representatives to prosecute criminal revision proceedings under section 439 of the Code in the case of Pranab Kumar Mitra v. The State of West Bengal and Another, suggesting that a similar approach might be appropriate here.

The Court noted the earlier decisions in Pranab Kumar Mitra v. The State of West Bengal and Another and in Pritam Singh v. The State (2). It was argued that, on an equal footing of reasoning, the appeal could be pursued by the heirs of the deceased appellant. The Court stated that it was not its purpose to decide whether every criminal proceeding must cease upon the death of the accused in the absence of any direct injury to a living person, whether the death occurs before conviction or after. However, the Court emphasized that a clear and discernible reason must exist before another individual is permitted to continue an appeal, whether civil or criminal, after the appellant’s death. An appeal was described as not being a heritable asset that automatically passes to an executor or heir. Even under civil law, the substitution of another person in place of a deceased appellant required an express statutory provision, and such substitution depended on whether the underlying cause of action survived the death.

The Court observed that this principle was reflected in section 431 of the Criminal Procedure Code, which allowed an appeal relating to a fine to continue but barred continuation of appeals involving imprisonment. The intention behind that provision, the Court explained, was to grant the right of continuation only to persons whose interests were directly jeopardised by the judgment. Personal punishment, other than a fine, ceased upon the offender’s death, rendering any appeal to set aside that punishment useless and causing it to abate. The remaining question, the Court said, was whether the principle laid down in the two cited cases should govern special appeals or whether the principle underlying section 431 should apply. The Court held that the former was not a direct precedent for the present matter because there was no analogy between an appeal by special leave and a revision under the Code, and that while section 431 could be invoked suo motu, the same could not be done for a special‑leave appeal.

The petitioners argued that, had the father been acquitted, he would have been entitled to receive his salary for the period up to his death, because his conviction had led the Government to remove him from service; the amount claimed was Rs 40,000/‑. They contended that if the appeal were allowed, they could claim that sum and thereby possessed an interest in the appeal. The Court observed that this was not a situation in which the legal representatives of a deceased offender had to satisfy a fine liability or protect assets that the heirs claimed. Rather, the petitioners sought a re‑examination of the High Court judgment so that they might pursue a claim to the salary that their father would have received if he had been acquitted of the criminal charge. In the Court’s view, no claim of the petitioners was directly jeopardised by the judgment; their claim depended on an administrative action of the Government that might not proceed based on the criminal prosecution’s result. Consequently, the Court found the petitioners’ claim to be too remote and not directly consequential upon the issue to be tried. The appeal concerned only the correctness of the conviction and not any monetary claim dependent on the conviction’s outcome. In such circumstances, the ordinary rule that a criminal proceeding against a person ends upon his demise applied to this special appeal as well, even though the Criminal Procedure Code did not contain a specific provision to that effect. Counsel had cited English cases collected in Short & Mellor’s Practice of the Crown Office and Griffith’s Guide to Crown Practice, as well as United States cases referred to in legal annotations.

The Court observed that the claim relied upon by the petitioners was too remote because it depended on a government action that could not arise from the result of the criminal prosecution. In other words, the petitioners were attempting to join the appeal on the basis of a claim that was not directly connected with the issue to be tried. The appeal itself was limited to examining whether the conviction was correct, and it did not involve any monetary claim that would arise from the outcome of the appeal. Consequently, the Court applied the ordinary rule that a criminal proceeding against a person terminates upon his death, and it held that the same rule should apply to special appeals filed in this Court, even though the specific provisions of the Criminal Procedure Code do not expressly address such appeals. During the hearing, counsel referred to authorities from English courts and from the United States Supreme Court. The English authorities were cited from Short & Mellor’s Practice of the Crown Office and Griffith’s Guide to Crown Practice, while the American authorities were cited from annotations in L/P(D)ISCI‑9 … in 87 Lawyer’s Edition 1234 and 1 Lawyer’s Edition II Series 1879. English practice, according to the cited cases Hodgson v. Lakeman (1) and Regina v. Rowe (2), requires a direct monetary liability attached to a living person as a result of the impugned judgment before an appeal filed by a deceased person may be continued. The American practice was described as being the same. The Court reasoned that it is sensible to hold that a criminal prosecution, which the State pursues to bring an offender to book and to punish him for a crime, ends when the accused dies. The same principle must govern appeals that arise after conviction, except where the judgment already entered affects assets that would pass to legal representatives or an executor. The Court added that it is impossible to envision more remote interests, because if the law were to recognise such distant interests, every appeal would have to be pursued after the appellant’s death. On this basis, the Court concluded that the petitioners did not assert any direct interest, and therefore the appeal was deemed to have abated. Accordingly, the petition was dismissed and the appeal was held to have abated.

Justice Mudholkar then noted that the appeal presented a noteworthy legal question: whether the heirs of a deceased person, who had obtained special leave to appeal a conviction and sentence, are permitted to pursue that appeal after the appellant’s death while the appeal is still pending. The applicants were identified as the children of the deceased, who had been a Superintending Engineer (Electricity) employed by the Government of Andhra Pradesh. The deceased had been charged under section 302 of the Indian Penal Code for allegedly murdering his wife by shooting her with a revolver. The Court recounted the factual background in which the deceased, while serving in his government position, faced criminal charges that led to this appeal. The discussion set the stage for the Court’s further analysis of the legal issues raised by the petitioners’ request to continue the appeal notwithstanding the appellant’s demise.

The investigation of the offence resulted in the respondent being placed under suspension effective 10 August 1959, and he subsequently received a subsistence allowance for a limited period. At trial, the respondent argued that his wife had reached for the revolver, which he had left on a teapoy, because she feared he might use it on himself; the gun then discharged unintentionally, causing her death. The Sessions Judge accepted this explanation and acquitted the respondent of the murder charge. The State appealed the acquittal, and the High Court of Andhra Pradesh reversed the decision, finding the respondent guilty of an offence punishable under section 302 of the Indian Penal Code and imposing a term of life imprisonment. The respondent then obtained special leave to appeal to this Court. While the appeal was pending, the respondent died. The applicants, who are the children of the deceased, contend that a sum of Rs 40,000 is due to their father. They calculate this amount as the difference between the subsistence allowance actually paid by the Government and the total emoluments that would have been payable from the date of his suspension until his death. The applicants further argue that, should this Court set aside the conviction and sentence, they, as the legal heirs, would be entitled to recover that amount.

Counsel for the applicants argues that section 431 of the Code of Criminal Procedure, which governs the effect of death on appeals, is confined to appeals under Chapter XXXI and therefore does not restrict the powers conferred on this Court by article 136 of the Constitution. Section 431 provides that appeals under sections 411A, sub‑section (2) and 417, as well as all other appeals under Chapter XXXI, except appeals from a fine, shall finally abate on the death of the accused or appellant. Consequently, this provision does not apply to an appeal that has been permitted by this Court in the exercise of its discretionary authority under article 136. The counsel further maintains that the power exercised by this Court under article 136 is broad and discretionary, akin to the power exercised by a High Court under section 439 read with section 435 of the Code. By analogy with the precedent set in Pranab Kumar Mitra v. The State of West Bengal and another, the counsel submits that this Court possesses the authority to hear the appealed matter and to allow the applicants to prosecute it. The counsel does not claim that the applicants have a right to be entered on the record in place of the deceased appellant; rather, the counsel submits that, in order to meet the

In the present matter, the Court explained that, in the interests of justice, it would be appropriate to allow the applicants to continue prosecuting the appeal because a successful outcome would enable them to recover from the Government the salary arrears that were due to their deceased father. The Court observed that the decision on which the applicants relied did not have any relevance to an appeal that had been brought before this Court by way of special leave. The Court further noted that it was undisputed that the powers conferred by section 435 of the Code of Criminal Procedure on the High Court and on certain other courts, as well as the power conferred by article 136 of the Constitution on this Court, were both discretionary in nature. Regarding the High Court and the other courts, the Court clarified that the discretion allowed them to call for and examine any record of any proceeding before an inferior criminal court situated within their local jurisdiction, for the purpose of ascertaining the correctness, legality, propriety, or regularity of any finding, sentence, or order passed by the inferior court. Under section 435, these courts possessed the authority to act on their own initiative, and section 440 expressly provided that no party possessed a right to be heard, either personally or through counsel, before such a court, except for the limited circumstance that a High Court could not pass an order under section 439 of the Code to the prejudice of an accused person unless that person was given an opportunity to be heard either personally or through counsel in his defence. When a record came before the High Court, the Court could, at its discretion, exercise any of the powers conferred on a court of appeal by sections 423, 426, 427, and 428, as well as the power under section 338 to enhance a sentence. In contrast, the Court emphasized that article 136 of the Constitution granted this Court the discretion to decide whether to grant special leave, but it did not confer on this Court any power to call for the record of any court or tribunal on its own motion for the purpose of examination and the making of an appropriate order. Article 136 merely empowered the Court to grant leave to a person to bring an appeal before it and to provide that person an opportunity to demonstrate any error that might exist in the judgment or order that was being appealed. The Court distinguished between a power that could be exercised suomotu, which does not require the appearance of any party before the Court, and a power that could be exercised only when a party moved the Court on that behalf; for suomotu powers, the appearance of a party was not a prerequisite, and section 440 authorised the Court to decide whether to permit a party to appear and be heard. Nevertheless, the Court affirmed that the principle of natural justice would prevent a court, even when exercising a suomotu power, from making an order that prejudiced a party without first giving that party an opportunity to be heard.

The Court observed that no order should be made that prejudices a party when that party has not been afforded an opportunity to be heard. Regarding any appeal, irrespective of whether it is filed by a constitutional right, by another statutory provision, or by way of special leave, the appellant is entitled to be heard and to conduct the appeal. A Court that is exercising suo motu authority may, at any point, decide to discontinue the proceedings and may refrain from examining the record altogether. However, while an appeal remains pending before a Court, and there exists a person who is legally authorized to prosecute the appeal and no legal obstacle prevents the hearing, the Court does not possess discretion to abandon the appeal even though the appeal may have originally been initiated by the grant of special leave. The moment that special leave is granted, a legal right vests in the party who received the leave, enabling that party to pursue the appeal. The Court may, upon finding that the leave was obtained or granted improperly, choose to revoke that leave. Revoking the leave is distinct from the Court unilaterally dropping the appeal without revocation, a distinction the Court emphasized. The difference between revisional jurisdiction and appellate jurisdiction was highlighted in the earlier decision cited at page seventy, where Sinha, stated: “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 done in accordance with the recognized rules of Criminal Jurisprudence, and that subordinate criminal courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code. On the other hand, as already indicated, a right of appeal is a statutory right which has got to be recognized by the courts, and the right of appeal, where one exists, cannot be denied in exercise of the discretionary powers even of the High Court.” Consequently, when this Court has not revoked the special leave that it granted, it may exercise powers that are essentially appellate in nature with respect to the pending appeal. While hearing an appeal arising from a decision of a High Court, this Court is therefore limited to exercising only those powers that the High Court itself could exercise concerning that appeal. Concerning the procedural regime for hearing a criminal appeal by way of special leave, this Court has fashioned specific rules under Order XXI of the Supreme Court Rules, 1950. Rule 23 of that Order mandates that parties to the appeal enter their appearance before the Court. Rule 24 requires each party to file a complete statement of its case with the Court. Rule 25 directs that the appeal be set down and scheduled for hearing by the Court. Rule 26 empowers the Court to manage the conduct of the hearing and to issue such directions as may be necessary.

The Court explained that Rule 27 of Order XXI empowered the Court to order that a Government‑funded advocate be engaged for an accused who did not have an advocate of his own choice recorded on the case file. The same rule required that the Court issue a notice to an accused who was unrepresented on the scheduled hearing date of the appeal. The rule further permitted the accused, if he wished, to set out his case in writing and allowed the Court to consider that written argument during the hearing. Sub‑rule (2) of Rule 27 removed the requirement that a person in custody be physically produced before the Court when the appeal was being heard. The Court noted that the Rules did not contain any specific provision dealing with a situation where the appellant, who was also the accused, was absent and unrepresented at the hearing of the appeal. However, Order XLV, Rule 5 preserved the Court’s inherent authority to make any order necessary to achieve the ends of justice or to prevent abuse of its process. Consequently, the Court held that it possessed the power to prevent misuse of its procedure and that it would constitute an abuse of process if an appellant, after being duly notified of the hearing date, deliberately chose to remain absent. The Court further observed that, in the same way it could dismiss an appeal under Rule 18 of Order XXI for non‑prosecution when the appellant failed to take steps to bring the appeal before the Court, it also had a comparable power to dismiss an appeal when the appellant was not present or was not represented. The Court asserted that even if the appellant’s absence resulted from his death, the situation still amounted to non‑prosecution, and therefore the Court was entitled and obliged to dismiss the appeal.

The Court emphasized that the right to prosecute an appeal vested exclusively in the appellant himself, and that no other person could claim that right unless a statute expressly conferred it on that other individual. The Court pointed out that such a statutory grant could be explicit, as provided in Order XXII of the Code of Civil Procedure, or it could be implied, as it was in Section 431 of the Code of Criminal Procedure. The Court recognized that criminal proceedings involve a personal dispute between the State and the accused, and that the right of appeal is likewise a personal right belonging to the appellant. Accordingly, the Court stated that another person could not exercise the appellant’s right of appeal unless a law authorized such substitution or unless a recognized legal principle permitted it. The Court noted that there was no explicit provision allowing the legal representatives of a deceased appellant to substitute for him in a criminal appeal filed before this Court by way of special leave. Nevertheless, the Court said that it must keep in mind the policy underlying Section 431 of the Code, which provides that every criminal appeal under Chapter XXXI would abate, except for an appeal against a sentence of fine. This policy indicated that the law opposed allowing the heirs or successors of a deceased appellant to continue an appeal that challenged his conviction and imprisonment.

In chapter XXXI, an appeal will cease unless it is an appeal against a fine. Accordingly, there is no principle that would permit the legal heirs of a deceased person to continue an appeal that the deceased had filed challenging his conviction and imprisonment. The statutory policy clearly opposes such continuation. Only a person who is capable of properly representing the deceased appellant may be entered on the record in his place and may prosecute the appeal. That principle underlies Order XXII of the Code of Civil Procedure. The same principle has been followed by the courts of England when the appellant’s challenge was limited to a fine, allowing the executors or administrators of the deceased to continue the appeal.

An illustration is the case of Hodgson v. Lakeman (1). In that case Viscount Caldecote CJ permitted the executors of the deceased appellant, who claimed an interest in the appeal against a conviction and a fine, to prosecute the appeal. Although the fine was modest, it would have been a liability on the estate, and therefore the executors had a sufficient interest to seek its removal. That approach was later distinguished in Regina v. Rowe (2). In that case the widow of the deceased appellant applied for leave to prosecute an appeal in which her husband had been convicted on four counts of obtaining money by false pretences and sentenced to eighteen months’ imprisonment. The widow argued that the conviction adversely affected her employment prospects and social standing, and that if “interest” were the test, she too possessed an interest. Lord Goddard CJ rejected that argument, holding that the Court could not take notice of a non‑pecuniary interest.

The Court further observed that even where a person might be prejudiced by a conviction of a deceased relative, and an appeal had been filed before death, the proper remedy would be an application for a pardon, not the continuation of the appeal by the heirs. In his judgment he stated: “............... 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 paying the fine, the court might be asked to allow executors or administrators to appeal solely on the ground that, should the conviction be set aside, the fine could be recovered for the benefit of the deceased’s estate, which the executors are obliged to administer. In Hodgson v. Lakeman(1), a case before the Divisional Court, the appellant was dead, yet the court permitted the executors to continue the appeal because a pecuniary interest existed. Suppose, for example, a man is convicted on indictment and fined five hundred pounds; the fine must be paid, and the Crown can recover that sum whether the convicted person is alive or dead, because it may be recovered from his estate. Consequently, it would be unjust to prevent the executors from appealing and contending that the conviction was erroneous, since a successful appeal would preserve the money for the estate. It may appear artificial to suggest that an appeal is permissible when a pecuniary penalty has been imposed, but not when corporal punishment or imprisonment has been ordered; nevertheless, in the present case there is no discernible interest that can be identified. While a widow might be glad to see her husband’s name cleared, such sentimental interest cannot be taken into account. No one is presently affected by the court’s judgment because the judgment consisted of a sentence of imprisonment and the prisoner has died. To permit an appeal under these circumstances would constitute a novel step. In Short and Mellor’s (The Practice on the Crown Side of the King’s Bench Division, second edition) at page 425, it is observed that the practice is not uniform and references are made to various cases. In Hesketh v. Atherton(1) counsel was allowed to argue an appeal after one of the parties had died. By contrast, in Leach v. Wanstead School Board(2), where a conviction against a father for failing to send his child to school was appealed after the father and child had died, the court refused to allow the case to be argued because no interest survived. In Siberry v. Connolly(3), where a claim for a seaman’s wages was involved, the appellant’s executors were permitted to take the place of the deceased appellant. In Constantine v. Illingworth(4), where the defendant in a criminal case had died, the court ordered the case to be struck out, a course also taken in Jones v. Fallowfield(5). In Rivers v. Glasse(6), where the respondent had died and the appellant had given notice to the executors to support the conviction, the court heard and determined the case and awarded costs to the respondent’s executors.

In this case the Court observed that the trial court had allowed the executors of the deceased respondent to support the conviction, had heard the matter, had rendered a decision, and had awarded costs to the respondent’s executors. The Court then set out the position prevailing in the United States, stating that “the death of an accused ordinarily abates a criminal action, including review proceedings pending at that time.” The Court cited United States v. Mook(8), where it was held that the interest of the deceased’s representatives or next of kin in clearing his good name was not sufficient to permit the appellate court, after the defendant’s death and while his appeal from a conviction for violating the Interstate Commerce Act was pending, to decide the appeal on its merits. The United States court, however, added the observation that “it may not be amiss to say that it seems to us that the next‑of‑kin of a convicted person who dies pending an appeal have an interest in clearing his good name, which Congress might well believe would justify a change in the law.” Accordingly, the American position recognised that any intervention by heirs or executors rested on the survival of a pecuniary interest, and where the estate was not affected by the conviction, there was no ground for permitting such intervention. The Court noted that, unless the legislature expressly recognized an interest for heirs to clear a deceased convict’s name, the court could not act upon it.

The Court further explained that, for the present appeal, the sole question was whether the conviction and the sentence of imprisonment were legally correct. The only party who could have shown that the conviction and sentence were unjustified was the appellant himself, and because he was deceased, his interest ceased to exist and could not be transferred to anyone else. The Court mentioned another matter referred to at the bar, namely The State of Kerala v. Narayani Amma Kamala Devi(1), which relied on the decision in Pranab Kumar Mitra’s case(2) and referred to Imperatrix v. Dongaji Andaji(3). In that matter the issue was whether the High Court could exercise its revisional powers against an accused after the accused’s death, a question distinct from the powers of this Court to consider a criminal appeal brought by special leave. The Court noted that the present applicants claimed an interest because the estate of the deceased appellant would be enriched by Rs 40,000/‑ if this Court ultimately declared the appellant innocent and if the Government, acting on the binding decision of this Court, rescinded the suspension order that had been passed against the appellant. The Court characterized this interest as contingent rather than a direct pecuniary right flowing from the Court’s judgment.

The Court noted that the Government, in accordance with the judgment, disbursed the arrears of salary that were due to the appellant and continues to make such payments as required. The Court described this payment as an interest that is not direct, because it cannot arise from the Court’s decision even if that decision favours the appellant and does not constitute a direct legal right. Consequently, the only interest that the applicants claim to possess is a contingent interest, which does not flow directly from the ultimate decision of this Court or any other benefit. The Court referred to the argument advanced in Rowe’s case(4) before Lord Goddard C.J., where it was suggested that clearing a deceased husband’s name would improve the widow’s chances of obtaining employment. That argument was rejected as failing to create a pecuniary interest sufficient to justify granting the widow permission to prosecute the appeal. The Court observed that the legislature, by limiting the survival of appeals in 431 of the Code to appeals against sentences of fine, has recognised only one category of interest and not a broader claim. Counsel suggested that several other kinds of interest might exist. The Court held that, by exercising its inherent or discretionary powers, it could not recognise a type of interest not provided for by the legislature. The Court cited authorities in (1)[1962] Supp. 3 S.C.R. 943, (2)[1959] Supp. 1 S.C.R. 63, (3)(1879) I.L.R. Bom. 564 and (4)[1955] 1 Q. B.D. 573 in support of this principle. Thus, the Court reaffirmed that no additional basis for granting the petition existed. In the circumstances, the Court concluded that the applicants should not be granted leave to prosecute the appeal. Accordingly, leave to prosecute the appeal was refused.