IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 CRL.REF.No. 10 of 2008() ------------------------ SC.164/1999 OF THE ASSISTANT SESSIONS COURT, VADAKARA CRIMINAL REFERENCE REGISTERED ON THE BASIS OF LETTER DATED 15/2/2008 FROM THE ASSISTANT SESSIONS JUDGE, VATAKARA. .................... SUO MOTU PARTY STATE OF KERALA. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB. THIS CRIMINAL REFERENCE HAVING COME UP FOR ADMISSION ON 05/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.Ref. No. 10 of 2008 ------------------------------------------------- Dated this the 5th day of December, 2008 ORDER This Crl. Reference has been registered on the basis of a report received from the Assistant Sessions Judge, Vatakara, through the Sessions Judge, Kozhikode. It is prayed that appropriate orders may be passed against the final disposal of Crl.A.No.389/01 on 30/1/03 by the Additional Sessions Court, Vatakara. 2. An accused – one Rajan, was found guilty, convicted and sentenced under Sec.55(a) of the Kerala Abkari Act. He was sentenced to substantive sentence of imprisonment as also fine. He preferred an appeal and the appeal was disposed of by the Additional District & Sessions Judge, Vatakara, as per the judgment dated 30/1/03 in Crl.A.No.389/01. The judgment of the court reads as follows: Crl.Ref. No. 10 of 2008 -: 2 :- “The challenge in the appeal with regard to the conviction entered against the appellant, who was the accused in S.C.No.164/99 of Assistant Sessions Court, Vatakara, for the offence under Section 55 (a) of Abkari Act and Rule 9 of Foreign Liquor Rules and the sentence of simple imprisonment for two years and of fine of Rs. one lakh and in default of payment of fine, the accused shall undergo S.I. for a further period of 6 months. On hearing the appeal, it is reported by the appellant counsel that the accused had expired. Hence charge against the appellant be abated and appeal closed.” (emphasis supplied) 3. The learned Assistant Sessions Judge attempted to execute the sentence of fine and it was then realised that not only the appeal was held to be abated but the charge was also held to be abated. The learned Assistant Sessions Judge further noted that the appeal was disposed of as abated on the ground that the appellant had expired overlooking the fact that there is a sentence of fine also. Under Sec.394(2) Cr.P.C. all appeals other than appeals under Secs.377 and 378 Cr.P.C. shall abate on the death of the appellant if such appeal is not an appeal from a sentence of fine. In the instant case, the appeal was against a Crl.Ref. No. 10 of 2008 -: 3 :- sentence of fine also. 4. In these circumstances, it must be held that the disposal of Crl.A.No.389/01 otherwise than on merits under Sec.394(2) Cr.P.C. holding that not only the appeal but the charges also abated is blatantly incorrect and illegal. 5. I am, in these circumstances, satisfied that the said judgment dated 30/1/03 in Crl.A.No.389/01 deserves to be set aside. 4. This reference is accordingly allowed. The judgment dated 30/1/03 in Crl.A.No.389/01 by the Additional District & Sessions Judge, Vatakara, is hereby set aside. The learned Sessions Judge shall now dispose of Crl.A.No.389/01 afresh in accordance with law. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.Ref. No. 10 of 2008 -: 4 :-