IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 Crl.Rev.Pet.No. 2155 of 2009 ------------------------------ CRA.245/2001 of ADDL. SESSIONS COURT (ADHOC), KOZHIKODE CC.1038/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I,KOYILANDY .................... REVN. PETITIONERS: REV.PETITIONERS/LEGAL HEIRS OF THE APPELLANT/ LEGAL HEIRS OF THE ACCUSED: --------------------------------------------------------------------------------------------------------------- 1. SOUDAMINI, W/O. LATE SREEDHARAN, 2. RAJESH, S/O. LATE SREEDHARAN, 3. RINEESH, S/O.LATE SREEDHARAN, ALL ARE RESIDING AT THAZHECHERUKUNNUMMAL HOUSE, PURAKKAD AMSOM AND DESOM, KOYILANDY. BY ADV. SMT.K.M.BEENA RESPONDENT: RESPONDENT/COMPLAINANT. ----------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.S.HRITHWIK. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: app/- THOMAS. P. JOSEPH, J ================ Crl.R.P.No.2155/2009 ================ Dated this the 6th day of July 2009. O R D E R ======= Heard counsel for petitioners and the Public Prosecutor who appeared for respondent. 2. Petitioners are the legal representatives of appellant who died pending the appeal. He was challenging his conviction and sentence of imprisonment and fine entered by learned Judicial Magistrate of First Class, Quilandy in CC.No.1038/1997 for offence punishable under section 55(a) of the Abkari Act. In the course of Appeal, he died. That fact was taken note of by learned Additional Sessions Judge while hearing the Crl. Appeal (No.245/2001). Learned Additional Sessions Judge referred to the facts of the case, evidence adduced by the prosecution and stated that evidence revealed that appellant was in possession of the contraband. Learned Additional Sessions Judge observed that on account of death Crl.R.P.No.2155/2009 2 of appellant the appeal to the extent that related to imprisonment portion is abated. The appeal was ultimately dismissed observing that the sentence of imprisonment will stand abated. Petitioners are challenging the legality and prepositions of the dismissal of the appeal. 3. The appeal was against conviction and sentence of imprisonment and fine. As per the decision of Supreme Court in State of Andhra Pradesh Vs. Narasimha Kumar [(2006(3) KLT 505] , followed by this court in Mani Madavalappil Vs.C.I. of Police [2007(2) KLT 400], appeal cannot abate u/s.394 of the Code of Criminal Procedure when sentence is imprisonment and fine. Learned Additional Sessions Judge was not correct in holding that the appeal to the extent it concerned sentence of imprisonment stood abated. 4. Petitioners say that they were not aware of the pendency of the appeal and hence could not seek permission of the Appellate Court to prosecute the appeal further. On hearing learned counsel, I am inclined to think Crl.R.P.No.2155/2009 3 that petitioners should be given an opportunity to seek permission of the Appellate Court to prosecute the appeal further. Resultantly, this revision is allowed. Judgment of learned Additional Sessions Judge (ADHOC-1), Kozhikode in Crl. Appeal No.245/01 is set aside and the appeal is remitted to that court for fresh disposal on merit. It will be open to the petitioners to seek permission of the appellate court to continue the appeal. Petitioners shall appear in the appellate court on 10.8.2009. THOMAS. P. JOSEPH, JUDGE app/-