IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 Crl.Rev.Pet.No. 1066 of 2002() ------------------------------ CRA.81/2000 of ADDL.SESSIONS COURT, KOTTAYAM CC.123/1997 of JUDL. MAGISTRATE OF FIRST CLASS, KOTTAYAM .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------------------------------- REV.BISHOP K.M. CHACKO, C.M.S. BISHOP'S HOUSE, KOTHALA P.O., PAMPADY. BY ADV. MR.BECHU KURIAN THOMAS RESPONDENT(S): RESPONDENT/COMPLAINANT: ------------------------------------------------------------------------- 1. P.S. JAYAPRAKASH, SREENILAYAM, S.N. PURAM P.O., KOTHALA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS.MR.K.GOPALAKRISHNA KURUP, MR.S.MANU. R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/04/2009, THE COURT ON 08/06/2009 PASSED THE FOLLOWING: Kss ORDER ON CRL.M.P.NO.5707/2002 IN CRRP.NO.1066/2002 DISMISSED 8/06/2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.1066 OF 2002 () ----------------------------------- Dated this the 8th day of June, 2009 O R D E R Concurrent verdict of guilty rendered against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act', is challenged by him in the revision. The learned Magistrate, after trial, convicting him of the offence sentenced him to undergo simple imprisonment for six months. In appeal, the Additional Sub Judge Kottayam, confirmed the conviction and upheld the sentence without any modification. Questioning the legality, propriety and correctness of the conviction and sentence, concurrently held by both the courts below, the revision has been filed. 2. When the revision was taken up for hearing, it was reported that the accused is no more; and, his counsel requested for closing the proceedings as abated. The learned CRRP.1066/02 2 counsel appearing for the complainant, however, urged for disposal of revision on merits, submitting that the death of the accused after the revision being admitted and taken on file by this Court, does not lead to abatement of the proceedings and the revision has to be disposed on its merits. It was also submitted by the counsel that at the time of admitting the revision suspension of the sentence imposed against the accused was ordered subject to the condition of depositing one half of the cheque amount, and, according to the counsel, disposal of the revision on merits would enable the complainant atleast to collect the amount deposited by the accused as compensation if appropriate orders are passed by this Court modifying the sentence. After successful prosecution, ending in the conviction of the accused, which was confirmed in appeal also, if the entire proceedings are treated as abated on account of the death of the accused during the pendency of the revision filed by him against his conviction, it is the submission of the counsel, it would cause irreparable hardship and injury to the complainant, and further, it would amount to miscarriage of justice. Though on the death of the accused/revision petitioner, the engagement CRRP.1066/02 3 given to his counsel has ceased the counsel for the petitioner and also the complainant were requested to enlighten the legal aspects emerging on the death of the accused after the revision has been admitted and taken on file. Adv.Sri.Bechu Kurian Thomas, who appeared for the revision petitioner, while expressing his inability to act as an Amicus curie of the Court, placed before me the legal principles for consideration in resolving the question arising for consideration. The learned counsel appearing for the complainant, Adv.Sri.K.Gopalakrishna Kurup also brought to my notice the decisions of the apex court and also of this Court, which have a bearing on the question. I place on record my appreciation for the valuable assistance rendered by the respective counsel. 3. The following questions emerge for consideration in the revision: i). Whether on the death of the revision petitioner/accused, the revision filed by him against his conviction and sentence, after heing admitted and taken on file, abate interdicting the court from having any further enquiry over the matter? ii) If there is no such abatement under law can CRRP.1066/02 4 the revisional court modify the sentence imposed against the accused (deceased) as may be warranted to advance the ends of justice? These two points can be considered together in the facts and circumstances involved and the law applicable. Though the learned counsel appearing for the revision petitioner, Adv.Sri.Bechu Kurian Thomas refrained from setting forth a challenge that the revision against the conviction and sentence preferred by the accused admitted and taken on file abated on the death of the revision petitioner/accused it was urged that this Court is interdicted from passing any orders causing injury to the accused in the proceedings of revision after his death. The learned counsel, inviting my attention to Section 401 (2) of the Cr.P.C. contended that any order passed by this Court after the death of the accused in the revision filed by him would amount to an order to his prejudice. Reference was also made to the dictionary meaning of 'prejudice' in Blacks Law Dictionary and also the Law Lexicon to contend that any order passed in the revision, after the death of the accused, would tantamount to a violation of the interdiction under Section 401 (2) of the Cr.P.C. as it would CRRP.1066/02 5 cause prejudice to the accused. Any modification of the sentence, converting the substantive term of imprisonment to fine or compensation as desired by the complainant, in the revision presented by the accused, after his death, according to the learned counsel, would amount to change of mode of punishment without notice to the accused. The learned counsel for the revision petitioner placed reliance on Jangal Prasad v. The State (AIR 1953 SC 467) to sustain that line of argument and contended that no such modification of sentence is permissible in the present revision under law. According to the learned counsel, any alteration of sentence converting simple imprisonment to fine or payment of compensation will also amount to enhancement of justice. On the other hand, the learned counsel for the revision petitioner, Adv.Sri.K.Gopalakrishna Kurup, relying on State of Kerala v. Narayani Amma Kamala Devi and others (AIR 1962 SC 1530), Pranab Kumar Mitra v. State of West Bengal and another (AIR 1959 SC 144) and Viswanathan v. State of Kerala (2006 (3) KLT 539) contended that even after the death of the revision petitioner/accused, the revision would survive and the CRRP.1066/02 6 revisional court can pass appropriate orders on the sentence. Countering the arguments advanced by the learned counsel for the revision petitioner that alteration of sentence of imprisonment to fine or payment of compensation would amount to enhancement of sentence, the learned counsel for the complainant submitted that imposition of fine instead of imprisonment can only be considered as a lesser sentence and it will not amount to enhancing of the sentence. Reliance was also placed on Devu v. Excise Circle Inspector (1986 KLT 413) to sustain that proposition. Highlighting that the very purpose of empowering the superior courts with revisional jurisdiction over the orders passed by the inferior courts is to avoid failure of justice, the learned counsel urged that grave injustice would be inflicted upon the complainant if he is denied of atleast getting compensation of the cheque amount after his case had been accepted and punishment imposed against the accused, which was confirmed in appeal also, solely for the reason of the death of the accused, during the pendency of the revision preferred by him against his conviction and sentence concurrently founded by two inferior courts. CRRP.1066/02 7 4. It is trite law that once revision is admitted and taken on file, it has to be disposed in accordance with its merits. There is no question of abatement of a revision as envisaged under Section 394 of the Cr.P.C., dealing with abatement of appeals. The apex court, considering the question whether on the death of the accused, the revision filed by him against the conviction would abate, has held in Pranab Kumar's case (supra), as thus: “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 recognised rules of criminal jurisprudence, and that subordinate criminal courts do not exceed their jurisdiction, or abuse their orders vested in them by the Code. The High court is not bound to entertain an application in revision, or having entertained one, to order substitution in every case. It is not bound the other way, namely, to treat a pending application in revision as having abated by reason of the fact that there was a composite sentence of imprisonment and fine. The High Court has been left complete discretion to deal with a pending matter on death of the petitioner in accordance with the requirements of justice. The petitioner in the High Court may have been an accused person who has been convicted and sentenced, or he may have been CRRP.1066/02 8 a complainant who may have been directed under S.250 of the Code to pay compensation to an accused person upon his discharge or acquittal. Whether it was an accused person or it was a complainant who has moved the High court in its revisional jurisdiction, if the High Court has issued a rule, that rule has to be heard and determined in accordance with law, whether or not the petitioner in the High Court is alive or dead, or whether he is represented in court by legal practitioner. In hearing and determining cases under S.439 of the Code, the High Court discharges its statutory function of supervising the administration of justice on the criminal side. Hence, the considerations applying to abatement of an appeal, may not apply to the case of revisional applications.” In State of Kerala v. Narayani Amma Kamala Devi and others (AIR 1962 SC 1530), propriety, correctness and legality of the order passed in a revision entertained at the instance of the legal heirs of the convicted accused, after his death, against his conviction and sentence, arose for consideration and the apex court held that in a proper case, the High Court can exercise the powers of revision over an order made against the accused person even after his death. This Court in Viswanathan v. State of Kerala (2006 (3) KLT 539), has followed the same principle in holding that in a proper case, the High Court can exercise the power even after CRRP.1066/02 9 the death of the accused and the revision filed by him would survive and the court can pass appropriate orders with regard to the sentence of fine. In all the above reported decisions, the revisions had been filed by the accused or the legal heirs of the deceased accused, after his death, was canvassed by the learned counsel appearing for the revision petitioner to urge that exercising revisional jurisdiction in their favour annulling the sentence imposed against the deceased/accused cannot be equated to a case where an order is sought against the deceased/accused in the revision preferred by him, by the opposite party. I do not find any merit in that submission, since, the primary question is whether on the death of the accused, the revision preferred by him abates interdicting the court from exercising its jurisdiction in passing appropriate orders as are necessary to advance the ends of justice, whether it is favourable to the accused or to the opposite party, and that depends on the facts and circumstances and also the merits of the case. There is also no merit in the submission of the counsel for the revision petitioner that this Court would be violating the interdiction under Section 401 (2) of the Cr.P.C. in passing an order adverse to the CRRP.1066/02 10 accused after his death in the revision preferred by him. Revision is preferred by the accused against his conviction and sentence. Once it has been taken on file, whether the revision petitioner/accused appears in person or pleader or not, to present his case, this Court is bound to dispose the revision on its merits in accordance with law. The interdiction covered by Section 401 (2) of Cr.P.C. is only to the extent that no order shall be made in exercise of revisional jurisdiction to the prejudice of the accused or other person proceeded against without providing him an opportunity of being heard in person or by his pleader, and that alone is the interdiction and nothing more. In the revision presented by the accused, after his death, it was open to his legal heirs to approach this Court and seek permission to prosecute the proceedings, but, they have not done so. Merely because of the death of the revision petitioner or on account of wilful absence or default of his legal heirs to pursue the revision, the jurisdiction of this Court to decide the revision, after it has been taken on file, on its merits does not cease. So much so, I find that this Court is fully empowered and is bound to pass appropriate orders in the present revision in exercise of its revisional jurisdiction as CRRP.1066/02 11 are required to advance the ends of justice. 5. Both the courts below have concurrently found the accused guilty of the offence under Section 138 of the N.I.Act. The accused, who held the office of Bishop, a reverent and highly dignified religious post, on his conviction was sentenced by the trial Magistrate to undergo simple imprisonment for six months, which was confirmed in appeal by the Sessions Judge. After perusing the materials produced, I find the conviction is fully supported by the legal evidence tendered in the case, and it is unassailable. As regards the sentence imposed, the question to be considered is whether alteration of his sentence from the imprisonment imposed, which has now become ineffective on account of his death, to fine or compensation as prayed for by the complainant is permissible or not. Sweep of revisional jurisdiction is wide and extensive to pass appropriate orders as are necessary to advance the ends of justice. I need only to take note of the observations of the apex court in the decision cited earlier namely Pranab Kumar Mitra v. State of West Bengal and another (AIR 1959 SC 144), where it has been held thus: CRRP.1066/02 12 “The High Court has complete discretion to deal with a pending matter on the death of the petitioner in accordance with the requirements of justice.” What are the requirements of justice has to be looked into and analysed with reference to the totality of the facts and circumstances involved and not whether it is favourable to the accused or the complainant. That being so, in the revision preferred by the accused, after his death, if the ends of justice demand an order favourable to the opposite party and adverse to the accused, the discretion of this Court has to be exercised for passing appropriate orders as required to meet the ends of justice. I do not find any merit that alteration of sentence of imprisonment to fine or compensation amounts to enhancement of sentence. That question is settled by the decision of this Court in Devu v. Excise Circle Inspector (1986 KLT 413), wherein, it has been held any amount of fine in lieu of substantive period of imprisonment cannot be taken as an enhancement of the sentence. 6. Cheque amount covered by the proceedings is shown CRRP.1066/02 13 to be Rs.40,000/-. Complaint in the case was filed as early on 9.4.1997. The death of the accused during the pendency of the revision is also to be taken into account in modifying the sentence. Having regard to the proved facts and circumstances, upholding the conviction the sentence of imprisonment imposed against the accused, is modified as of fine of Rs.30,000/-, which on realisation is directed to be released to the complainant, as compensation under Section 357 (1) of the Cr.P.C. One half of the cheque amount, which is stated to be under deposit in the court below pursuant to orders passed in the revision suspending the sentence of the accused, shall be released to the complainant on production of a copy of this judgment, and the rest as and when realised on taking appropriate steps as provided by law. Revision is disposed as above. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.1066 OF 2002 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 8th June, 2009