IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 Crl.Rev.Pet.No. 1802 of 2009() ------------------------------ CRA.157/2002 of II ADDL.SESSIONS COURT, KOLLAM CC.837/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................... REVN. PETITIONER(S)/LEGAL HEIRS OF THE APPELLANT/ACCUSED ---------------------------------------------------------------------- 1. OMANA, W/O.LATE SURENDRAN PILLAI, AGED 49 YEARS, CHERUSSERI PUTHEN VEEDU, PERUMANNUR, EDAMULACKAL VILLAGE, PATHANAPURAM, KOLLAM. 2. SUBHASH, S/O.LATE SURENDRAN PILLAI, AGED 25 YEARS, CHERUSSERI PUTHEN VEEDU, PERUMANNUR, EDAMULACKAL VILLAGE, PATHANAPURAM, KOLLAM. BY ADV. SRI. K.SIJU SRI.A.MUHAMMED RAFFI RESPONDENT(S): RESPONDENT/COMPLAINANT AND STATE ------------------------------------ STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, ANCHAL RANGE THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1802 of 2009 -------------------------------------- Dated this the 9th day of June, 2009. ORDER Public Prosecutor takes notice for respondent. 2. This revision is in challenge of the judgment of learned II Additional Sessions Judge, Kollam in Crl.Appeal No.157 of 2002 dismissing a criminal appeal as abated as none of the legal representatives of the deceased appellant sought permission of the court to continue the appeal. 3. Appellant/accused faced trial in the court of Judicial First Class Magistrate-I, Punalur in C.C.No.837 of 1997 for offence punishable under Section 55(a) of the Abkari Act (for short, “the Act”). Charge was that on 17.2.1997 at about 6.15 p.m. he was found possessing and carrying about ten litres of illicit arrack. Learned magistrate found the appellant guilty, convicted and sentenced him to undergo rigorous imprisonment for three months and to pay fine of Rs.25,000/- with default sentence for two months. Appellant/accused preferred Crl.Appeal No.157 of 2002 challenging that conviction and sentence. During the pendency of the appeal appellant died on 14.2.2005. None of his legal representatives sought leave of the appellate court to continue the appeal. Hence by the impugned judgment appeal was dismissed as abated. Legal Crl.r.P.No.1802/2009 2 representatives of the appellant have filed this revision claiming that they were not aware of the pendency of Crl.Appeal No.157 of 2002 and hence, could not seek permission of the appellate court to continue the appeal. 4. Learned counsel for petitioners contend that in view of the proviso to Section 394(2) of the Code of Criminal Procedure appeal could not abate since there is a composite sentence of imprisonment and payment of fine. Learned counsel placed reliance on the decisions in State of A.P. v. Narasimha Kumar (2006 (3) KLT 505-SC) and Mani Madavalappil v. C.I. of Police (2007 (2) KLT 400). In these decisions it has been held that when there is a composite sentence of imprisonment and fine, death of appellant would not abate the appeal. In the circumstances, dismissal of the appeal as abated cannot be sustained. Resultantly, this revision is allowed. Judgment under challenge is set aside and the case is sent back to the court of learned II Additional Sessions Judge, Kollam for disposal in accordance with the procedure laid down. It will Crl.r.P.No.1802/2009 3 be open to the petitioners to seek permission of the appellate court to continue the appeal. Petitioners shall appear in the court of II Additional Sessions Judge, Kollam on 3.7.2009. Crl.M.A.No.5468 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks