'1 S:C.R.

SUPREME COURT REPORTS 237

HARIDAS DAS AND ANR. v.

STA TE OF WEST BENGAL AND ORS.

[A. K. SARKAR, M. HIDAYATULLAH AND J. R. MUDHOLKAR,

JJ.]

Penal Code-Bringing a false charge of a commission of an offence-The offence charged need not be a crimi., a!

offence-It may be an offence under a special !aw like Contempt of Court Act-Whether a proceedi."g under Contempt Court Act a criminal proceeding-Indian Penal Code, 1860 (45 of 1860), ss. 40, 41 and 211.

The appellants were ordered to be proceeded against und:er ss. 193, 199 and 211 of the Indian Penal Code, 1860. They

apvealed to this Court against that order under certificate granted under Art. 134(1) (c) of the Constitution.

It was contended before this Court that for a person to be charged and Vied under s. 211 Penal Code he must either have instituted a criminal proceeding or caused such proceeding to be instituted or he must have falsely charged a person with having committed a criminal offence and since what the appellants did was to initiate a proceeding for committal for contempt of court they cannot be proceeded against under s. 211 Penal Code.

Held: (per Sarkar, J.) Assuming that a proceeding for committal for contempt of court is not a criminal proceeding within the meaning of s. 211 Penal Code, falsely charging a person with commission of an offence would be an offence under that section. When that section .says that an offence under it may be committed by falsely charging a person with the commission of an offence it does not intend that the offence must be one whiCh gives rise to a criminal proceeding. Offence is defined by s. 40 of the Penal Code meaning an offence under the Code or under any special law and taking the definition of the special law contained in s. 41 as meaning a law applicable to particular subject it will be seen that an offence under Contempt of Court Act is an offence within the ambit of s. 211. The appellants have by falsely bring a cHarge of Contempt of Court made themselves liable to be prcceeded against under s. 211 Penal Code.

Empress v. Jamoona, (1881) I.L.R. 6 Cal. 620, Karim Buksh

v. Queen Empress, (1890) I.L.R. 17 Cal. 574 and Queen Empress

v. Karigowda, (1895) I.L.R. 19 Bombay 51, distinguished.

(per Hidayatullah, J.}: There can be no doubt that the institution of contempt of court proceedings is institution of criminal proceedings because a contempt of court can be punished by imprisonment and fine and that brings an accusation charging a man with contempt of court within the expression "cri'!)inal proceedngs" in s. 211 Penal Code. Such proce<; dings wee described . as quasi riminal proceedings by Privy o:unc1l because with proceedmgs are not tried under the Cnmmal Procedure Code. That Code is not exhaustive of criminal proceedings and punishments of contempt by summary proceure bef!'re the superior courts are special criminal proceedmgs which the Code of Criminal Procedure does

MarcA 16

1961 not even regulate. The High Court has therefore acted with

B "da -dA jurisdiction to order a prosecution under s. 211 Pl'!nal Code. an a Das an nr. v. (per Mudholkar, J.): Making a false charge before any S1a1e of w .. i Bengal person, whosoever he may be is covered by s. 499 Indian Penal

untl Others Code. Section 211 Indian Penal Code is applicable to a case where a false charge is made by the accused person against another before a person competent to enquire into it and either take proceedings himself or cause proceedings to be initiated. It is not limited to false charges made to a person whoalso has the power to try the accused or commit him for trial by other court.

8arkar, J.

(iil It would not be right to read the words or "falsely charges" as being in any way restricted by the words "institute or causes to be instituted any criminal proceeding". The Legislature has clearly prpvided for two kinds of acts, one the institution of proceedings and the other of making a false charge and there is no compelling reason for reading the section as if it is limited to institution of a complaint upon a false charge.

(iii) The word offence under s. 211 would also include a thing punishable under a special law and the law of contempt being a special law an offence under Contempt of Court Act wou!CI be an offence under s. 211 and therefore th" order of the High Court was right.

CRIMINAL APPELLATE JURISDICTION-Criminal Appeal No. 141 of 1961. Appeal from the judgment and order dated January 5, 1959 of the Calcutta High Court in Civil Revision No. 3 of 1957.

Sarjoo Prasad and P. K. Chatterjee, for the appellants.

Niharendu Dutt Majumdar, P. K. Chakravarty and P. K.

Bose, for respondent No. I.

S. C. Majumdar, for respondents Nos. 2 to 4.

March 16, 1964. The following judgments were delivered.

SARKAR, J.-The High Court at Calcutta made an order directing the Registrar of the Court to file a complaint in the Court of a magistrate against the appellants under ss. 211, 199 and other appropriate sections of the Indian Penal Code.

The Registrar thereupon filed a complaint against the appellants under ss. 193, 199 and 211 of the Code. The appellants have appealed against ihe order of the High Court under a certificate granted under Art. 134(l)(c) of the Constitution.

It appears that the appellants had moved the High Court for committal for contempt of court of certain respondents. whom I will call the Monda! respondents, for breach of an injunction issued in a suit. That injunction prohibited the respondents from disturbing the appellants' possession of some property. It was said by the appellants. that the Mondl re.spondents attempted to enter forcibly into the properties m

. ..

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SUPRElllE COURT REPORTS 239

breach of the injunction and "in the course of such attempt 1961 .broke open the gate, cut down one tree and also broke down Harida.-! ~; n<I Anr.

the gate". The High Court ieferred the matter to the Subv. ordinate Judge for a report on the allegation about breach State

01 J:!'•Ot•t1Bengal 'd . f h ••• "'' .of injunction and on a cons1 eratJon o t at report came to

the conclusion that the appellants "could not reasonably be Sarkar, J. believed" and expressed its agreement with the Subordinate Judge's view that "the allegations made by the petitioners are not true". The petitioners referred to are the appellants.

The petition for committal for contempt of court was thereupon dismissed. Thereafter the Monda! respondents moved the High Court and obtained the order directing a complaint to be lodged as earlier mentioned. Their case was that deliberate false statements had been made in affidavits used by the appellants in connection with their application for the committal of the Monda! respondents for contempt of court.

Mr. Sarjoo Prasad appearing for the appellants has first said that the order in so far as it directed a complaint under ss. 193 and 199 of the Code could not be supported as there was no definite finding in the order dismissing the application for contempt of court that any false statement had been made. I have earlier set out the relevant parts of that order and I think that it contains such a finding. The High Court held that "the allegations ............ are not true". It is unnecessary to pursue this question further for Mr: Sarjoo Prasad's contention is obviously unsustainable.

Another point made by Mr. Sarjoo Prasad was that there was no case for lodging a complaint under s. 211 of the Code. He said that in order that an offence under that section might be committed by a person, he must either have instituted a criminal proceeding or caused such proceeding to. be intituted o~ he must have falsely charged a person with havmg committed an offence. It was said that the appellants culd not be said to have done any of these things. His conkt1tlon was that, what they had done was to start a proceed!ng for committa.l or contempt of court and such proceedmg was not a crunmal proceeding.

I will assume that a proceeding for committal for con- !Cmpt of court is nt a criminal proceeding within the meanmg of that expression as used in s. 211. On this basis no doubt, it cannot be said that the appellants had instituted or c:iusect to be instituted any criminal. proceeding. But the sect1n . also says that falsely charging a person with the comm1ss1on of an offence would be an offence under it and it seems to me that the appellants did so charge the Monda! respondents. Mr. Sarjoo Prasad's answer was that the charge

SUPREME COURT REPOR'.L'S [19641

1964 contemplated by the section had to be a charge which would Haricltu Daaand A.-. give rise to a criminal proceeding. I am unable to agree. v.

Btate of West Ben_qal Mr. Sarjoo Prasad based his contention on three cases, and Others none of which, in my opinion, supports him. The first case

J was of Express v. Jamoona('). There it was held that the Sarkar, . charge had to be made to a person competent to act upon it, a person having the power to investigate and send up for trial. The next case was Karim Buksh v. The Queen Empress(') and it held that the making of a false complaint to the police of a cognizable offence was the instituting of a criminal proceeding within the meaning of that expression in the second paragraph in s. 211 which entailed a higher punishment. The last case referred to was Queen Empress v.

Karigowda(') where it was held that the words 'falsely charging' in s. 211 were used in a technical sense and the making of an imputation of the commission of an offence in evidence given in a departmental enquiry was not the making of a charge in that sense. Quite clearly we are not concerned with any of the questions discussed in these cases or the view there taken.

As, however, in all these cases the charge alleged to have been made related to an offence triable in a criminal proceeding, all the judgments incidentally referred to institution of criminal proceedings in connection with the charge. In none of them, however, was the question with which we are con~ cerned, namely, whether a false charge can be made in respect of an offence which could be tried by a proceeding which was not a criminal proceeding, raised. It was not, and could not have been, intended in these cases to say that the offence in respect of which a false charge had been brought must be one which was triable by a criminal proceeding only. Therefore, I have said that these cases do not support the proposition for which Mr. Sarjoo Prasad contends.

As a matter of construction, and that is all that we have to go by in the absence of any authority, I agree with the view of the High Court that when the section says that arr offence under it may be committed by falsely charging a person with the commission of an offence, it does not intend that the offence must be one which gives rise to a criminal proceeding. There is no warrant for a contrary view. Inrked the definition of the word offence in s. 40 of the Code shows that such a contrary view would be wrong. Under that definition the word 'offence' in s. 211 means an offence punishable under the Code or under any special or local law

(') (1881) I.L.R. 6 Cal. 620. ('l (1890) I.L.R. 17 Cal. 574. (') (1895) I.L.R. 19 Bom. 51.

as defined in it. Section 41 defines a special law as a law 1964 applicable to a particular subject. Now the Contempt of Barillas n.;.,.u ..

Courts Act is an Act dealing with the subject of contempt v. of courts and is, therefore, a special law. It also. proides

81• 1•.d ~:;:,~•ayal for punishment for contempt of court by simple 1mpnson- - ment up to six months. subject to certain conditions men- Sa.r!-ar, J. tioned: see ss. 3 and 4. A charge of having committed a contempt of court is, therefore, a charge of having committed an offence within the meaning of s. 211. Such a charge was admittedly brought in this case and that charge was furthermore preferred to the only person who could act upon it, namely. the High Court, for without its sanction no complaint for lodging a false charge of contempt of court could have been made. The order to lodge the complaint in regard to an offence under s. 211 was unobjectionable.

I. therefore. think that there is no substance in this appeal and would dismiss it.

HIDAYATULLAH, J.-The High Ccurt of Calcutta has mdayat1dla1',.I. ordered the Registrar of that Court to make a complaint in writing against the appellants for their prosecution under ss. 193, 199 and 211 of the Indian Penal Code. The High Court, however, certified the case as fit for appeal under Art. 134(1)

(c) of the Constitution and the present appeal is the result.

The appellants had obtained a temporary injunction from the High Court against respondents 2 to 4 restraining them from disturbing possession of the appellants over certain properties. The appellants made an application to the High Court alleging that the respondents in defiance of the order tresspassed on the property breaking down a gate and cutting down a tree. In that application they asked for action under the Contempt of Courts Act. The High Court remitted the case for enquiry. It was reported that the allegation was false. The High Court came to a like conclusion and ordered the Registrar to file a complaint for the prosecution of the appellants. At the hearing, preliminary objections were raised about the competency of the appeal, but were subrnquently withdrawn when we intimated that we were not disposed to interfere with the order of the High Court on merits.

This Court will not ordinarily do more than examine in such cases whether the High Court has fairly considered a case to reach the conclusion that prima facie there is good reason to launch the prosecution, that there is reasonable prospect of conviction and that it is expedient'in the interest of justice to order a prosecution. Judged from this angle, I am satisfied that the High Court correctly viewed the case. . It is, however, contended that s. 211 of the Indian Penal Code cannot apply because no offence under s. 211 can

SUPRE:.\IE COURT REPORTS [1964}

1964 prima facie be held to be committed by the appellants when Harid., DasarnlAnr they made the application which has led to their prosecuv. tion. S. 211 reads as follows: - State of ~Vest Bengal

arnl OtA." "211. False charge of offence made with intent to - injure- HidayatuUah, J.

Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with.imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and sliall also be liable to fine." It is quite clear that prima facie the intention of the appellant would be to cause injury to the respondents if their / report to the High Court was false. The only question really is whether they instituted a criminal proceeding. An application to take proceedings under the Contempt of Courts Act .. undoubtedly can be regarded as causing a criminal proceeding to be instituted. There is no substance in the contention that the application neither charged the respondents with any offence, nor instituted a criminal proceeding against them.

There may be some dispute as to whether it charged the respondents with an offence and as to that I say nothing, but, in my judgment there can be no doubt that it amounted to the insitution of a criminal proceeding because a contempt of court can be punished by imprisonm_11nt and fine and that brings an accusation charging a man with contempt of court within the wide words 'criminal proceedings'. Such proceedings were descJibed as quasi criminal proceedings by the Privy Council because such proceedings are not tried under the Criminal Procedure Code. That does not render it any the less a criminal proceeding because the Criminal Procedure Code is not exhaustive of criminal proceedings and punishments of contempts by summary procedure before the superior courts are special criminal proceedings which the Criminal Procedure Code does not even seek to regulate. If there was no just or lawful ground for commencing this proceeding for contempt in the High Court (and it is held by the High Court that there was none) then the requirements of

s. 211 of the Indian Penal Code must be taken to be prima 1964 facie satisfied. In my opinion, the High Court acted withHariclaallaaandA.,. jurisdiction to order a prosecution under s. 211 of the Indian v.

Penal Code in the present case. Of course, the appellants State~ h! will be entitled to raise any plea of law or fact in the case and • • I will only say that what has been said by the High Court Hidayatullah, J. or by this Court in relation to the facts, should not stand in their way of substantiating any plea or pleas. I agree for these reasons that the appeal be dismissed.

MUDHOLKAR, J.-The question raised before us in this appeal by a certificate granted by the Calcutta High Court is whether that Court was right in directing a complaint Mu'11wlkar, Ji to be filed against the appellants for offences under ss. 199 and 211 of the Indian Penal Code.

The matter arose like this. The respondents 2, 3 and 4 purchased at a sale held for the realization of rent, plot No. 365 of village Jagdispur, district 24 Parganas on or about April 7, 1951 and obtained delivery of possession through court. But apparently they were able to get only paper possession. On September 25, 1951 the appellant No. I Haridas Das instituted a suit in the court of Munsif at Sealdah for a declaration that his. right, title and interest had not been effected by the sale, for confirmation of his possession over the land and for a permanent injunction restraining the respondents 2 to 4 from disturbing his possession. He also made an application for a temporary injunction restraining the respondents from disturbing his possession. The application was, however, dismissed by the Munsif ancl his order wa.s affirmed in appeal by the Third Additional District Judge at Alipore. The appellant thereupon preferred an. application for revision before the High Court from the order of the Additional District Judge. By order dated May 3, 1954 B. K.

Gulla, J., granted temporary injunction to the appellant No.

I restraining the respondents 2 to 4 from disturbing his possession till the disposal of the suit and observed in his order that no serious inconvenience would be caused to them if they were asked in substance to possess the property jointly with the appellant No. I.

On or about June 12, 1956 the appellant No. I filed an .,. application in the High Court under the Contempt of Courts Act; 1926 alleging, inter alia, that on June 7, 1956 respondents 2 to 4, along with others, attempted to enter forcibly into the plot with respect to which an injunction had been granted by the High Court. In the course of that ; ittempt they broke open the gate and cut down a tree standing on the plot.

He further averred that the police then arrived on the scene and restored peace. According to him the respondents 2 to 4 had by this action mmmittP.d a breach of the injunction

1964 granted by the High Court. This application was verified by Barida.DasanclAnr.an affidavit affirmed py the second appellant Jyotish Kumar v.

Seal who said that the facts set out in all the paragraphs lilal•

0~:;-:i:fe::ga1 of the application were true to his knowledge.

After the application was made the Court issued a rule calling upoa MudTwlkar, J. the respondents 2 to 4 to show cause why they should not be committed and punished for contempt of court for violating the order of injunction. The parties were heard on July 25, 1956 and the Bench which heard it directed the Subordinate Judge, Alipore to make an enquiry and submit a repo(t. In accordance with this direction the Subordinate Judge examined the witnesses named by the appellants and in addition examined as court witness the Officer-in-charge of the Police Station, Rajarhat, to whom a report of tlle incident had also been made by the .appellants. The Subordinate Judge then submitted his report to the High Court. After its receipt the High Court heard the parties, considered the report on August 30, 1957 and made an order discharging the rule. In the course of the order the High Court observed • as follows: -

" .................. in the opinion of the learned Subordinate Judge, the allegations made by the petitioner are not true. We have ourselves gone through the evidence and agree with the view obviously taken by the learned Subordinate Judge. It may be, as stated by Jyotish Kumar Seal, that some persons of the opposite parties did go to the garden and enquire -who authorised him to construct the hut, which he was doing, but the story that the members of the opposite parties broke open the gate, and cut down the tree, cannot reasonably be believed.· Inspite of what the witnesses have spoken, it is worth remembering, as pointed by the learned Subordinate Judge that in the report to the Officer-in-charge, Rajarhat, nothing was said about any golmal or any looting or any damage done to the garden or to the trees."

On September 17, 1957 the respondents 2 to 4 filed an application under s. 466 read with s. 195 of the Code of Criminal Procedure before the High Court for making a complaint against appellants under s. 211. I.P.C. and/or any other appropriate section in relation to the proceeding in the contempt matter before the High Court. The High Court issued a rule to the appellants, heard them in answer to the application and come to the conclusion that. it )'Vas expedient in the interests of justice that a complaint should be made. The High Court, therefore, made the rule absolute and directed the Registrar, Appellate Side to file a complaint against the appellants under ss. 211 and 199 l.P.C. 1961 and/or ariy other appropriate section to the Chief Presidency Haridallla<-;;.i..! , Magistrate, Calcutta. In pursuance of this direction the Rev. • • gistrar lodged a complaint on January 16, 1959 under ss. 193, State 01 Weal Be•1al

199 and 211, I.P.C. in the court of the Chief Presidency •n<I °'~'

Magtrate, Calcutta. The appellants made an application Mudlwlkar, J. before :tie High Court under Arts. 133(1)(c) and 134(1)(c) of the Constitution for grant of a certificate of fitness for appeal to this Court. By Order dated May 8, 19N the High Court granted the certificate, overruling the objections made on behalf of the respondents. The ground on which the High Court granted the certificate was that the decision in The 'Empress v. Jamoona(') where it was held that for a conviction under s. 211 of the Penal Code it was necessary that the false charge should have been made to a Court or an officer having jurisdiction to investigate and send it up for trial, was not noticed by the High Court. With regard to the objection raised on behalf of the respondents that the order of the High Court directing that a complaint be lodged was not a final order, the High Court held that whether it is a final order or not is not free from doubt and that the benefit of that doubt ought to be given to the appellants.

Before us Mr. Sarjoo Prasad has. placed reliance upon the decision referred to in the order of the High Court granting certificate and also on the decision of Ranade, J., in Queen Empress v. Karigowda('). In the first of these cases one Jamoona appeared before Captain Simpson, Adjutant, 11th M.N.I., and Station Stall Officer and charged a noncommissioned officer with rape. An enquiry was held by Captain Simpson and the charge was found to be false. The Commanding Officer caused the appellant to be prosecuted in a criminal court under s. 211 l.P.C. She was committed for trial and was convicted by the Judicial Commissioner with respect to that offence. On appeal the High Court held that the Station Stall Officer having neither magisterial nor police powers, s. 211 was not attracted. In the course of his judgment Mitter, J., observed:

"We do not think it unduly refining the words to say that the false charge must be made to a Court or to an officer who has. powers to investigate and send up for trial."

Section 211, I.P.C. reads thus:

"Whoeyer •. with intent to cause jury to any person, mstitutes or causes to be mstituted any criminal proceeding against that person, or falsely

(') (1881) IL.R. 6 Cal. 620. (') (1895) l.L.R. 19 Bom. 5L

Harifaa [)(Uand.A.nr.

charges any person with having committed an office, knowing that there fa no just or Ia wfal gr'!und for such proceeding or charge against v.

State of W.., Bengal

and Others

Mudholkar, J.

that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

Breaking up the section, it is clear that before it can be invoked three things have to be proved: (a) that the accused had intended to cause injury to any person; (b) that with that object he instituted or caused to be instituted a criminal proceeding against that person or in the alternative falsely charged him with having committed an offence and (c) that he did so with the knowedge that there may be no just or lawful ground for such proceeding or charge against that person. Does the section mean that a false charge made before any person is punishable thereunder or is it restricted to such charge being made to a person holding a particular position? It seems to me that since making of l!- false charge before any person, whosoever he may be, is covered by s. 499.

I.P.C., it would be appropriate to construe this section as being applicabe only to a case where a false charge is made by the accused person against another before a person who is competent to enquire into it and , either take proceedings himself or cause proceedings to be initiated. I do not, however, think that it is limited to false charges made to a person who also has the power to try the accused or commit him for trial by another court Such an interpretation is sufficient to prevent any overlapping of the provisions of this section with those of s. 500 and it is not necessary to go further than this.

In the other case the facts were these:

One Karigowda was tried for an offence under s. 211.

Indian Penal Code for having falsely deposed in an enquiry into bribery by a District Magistrate that he had paid bribe of Rs. 300 to a Magistrate in the District of Bijapur, named Jehangir. After the conclusion of the enquiry Jehangir obtained permission from the Government to pro8ecute Karigowda for an offence under s. 500, I.P.C. A complaint was also made against him of an offence under s. 211, l.P.C.

The trying magistrate, at the end of the trial, struck out the

...

charge under s. 500 and convicted him of an offence under 1964 s. 211 only. On appeal the Joint Sessions Judge reversed Haridaalla8antlAnr.

the conviction under s. 211. The Government then preferred v. f H. h C Th H' h C t d State of Wut R,.gaJ an appeal be ore the 1g ourt. e 1g our !everse and OthD• the acquittal of Karigowda under s. 500 and maintamed the - conviction under s. 211, I.P.C. Jardine, J., one of the two Mudlw/1-, J.

Judges who heard the case, referring to Jamoona's case(') said that that case was inapplicable and then observed:

"The present case, however, seems to me to be taken out of section 211 by the fact that Karigowda did not apparently intend to set the criminal law in motion. He had been produced before Mr.

Monteath against his will; and though what he said is 'information' under section 191, clause

c. of the Procedure Code, and 'defamation' under the Penal Code, I am of opinion, after considering the Full Bench case(') that the imputations do not make up a 'false charge'." (p. 61-62).

Ranade J., however, has made certain observations upon which Mr. Sarjoo Prasad has placed strong reliance. Those observations are :

"The words 'falsely charging' used in that section must be construed along with the words which speak of the 'institution of proceedings'. These latter words are obviously used in a technical and exclusive sense, and by parity of reasoning. the same restricted sense must be given to the words which relate to a false charge." (p. 69).

He also agreed with Jardine, J., that Karigowda had not made a complaint of his own accord and what he said was simply in answer to certain question put to him at the departmental enquiry. In my judgment it would not be right to read .the words "or falsely charges" as being in any

way restricted by the words "institutes or causes to be instituted any criminal proceeding". The legislature has clearly provided for two kinds of acts: one the institution of prcr ceedings and the other of making a false charge and I see. no q>mpelling reason for reading the section as if it is limited t? the instition of a complaint upon a false charge. Such an mterpretation would completely shut out criminal prcr ceedings in which no charge of an offence has been made. !• therfore, agree with the view taken by the Full Bench m Kanm Bux's case('), to which Jardine, J., had referred.

(') (1881) I.L.R. 6 Cal. 620. (') I.L.R. 17 Cal. 574.

~ With regard to the interpretation to be placed upon the BaridiiaDa•""4Anr. two phrases used .in s. 211 Wilson, J., who delivered judg-

B ,, w•· ment of the court m that case observed, inter alia tat-e oJ eat Bengal and Ot,,.r "I agree that we must take it that the legislature did Mudholkar, J. not regard the two phrases (that is, 'institutes criminal proceedings' and 'falsely charges') as coextensive in meaning but considered that there were or might be cases to which one would apply and not the other." (p. 578).

As illustrations of proceedings in which no charge of an offence is made Wilson, J., has referred to proceedings under s. 107 and s. 109 of the Code of Criminal Procedure.

As an illustration of a false charge which does not amount to institution of a criminal proceeding, he has 1 eferred to a charge made to a judge of civil court in order to obtain sanction to prosecute another (which was a prerequisite for prosecution before the amendment by Act 18 of 1923) and pointed out that this would not be. the institution of a criminal proceeding. In my opinion, therefore, the point raised by Mr. Sarjoo Prasad must fail.

Apart from the offence under s. 211, the complaint against the appellants embraces two more offences: one is for giving false evidence which is punishable under s. 193 and the other of making a false statement in a declaration which is by law receivable as evidence under s. 199, I.P.C.

There could be no impediment to a complaint being made with regard to these two offences. Mr. Sarjoo Prasad, however, says that the High Court, after it received the report of the Subordinate Judge, did not find that it was wholly false but found that it was partly false and in this connection draws our attention to the following observations of the High Court:

"It may be, as stated by Jyotish Ktimar Seal, that some persons of the opposite parties did go to the garden and enquire who authorised him to construct the hut, which he was doing, but the story that the members of the opposite parties broke open the gate, and cut down the tree, cannot reasonably be believed." It is true that the High Court has not said that the respondents 2 to 4 di_d not visit the po_t at all; but the injunction did not restrain them from VISltmg the plot. What they were restrained from doing was to disturb the possess!on of the appellant No. 1 and, therfore, there was no question .of their rendering themselves hable for contempt, because they visited the plot. Indeed that was not t!te p-avamen of the charge against him in the contempt apphcat10n made by

the appellant No. I. The gravamen of the charge was that ~~ they in fact disturbed his possession and caused damage tOHaridasDas...aA,.,. property. This was the crucial allegation nd this allegation State of W.;,.1 Bengal

has not been found to be true by the Htgh Court. In the and Other. circumstances there was clearly a prima facie case for proceeding against the appellants not only under s. 211 but also Mwlhollcar, J. under ss. 193 and 199, l.P.C.

Mr. Sarjoo Prasad, however, said that he would be able to show by reference to the evidence recorded by the Subordinate Judge during the enquiry made by him that the statement of the Station Officer upon which the High Court has placed reliance is not correct and that his statement to the effect that in the report made to him nothing was said about "any golmal or any looting or any damage done to the garden or to the trees." It is sufficient to say that we are not sitting in judgment over the order of the High Court by which the rule for committing the respondents 2 to 4 for contempt was discharged. The appeal before us is against another order and that is the order directing a complaint to be filed against the appellants.

Mr. Sarjoo Prasad then contended that the false charge referred to in s. 211 must be with respect to an offence under the Indian Penal Code and that by making an application of the kind which the appellant No. 1 made he had not charged the respondents 2 to 4 with any offence under the Penal Code. The word 'offence' is described in s. 40 of the Indian Penal Code. The relevant part of the definition runs thus:

"Except in the chapters and sections mentioned in clauses 2 and 3 of this section. the word 'offence' denotes a thing made punishable by this Code.

In chapter IV. chapter VA and in the following sections, namely, sections 64, 65 ........ ., 211, 213, . . . . . . . . . the word 'offence' denotes a thing punishable under this Code, or under any special or local law as hereinafter defined ...... .

" It will thus be clear that the word offence used in s. 211 woul? also include a thing punishable under a special law.

Special la:v is defined in s. 41 as a law applicable to a particular subiect. The law of contempt is a particular subject an:l the High Court has inherent power to punish a person for .th_e offnce_ of conten:ipt co.mmittd by him by disobeying a.n m1unct1on issued gamst h1~. Disobedience of an injunction is.sued b!' the High Court 1s not something with respect to which action under s. 24 or s. 95 of the Code of Civil Procedure could alone be taken but being contempt of the

1964 . - Htgh Court's order, is punishable by it in its discretion in Hor;, Z...DasondAnr.exercise of its inherent powers. The only limitation which

State of ;., t Bengal the statute has placed is with regard to the punishment that

and Ot.v,., the High Court can meet out to the contemner. I am, therefore, satisfied that the Order of the Hi.h Court was right and, Murlholkar, J. - accordingly, I dismiss the appeal.

Upon the view which I have taken, it is not necessary to consider whether the proceeding before the High Court was a criminal proceeding. In support of the contention that it is not a criminal proceeding, Mr. Sarjoo Prarnd has placed reliance upon the decision of the Privy Council in S. N.

Ba•inerjee v. Kuchwar Lime and Stone Co., Ltd.('). In that case, their Lordships held that a committal for contempt for breach of an injunction was not criminal in its nature, and referred to the decisions in Radha Krishna Das v. Rai Krishn Chand(') and Scott v.

Scott('). Since we did not hear full arguments upon this question, I do not feel called upon to express any opinion on the point.

Before parting with the appeal, I would like to point out that two preliminary objections were raised before usone by Mr. Niharendu Dutt Majumdar on behalf of respondent No. I and the other by Mr. S. C. Majumdar on behalf of respondents 2 to 4. Mr. Dutt Ma.iumdar's preliminary objection was that the order of the High Court was not a final order and he addressed a long 1rgument in support of it. The objection of Mr. S. C. Majumdar was that the appellants had failed to prefer their appeal within the time allowed by the rules of the Court and that they had made false allegations in support of their application for condoning the delay and, therefore, the condonation be revoked. We have heard both at considerable length on these points. At the conclusion of Mr. Sarjoo Prasad's arguments we made it clear to the respondents that we did not want to call upon them to reply on merits and enquired whether in the circumstances they pressed their preliminary objections.

Both of them said that in the circumstance.s they did not want to press those objections. No order on these two preliminary objections is, therefore, necessary.

Appeal dismissed.

(') I.L.R. 17 Pat. 770.

(') 28 I.A. 182. (') (1913) A.C. 417 at 456.

237

HARIDAS DAS AND ANR

STA TE OF WEST BENGAL AND ORS

A. K. SARKAR

M. HIDAYATULLAH

R. MUDHOLKAR,

JJ.

Penal Code

Contempt of Court Act

ss. 40, 41 and 211

ss. 193, 199 and 211

Indian Penal Code, 1860

Art. 134(1)

s. 211

Penal Code

s. 211

Penal Code

s. 211

Penal Code

s. 40

Penal Code

s. 41

Contempt of Court Act

s. 211

s. 211

Penal Code

Hidayatullah

s. 211

Penal Code

Code of Criminal Procedure

s. 211

Mudholkar

s. 499

untl Others Code

Section 211

Indian Penal Code

s. 211

Contempt of Court Act

s. 211

Sarjoo Prasad

P. K. Chatterjee

Niharendu Dutt Majumdar

P. K. Chakravarty

P. K.

Bose

S. C. Majumdar

I.

S. C. Majumdar, for respondents Nos.

SARKAR

High Court at Calcutta

ss. 211, 199

Indian Penal Code

ss. 193, 199 and 211

Art. 134(l)(c)

ss. 193 and 199

s. 211

s. 211

SUPREME COURT REPOR'.L'S [19641

1964

Haricltu Daaand

s. 211

s. 211

s. 40

s. 211

Section 41

Courts Act is an Act

ss. 3 and 4

s. 211

s. 211

HIDAYATULLAH

High Ccurt of Calcutta

ss. 193, 199 and 211

Indian Penal Code

Art. 134(1)

Contempt of Courts Act

s. 211

Indian Penal Code

s. 211

Harid

S. 211

HidayatuUah

Contempt of Courts Act

s. 211

Indian Penal Code

s. 211

Penal Code

MUDHOLKAR

Calcutta High Court

ss. 199 and 211

Indian Penal Code

Jagdispur

Parganas

April 7, 1951

September 25, 1951

Haridas Das

Sealdah

May 3, 1954

B. K.

Gulla

June 12, 1956

Contempt of Courts Act

June 7, 1956

Jyotish Kumar

upoa MudTwlkar

July 25, 1956

Subordinate Judge, Alipore

Police Station, Rajarhat

30, 1957

Jyotish Kumar Seal

Rajarhat

September 17, 1957

s. 466

s. 195

Code of Criminal Procedure

s. 211

I.P.C

ss. 211 and 199

ss. 193

I.P.C

Mudlwlkar

Arts. 133(1)(c) and 134(1)(c)

May 8, 19N

s. 211

Penal Code

Sarjoo Prasad

Ranade

Jamoona

Simpson

s. 211

s. 211

Mitter

Section 211

I.P.C

Harifaa

State of W.., Bengal

s. 499

I.P.C

s. 500

Karigowda

s. 211

Indian Penal Code

Bijapur

Jehangir

s. 500

I.P.C

s. 211

s. 500

s. 211

s. 211

State of Wut R,.gaJ

s. 500

s. 211

I.P.C

section 211

Monteath

section 191

Penal Code

Jardine

Kanm Bux

s. 211

Wilson

s. 107

s. 109

Code of Criminal Procedure

s. 211

s. 193

s. 199

I.P.C

Jyotish Ktimar Seal

s. 211

Mwlhollcar

ss. 193 and 199

s. 211

Indian Penal Code

Penal Code

s. 40

Indian Penal Code

sections 64, 65

s. 211

s. 41

s. 24

s. 95

State of ;., t Bengal

Murlholkar

Sarjoo Prarnd

Niharendu Dutt Majumdar

S. C. Majumdar

Dutt Ma.iumdar


• '7 S.C.R.

SUPREME COURT REPORTS 251

BONDADA GAJAPATHY RAO

STATE OF ANDHRA PRADESH

[A. K. SARKAR, M. HIDAYATULLAH AND J. R. MUDHOLKAR, JJ.]

Criminal Trial-Appellant sentenced to imprisonment for life-Death during the pendencu of appeal-Heirs whether can prosecute appeal-Code of Criminal Procedure, 1898, (Act 5 of 1898), s. 431, 435, 439-Constitution of India, Art. 136.

The appellant was convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life by the High Court for the offence of the murder of his wife. He was granted special leave to appeal by this Court. During the pendency of the hearing of this appeal the appellant died. After his death his sons and daughter applied to this Court for permission to continue to prosecute the appeal.

It was pleaded by the legal representatives of the appellant that though that sentence of imprisonment could no longer be executed, it still affected the property of the deceased and the legal representatives were, therefore, interested in the appeal and should be permitted to continue it. The appellant, who held a high office in the Government of Andhra Pradesh had been Sl/spended during the investigation of the charge against him arid he was dismissed from serv1ce under certain service rules on his conviction. During this time the appellant had only been given a smti.11 allowance. On these facts it was pleaded that if the conviction was set aside, the estate of the deceased would be entitled to receive the full salary from the Government.

Held (Per Sarkar, J.): (i) Neither s. 431 nor the cases mentioned can be said to apply to the present case proprio vigore, for the present is not an appeal under the code of criminal procedure which is dealt with by s. 431 nor is it a revisional application like the one which came up for consideration in Pranab Kumar Mitra's case, while as for the English case, it is only of persuasive value.

Pranab Kumar Mitra v. The State of West Bengal, [1959] S:uP.P 1 S.C.R. 63 and Hodgson v. Lakeman, [1943] L.R. K.B. 15, d1stmguished.

(ii) The principle on which the hearing of a proceeding may be continued after the death of an accused would appear to be the effect of the sentence on his property in the hands of his legal representat!ves. If ! '.:e sentence affects that property, the legal representatives can be said to be interested in the proceeding and_ ~!lowed t<;> cont_ii:ue it. This principle applies in appeals, revlS!ons, and m petitions under Art. 136 of the Constitution.

A sentence of fine no doubt affects the property. In the present case, however, the sentence was not of fine but of imprisonment which on the death of the accused has become in- !ruct?ous. In te present. case the effect of the sentence imposed m this case. bemg set aside would not directly entitle the legal representatives to the salary. They will have to obtain necessary orders from the Government for the purpose.

March 16

Botodada Gajapathy

Rao v.

Stale of Amihra

Prade•h

Held (Per Hidayatullah, J.): (i) This was an appeal against a sentence of imprisonment and an appeal of this character would normally abate on the death of the appellant because a criminal prosecution is concerned primarily with the punishment of rn offender and not with the trial of an abstract issue about the truth or falsity of a prosecution case. The same principle must apply to appeals after conviction, except in so far as .a judgment already rerdered touches assets which would come to the legal representative. In so far as personal punishment (other than a fine) is concerned that stands dissolved by the death of the offender and an appeal to get that punishment set aside becomes infructuous and abates.

Pranab Kumar Mitra v. The State of West Bengal, [1959) Supp. 1 S.C.R. 63, Pritam Singh v. State, [1950] S.C.R. 453, distinguished.

Hodgson v. Lakeman, [1943] L.R.K.B. 15, Baghis v. Rowes [1955] 1 Q.B.D. 573, referred to.

(ii) The prlinciple laid down in Pranab Kumar Mitra v. The State of West Bengal and Another and in Pritam Singh v. The State has no application to the present matter because there is no analogy between an appeal by special leave and a revision under the. code. The present case is not a case where the legal representatives after the death of the offender have to meet the liability of a fine or are required to protect the assets which they claim should reach them. In the present case no claim of the petitioners is jeopardized directly, by the judgment. Their claim is dependent upon the administrative action of Government which may not proceed upon the result of criminal prosecution. This appeal was only concerned with the correctness or otherwise of the conviction and not with any monetary claims depending upon the result of the appeal. In such a situat:on the ordinary rule that a criminal proceeding against a person comes to an end on his demise must apply also to special appeals in this court, such as this, even though the provisions of the Criminal Procedure Code may not be directly applicable.

Held (Per MudhqJkar, J.): (i) The decision of this court in Pranab Kumar Mitra v. The State of West Bengal has no bearing upon an appeal brought to this court by special leave. It is no doubt true that the power 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 is discretionary, Under section 439 of the Code the High Court can exercise any of the powers conferred on a court of appeal by sections 423, 426, 427 and 428 or on a court by s. 338 and has also the power to enhance the sentence. Under Section 435 of the Code, the High Court can suo motu call for the record of any inferior court but this power cannot be exercised by this court under article 136 of the Constitution. Therefore there is a fundamental difference between the power of the High Court in revision and the power of this Court in Art. 136 of the Constitution.

Pranab Kumar Mitra v. The State of West Bengal, [1959] Supp. 1 S.C.R. 63, distinguished.

(ii) In a criminal matter the issue is personal between the accused person and the State rnd the right of appeal is also personal to the appellant. There is admittedly no express provision permitting the substitution of legal representatives of a deceased appellant in a criminal appeal brought to this Court by

special leave. The policy of the law discernible from s. 431 of the 1964 Code has to he borne in mind. The policy under section 431 of B --: ,~, the Code is that evecy criminal appeal under chapter XXXI will °"'4daR°:j•,..-• abate except an appeal from a sentence of fine. There is no proviv. sion which prescribes the continuation of the appeal on the Stal• of All<IAN death of the appellant in cases where the sentence is of impri- Praduh sonment.

The interest of the legal representatives in the present case is not a direct interest in the sense that it cannot arise out of the decision of this court even if it is in favour of the appellant. The only interest which the applicants have is a contiruient <me and is not one which could flow directly out of the ultimate decision of this Court.

Hodgson 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. Hlingworth, Jones v. Gallowfield, Rivers v. Glasse, (a!J 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 F2d 706, The State of Kerala v. Narayani Amma Kamala Devi, (1962] Supp. 3 S.C.R. 943 and lmperatrix v. Dongali Andaji, (1879) I.L.R. Born. 064, referred to and discussed.

(iii) The Legislature has by limiting in section 431 of the Code the survival of appeals to appeals against sentences of fine has chosen to recognise only one kind of interest and no other.

This Court in exercise of its inherent powers or discretionary powers would not be acting according to correct legal principles in recognising a kind of interest which the legislature has not chosen to recognise. In the circumstances the applicants ought not to he granted special leave to prosecute the appeal.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 179 of 1961. Appeal by special leave from the judgment and order dated October 31, 1960, of the Andhra Pradesh High Court in Criminal Appeal No. 161 of 1960.

K. R. Chaudhuri, for the appellant.

A. S. R. Chari, B. R. G. K. Achar, and R. N. Sachthey, for the respondent.

March 16, 1964. The following judgments were delivered-

SARKAR, J.-This is an appeal from a sentence of impri- Sarw, J. sonment for life imposed on the appellant upon his conviction for tile offence of the murder of his wife. The appeal was filed with the special leave of this Court granted under Art. 136 of the ConstitutiO'n but the appellant died pending the appeal.

His legal representatives now seek leave to continue the appeal.

There would seem to be authority for the proposition that revision petitions and some appeals from sentences of fine might be continued by his legal representatives on the death

SUPHEME COUHT REPOHTS [1964]

111a1 of the accused pending the proceeding: see s. 431 of the Code

lB _,_d aa th of Criminal Procedure and Pranab Kumar Mitra v. The State Orw.u a 'J<tpa. Y . · J f Rao of West Bengal('). It appears that m England appea s rom v. similar sentences are permitted to be continued by the execu- .Stat•pt0; J:';!.hra tors of the deceased appellant: see Hodgson v. Lakeman('). It is true that neither s. 431 nor the cases mentioned can be said .Yarkar, J. to apply to the present case proprio vigore, foe the present is not an appeal under the Code which is dealt with bys. 431 nor is it a revisional application like the one which came up for consideration in Pranab Kumar Mitra's case, while as for the English case, it is only of persuasive value. All the same however I think it must now be held that appeals from sentences of fine may be permitted to be continued by the legal representatives of the deceased appellant. First, I find no provision making such appeals abate. If they can be continued when arising under the Code, there is no reason why they should not be continued when arising under the Constitution. If revision petitions may be allowed to be continued after the death of the accused so should appeals, for between them no distinction in principle is possible for the purpose of continuance. It is true that the Code of Criminal Procedure which creates the revisional powers of a Court provides that such powers ma.y be exercised suo motu but it does not seem to me that Pranab Kumar Mitra's case(') was based on this for on that ground all revision cases should have been permitted to be continued and the permission should not have been confined to cases of fine. Indeed in that case this Court proceeded on the basis that there was no statutory provision applying to the case. It observed, "even in the absence of any statutory provisions, we have held, ............ that the High Court has the power to determine the case even after the death of the convicted person, if there was a sentence of fine also imposed on him, because that sentence affects the property of the deceased in the hands of his le1; al representative".· A sentence of fine affects property equally when the case is taken further up in appeal or in revision. If it is just and proper to continue the hearing in one case after the death of the accused, it would be equally so in the other case.

The principle on which the hearing of a proceeding may be continued after the death of an accused would appear to be the effect of the sentence on his property in the hands of his legal representatives. If the sentence affects that property, the legal representatives can be said to be interested in the proceeding and allowed to continue it.

A sentence of fine no doubt affects the property. In the present case, however, the sentence was not of fine but of imprisonment which on the death of the accused has become

(') [1959] 1 S.C.R. 6:t.

(') [1943] L.R.K.B. 15.

infructuous. There is no one now who can be imprisoned. It is, 1964 however, said that though that sentence can no longer be exe- Bowlada Gajopalh~ cuted. it still affects the property of the deceased and the legal Rao representatives re, therefor~. interested in the. appe~ an~ State 0JA.ndhra should be permitted to continue 1t. The matter 1s put m this Pradesh way. The appellant, who held a high office in the Government of Andhra Pradesh had been suspended during the investiga- Sa, kar, J tion of the charge against him and he was dismissed from service under certain service rules on his conviction. During this time the appellant had only been_given a small allowance.

It was said that if the conviction wasset aside, the estate would be entitled to receive the full salary from the Government.

It seems to me that this contention is not accurate. It may be that if the sentence is set aside that may assist the legal representatives in their effort to obtain the full salary to which the deceased's estate would have been entitled. But the effect of the sentence imposed in this case being set aside would not directly entitle the legal representatives to the salary. They will have to obtain necessary orders from the Government for the purpose. It has not been shown to us that such order will .automatically follow the setting aside of the conviction.

Neither has it been shown that the legal representatives cannot move the Government to pass such orders on the ground that the Correctness cl the conviction could not be tested because cf the death of the appellant. For these reasons I am unable to hold th<t the justice of the case requires that the legal representatives of the deceased should be permitted to continue the appeal. It wo:ild be extending the principle applied to the case of a sentence of fine, if on the basis of it this appeal was aliowed to be continued by the legal representatives after the death of the appellant and for such an extension I find no warrant. , ·

In my view, for these reasons the legal representatives are not entitled to continue the appeal. That being so and as the sentence was one of imprisonment which would not affect any: one after the death of the accused, it cannot be said that there is anyone interested in the appeal. There is nc question, therefore, in such a case for proceeding further with the appeal. /

HloAYATULLAH, J.-The appellant was convicted urider Hida.vatullah, J, s. 302 of the Indian Penal Code and sentenced to imprisonment for life by the High Court of Andhra Pradesh.

He was granted special leave to appeal by this Court. During the .pendency of this appeal the appellant died on August 30,

1963. After his death his sons and daughters applied to this Court on October 5, 1963 for permission to continue to prosecute the appeal. Their petition is all that we are concerned wit!\ at the present moment.

The appellant was working as Superintending Engineer (Electricity) in the service of the Government of Andhra Pradesh. The case against him was that on August IO, 1959 he

SUPREME COUHT REPORTS [1964]

!964 committed the murder of his wife by shooting her in the back Bo.dada Gajapathy with a revolver. He was acquitted by the Sessions Judge of Rao Krishna Division, Masulipatnam but, on appeal by the State v.

Government the order of acquittal was set aside and he was State of Andh.ra I • Pradesh convicted and sentenced as above. In view of the appe !ants death we are of course not interested any further in consider-· HirlayatuUah, .T. ing the details of the offence, if any, unless we allow the heirs of the appellant to prosecute the appeal after his death and this is precisely what the present petitioners claim they are entitled to do. It is admitted, however, that no analogous contention was ever raised in this Court, though appeal on the death of a sole appellant were, before this, treated as abaled.

One would expect that an appeal of this character would normally abate on the death of the appellant because a criminal prosecution is concerned primarily with the punishment of an offender and not with the trial of an abstract issue about the truth or falsity cf a prosecution case. The maxim actio persona/is moritur cum persona is often invoked in this behalf. The Criminal Procedure Code in s. 431 also provides that all appeals filed under s. 411-A sub-s. 2 or s. 417 shall finally abate on the death of the accused and every other appeal under Chapter XXXI shall finally abate on the death of the appeflant, except an appeal against a sentence of fine. The section cannot cover a. case such as the present because this appeal was not filed under any of the sections mentioned in s. 431 or under Chapter XXXI.

It is contended that without the aid of a provision like s. 431, Criminal Procedure Code, the appeal must be treated as continuing and it is pointed out that for this reason and for the additional reason that the powers of revision can be exercised suo motu this Court allowed legal representatives to continue to prosecute criminal revisions under s. 439 of the Code in Pranab Kumar Mitra v .. The State of West Bengal and Another(') and Pritam Singh v. The State('). It is urged that on ·~· a parity of reasoning this appeal can be continued by the heirs.

It is not my purpose to consider, whether in the absence of any direct injury to the living every criminal proceeding must come to an end after the death of the accused whether before his conviction or after. But there must always be some discernible reason for permitting another person to continue an appeal whether civil or criminal after the death of the appellant. An appeal is not a heritable asset and does not revolve as a matter of course upon an executor or heir. Even under the civil law an express provision is required for substitution of another person in the place of the person deceased before the. appeal can be continued and this is again subject to whether the cause of action survives or not. The same principle is again to the

(') [1959] (I) S.C.R. 63.

(')° [1950] S.C.R. 453.

~-.--7 I'.,,.,--,,-._-..

' .. "· -

, .. .. \

-----·------ --

7 S.C.R.

SUPRE~IE COURT REPORTS 257

forefront in s. 431 when it allows an appeal in respect of fine !!_64 to be continued but not appeals involving imprisonment. The Bondada a ajapatky intention there too appears to be to afford only those persons Rao a right whose interests are directly. jeopardized by the judg- State ofAnd/mJ ment. In so far as personal punishment (other than a fine) is Praduh concerned that stands dissolved by the death of the offender and an appeal to get that punishment set aside ecomes . b HidayalullaA, J. infructuous and abates. ·

. .

The only question in"this case. is .whether the principle laid down in the two cases of this Court cited above should govern special appeals or the principle underlying s. 431. It may be said at once that the former is not a direct precedent applicable to the present matter because there is no analogy between an appeal by special leave and a revision under the . Code. The latter can be suo motu but not the former. The petitioners claim that the father, if he were acquitted, would have .been entitled to claim his pay for the period upto his death since on his conviction he was removed from service by the Government and the amount thu5 involved is Rs. 40,000 /-.

The petitioners' say tha.t if the( appeal were now allowed. they would be able to ask for this amount and in this way claim an interest in the appeal. This is nota case where the legal representatives after the death of the offender have to meet the liability of a fine or are required to protect the assets which they claim should reach them. This is a case where the petitioners claim to have the judgment of the' High Court reexamined so that they may be able to prefer a claim to the salary to which their father would have been entitled if he had been a.cquitted of the criminal charge .. In my judgment, no claim of the petitioners is jeopardized directly by the judgment.

Their claim is dependent upon the administrative action of Government which may not proceed upon the_ result of the criminal prosecution. In other words, the claim' on the strength of which the present petitioners seek to join in this appeal is too remote and not directly consequential. upon the issue to be tried. The appeal was only. concerned With the correctness or otherwise of the conviction and not with any monetary claims depending upon the result of the appeal: In such a . situation the ordinary rule that a criminal proceeding against a person comes to an end on his demise must apply also to . special appe:ils in this Court, such as this,· even though the provisions of the Criminal Procedure Code may not be directly applicable. · ·

At the hearing counsel cited . cases. from . the English Courts and the Supreme Court of the United States. The English cases referred to are collected in Short & Mellor's Practice of the Crown Office and Griffith's Guide to Crown Practice and the cases of the United States are referred to in Annotations

L/P(D)!SCI-9 ..

'..,.- '.-..~,, '_...<· ~"': '. \- ' \,' i \

, ' ~· ' '-. -·-- 1 -/,

' -

I \ .

'..:·~196' in 87 Lawyer's Edition 1234 and 1 Lawyer's Editin II Series ..;.JJo;.,;;.aaaajaPdhy 1879. The English-practice-appears to be that there must be a. ·

• .. R"" direct monetary 1iabilit~ attaching to the living by reascns of siai; ~/A;,, ihra the impugned judgment before they can be allowed to continue Prade•h an appeal filed by a dead person. See Hodgson v. Lakeman(') .:-- -- and Regina v. Rowe('). The American practice also appears to Hid=",,.llak J. b h · . · '7 ' et esame. .· .

There is good reason for holding. that a criminal prosecu- . tion in which the State is anxious to bring an offender to book _with-a view to getting him punished for.a_crime comes to an -end-on the death of the person arraigned;· The same principle

must apply also to appeals after conviction, except .in so far as a judgment already rendered touches assets which would come to the -legal representatives or the executor as the case may be.· Beyond this it is not. possible to conceive of remoter interests because if the law were to take into account such ; remote interests every appeal would have to be continued after c the death of the appellant. In my judgment, the present peti-_

- tioners do not claim any direct interest and the appeal must, _ theref()re, be taken to have abated.- I agree that the petition be '-dismissed. and the appeal hdd to.have abated. .. . . .'. -

Mwlholkar, J. :- . "MuDHOLKAR,.J;.::_This° appeal raises an friteresting and

- important qtiestiOn~ It is whether _the heirs at law of a deceased petson who had .brought an appeal to this Court. by special

- leave in which he. had challenged his conviction and sentence

~-for an offence, aie entitled to prosecute the appeal after his ; death during' the pendericy of the appeaL The applicants are the children of the decea5ed who was a Superintending Engi- ' neer (Electricity) in the service of the Government of Andhra ; Pradesh; He was charged with an offence_ under s.-302; Indian

; Pi:"aJ .Code for having committed -the ~µrder of his wife by : shooting lier~ with a revolver. During the investigation of the offence he was placed under suspension with effect from -. August 10. ]959 and was allowed subsistence allowance for . some time. His defence at'the. trial was that while his wife was picking _up the revolver from the teapoy on which he had kept it, suspecting that.he would shoot himself with it, it went off ; accidently and killed her" This defence was a.ccepted by the Sessions Judge and he was acquitted. On appeal by the State : tl)e , High. Court of Andhra Pradesh set aside the acquittal and ·

convictd'him of an'offencc under s. 302, I.P.C. and sentenced him to undergo imprisonment for life. He thereupon sought and obtained special leave from this Court to prefer an appeal.

During the pend_ericy of the appeal he died. According to the -_applicants a sum of Rs. 40,000 /- would be due to the. deceas- : ed, being -the difference between 'the ' Subsistence allowance

'actually paid _by the Government to him and the total emolu- . : ments that would have been payable to him from the da.te of

(') [1943] K.B. 15.

(') [1955] 1 Q.B.D. 573

suspension till his death and that they as his legal heirs would 1964

b~ entitled to get this amount in case the conviction and sen- Bondada Gajapaih11 tence are set aside by this Court.

Rao v.

In supper! of his contention that the appeal has not aba.t- State 01 Andhra Pradesh ed by reason of the death of the appellant Mr. K. R. Chaudhuri points out thats. 431 of the Code of Criminal Procedure Jfudholkar, J. (hereafter referred as the Code) which speaks about appeals is limited in its application to appeals under Ch. XXXI of the Code and would not fetter the powers of this Court under Art. 136 of the Constitution to hear an appeal brought before it by special leave even though the person who brought it is no longer alive. It is no doubt true that s. 431 of the Code only says that appeals under s. 411A, sub-s. (2) ands. 417 shall finally abate on the <lea.th of the accused and every other appeal under Chapter XXXI except an appeal from a sentence of fine shall fina!ly abate on the death of the appellant. It does not, therefore, in terms apply to an appeal permitted to be preferred by this Court in exercise of its discretion under Art. 136 of the Constitution. The argument of Mr. Chaudhuri is that the power conferred upon this Court by Art. 136 is wide and discretionary and is analogous to that conferred upon the High Court by s. 439 read with s. 435 of the Code. Therefore, upon an analogy of the decision cf this Court in Pranab Kumar Mitra v. The State of West Bengal and another(') this Court has the power to hear the appeal and to permit the applicants to prosecute it. He does not contend that the applicants have a right to be brought on the record in place of the deceased appellant but submits that to meet the ends of justice it would be right and proi>er to permit the applicants to prosecute the appeal because if it succeeds they will be able to claim from the Government the arrears with respect to salary due to their deceased father from the Government.

It seems to me that the decision upon which reliance has been placed has no bearing upon an appeal brought to this Court by special leave. It is no doubt true that the power conferred by s. 435 of the Code on the High Court and certain other courts and by Art. 136 of the Constitution on this Court is discretionary. In so far as the High Court and certain other courts are concerned the discretion is to call for and examine any record of any proceeding before an inferior criminal court situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order passed by the inferior court and as to the regularity of any proceeding of such court. Under s. 435 these courts have power to act in this manner suo motu and s. 440 provides that no party has a right to be heard either

(') (1959] Supp. 1 S.C.R 63.

L'd)D)ISCl-9 a) /

1964 personally or by a pleader before such court, with one excep- a- 'Pfllh tion. That exception is that the High Court cannot make an

R:;," Y order under s. 439 of the Code to the prejudice of an accused

T. person unless he is given an opportunity of being heard either stm;:!,, i1,"J!'lwa personally or by pleader in his defence. When the record comes before the High Court it may in its discretion exercise any of MU<Jlwlkar. J. the powers conferred on a Court of appeal by sections 423, 426, 427 and 428 or on a Court by s. 338 and has also the power to enhance the sentence. Article 136 of the Constitution confers discretion upon this court whether to grant special leave or not. But this Article does not confer any power upon this Court to call for the record of any court or tribunal suo motu for the purpose of examining it and making an appropriate order. It only empowers this Court to grant leave to a person to bring his appeal before it and afford him an opportunity of showing such error as may be existing in the judgment or order appealed from. There is a fundamental difference bet, ween a power which is exercisable by a Court suo motu and a power which can be exercised only when it is moved in that behalf by a party. For the exercise of suo motu power the appearance of a, party before the Court concerned is not a prerequisite. Indeed as s. 440 provides, it is for the Court to decide whether or not to allow the party to appear before it and be heard. But of course the principle of natural justice would preclude a court even in such a case from making an order to the prejudice of a party without giving the party an opportunity to be heatd. In so far as an appeal is concerned, by whichever way it is brought, whether as of right conferred by a prdVision in the Constitution or by any other law or by special leave the appellant has a right to be heard and a right to prosecute the appeal. A Court exercising suo motu powers may choose at any stage to drop the proceeding and not proceed to examine the records at all. But as long as an appeal is pending before a Court and there is a person legally competent to prosecute it and there is no legal impediment to its being heard, the Court has no discretion to refuse to go on with the appeal even though initially it may have been brought before it by its leave. As soon as the leave is granted a right accrues in favour of the party who has been granted leave. It may be that where this Court finds that leave has been improperly. obtained or given it may revoke the leave. But that is quite different from saying that without revoking the leave it can drop the appeal.

This distinction between revisional powers and appellate powers has been adverted to in the decision relied upon(') at p. 70. Sinha, J. (as he then was) has observed:

"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

(') [1959] Supp. l S.C.R. 63.

done in accordance with the recognized rules of 1964 Criminal Jurisprudence, and that subordinate BOfltlMa llajapallr criminal courts do not exceed their jurisdiction, or Rao abuse their powers vested in them by the Code.

Stat ; f°.<111<1Ma On the other hand, as already indica.ted, a right of ;:m,.h appeal is a statutory right which has got to be recognized by the courts, and the right of appeal, Mudholkar, J. where one exists, cannot be denied in exercise of the discretionary powers even of the High Court."

Thus, when the special leave granted by this Court has not been revoked it can exercise with respect to the appeal before it what may be called appellate powers. While hearing an appeal from the decision of a High Cburt, this Court will, therefore, be competent to exercise only such powers as the High Court itself could exercise in relation to the appeal. In so far as the procedure for hearing a criminal appeal by special leave is concerned this Court has framed certain rules. Order XXI of Supreme Court Rules, 1950 contains those rules. Rule 23 of that Order provides for the entering of appearance by parties in the aepeal. Rule 24 provides for the filing of statements of case by the parties. Rule 25 provides for setting down the appeal for hearing. Rule 26 empowers the Court to direct the engagement of an Advocate at the cost of the Government in a proper case where the accused person is not represented by an Advocate on record of his choice. Rule 27 provides for giving notice to the accusd where he is not represented on the date fixed for the hearing of the appeal and permits the accused person if he so wishes to present his case by submitting his argument in writing and provides for the consideration of the written argument at the hearing. Sub-rule (2) of that rule dispenses with necessity of production of the accused person in custody at the hearing of the appeal. There is no express rule which states as to what has to be done where the accused person who is an appellant is not present or represented at the hearing of the appeal. Order XLV, rule 5, however, preserves the inherent power of the Court to make such orders as may be necessary to meet the ends of justice or to prevent the abuse of the process of the Court. Thus this Court has the power to prevent the abuse of its process and it will be an abuse - of its process if the appellant despite service of notice of the

ate of hearing chooses to remain absent at the hearing. Now, 1ust as the Court can, under r. 18 of 0. XXI dismiss an appeal for non-prosecution where the appellant refuses to take the necessary steps f?r ringing the appeal to hearing, it must be eemed to have s1.milar power to dismiss it where the appellant is not preent or 1s not represented. Where the absence of the appellant is due to t!Je fact that he is dead it would still be a case ?f non-prosecution and, therefore, this Court would have the nght and the duty to dismiss the appeal. Since the power

1964 to prosecute the appeal inhered in the appellant alone, no one BOllllada Gadapathy else can claim to exercise it unless the law conferred such a

Rao right upon that other person. This the law may do expressly as v. it has done in 0. XXII of the Code of Civil Procedure or State f .Aoohra f h Praduh impliedly as it has done ins. 431 of the Code. Apart rom t e fact that in a criminal matter the issue is personal between the Mudlwlhar, J. accused person and the State the fact remains that the right of appeal is also personal to the appellant. It cannot be allowed to be exercised by another unless there is some provision in Jaw which would permit it to be xercised or unless such a course is permissible by reference to a principle. There is admittedly no express provision permitting the substitution of the legal representatives 'of a deceased appellant in a criminal appeal brought to this Court by special leave. We ha.ve, however, to bear in mind the policy ofihe Jaw as enacted ins. 431 of the Code. The policy is that every criminal appeal under chapter XXXI will abate except an appeal from a sentence of fine. Thus, instead of there being any principle on the strength of which the legal heirs of a person could be allowed to prosecute after his death an appeal brought by him challenging his conviction and sentence of imprisonment the policy of the Jaw is definitely opposed to it. Moreover, only a person who can properly represent a deceased appellant can be allowed to be brought on record in his pla.ce and prosecute the appeal. That is the principle upon which the provisions of 0. XXII of the Code of Civil Procedure are based. That again is the principle followed by the Courts in England in allowing appeals in which the challenge was to a fine imposed upon the appellant to be continued by the executors and administrators of the deceased appellant. As an instance of this would first refer to Hodgson v. Lakeman('). In that case Viscount Caldecote C.J.. permitted the executors of the deceased appellant claiming an interest in the appeal against his conviction and sentence of fine to prosecute the appeal. The fine, though a small one, would have been a burden on the estate and thus the executors could be said to have had an interest in having that burden removed. This case was distinguished in Regina v. Rowe(') In that case the widow of thl' deceased appellant sought lea.ve to prosecute the appeal in which he had challenged his conviction on four counts of obtaining money by false pretences and the sentence of imprisonment to 18 months. The ground on which the widow's application was supported was that the conviction against her husband affected her chances of employment and her position among her friends and that if interest is the test, then the widow also had an interest. This argument was repelled by Lord Goddard C.J. who said that the Court cannot take notice of that because the interest she

(') [1943] 1 K.B. 15.

(') [1955] 1 Q.B.D. 573.

has was not a pecuniary one. It was further urged before the 1964 Court that where any person might be prejudiced b)' a convic Bondada GaJapaJhy tion against a deceased person, and an appeal was lodged RM before the death of that person, the Court should allow the St t vAndhra appeal to be continued by tha.t person so that if there had been "~:£i .. h a miscarriage of justice and the heirs of the deceased were living under the shadow of the fact that their relative had died Mwlholkar, J. a convict, the interests of justice would require that the appeal be heard. To this argument the answer of the learned Chief Justice was that this would be a case for making an application for a free pardon. In the course of the judgment he observed:

" ............... 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 payment of the fine-it might be immediately afterwards-it may be that the court would allow executors or administrators to appeal merely on the ground that if the conviction were quashed they could recover the fine for the benefit of the esta, te of the deceased which they are bound to administer. In Hodgson

v. Lakeman(') to which our attention was called, which was a case before the Divisional Court, but the principle would be the same, the appellant was dead, and the court allowed the executors to continue the . appeal because there was a . pecuniary interest. Supposing, as sometimes happens, a man is convicted on indictment and fined £500; the money has to be paid, and the Crown can recover that money whether he is alive or dead, for it can recover it against his estate, and, therefore, it would be an injustice if the executors were not allowed to appeal and to say tha.t the conviction was wrong, because, if it was wrong, the money would be saved.

It may be. that it is artificial to say that if there is a pecumary pe1:1aity an appeal might lie, whereas if corporal pumshment or imprisonment is imposed

thre cannot be an appeal, but at the same time I do not see any ground on which we can say in the present case that anybody has an interest. It may be tha.t the widow would be very glad to have her

husand's name ~!eared, ut we cannot take any vot1ce of that sentunental mterest. There is nobody affected now by the judgment of the court because

(') (1943] K. B. 15.

&, v.la, da Gajapalhy

Rao

Biol< of Andhra

Pradesh

MudholTcar, J.

the judgment was a sentence of imprisonment and the prisoner has died. It would be a very novel step if, in these circumstances, we said that the court would entertain an appeal."

In Short and Mellor's (The Practice on the Crown Side of the King's Bench Division, second edition) it is stated at p. 425 that the practice does not seem to be uniform and reference is made to some cases. In one of them-Hesketh v. Atherton(') the counsel was allowed to argue an appeal after the death of one of the parties. But in Leach v. Wanstead School Board('f

wherein a conviction against the father of a child for not sending the child to school was challenged in appeal and the father and the child had died in the meanwhile, the Court refused to allow the case to be argued on the ground that there was no interest surviving. In Siberry v. Connolly(') where there was a claim for seaman's wages, the appellant's executors were allowed to take the place of the deceased appellant. In Constantine v. Illingworth(') where the defendant in a criminal case had died, the Court ordered the case to be struck ont. The same was done in Jones v. Fallowfield('). In Rivers v. Glasse(') 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 gave costs to the respondent's executors. The position so far as the United States is concerned 'is set out as follows('):

"The death of an accused ordinarily abates a criminal action, including review proceedings pending. at that time.

The interest of the deceased's representatives or next of kin in clearing his good name was held in United States v. Mook(') not to be sufficient to allow the appellate court, after the defendant's death pending his appeal from a conviction of violating the Interstate Commerce Act, to decide the appeal on the merits. The court however, added: 'we think 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."'

Thus in that jurisdiction also the basis of intervention, when permitted, is a survival of an interest in the heirs or executors of the deceased. That interest would only be a pecuniary one

(')Short and Mellor at p. 425. (') ibid. (') ibid. (') 1 L.Ed. 2nd Series, p, 1879.

(') ibid.

(') ibid. (') ibid. (') 125 F2d. 706.

. ff edb h 't' th 1164 .and where the estate 1s not a ect y t e conv1c ion ere __ would be no ground for allowing the intervention of the heir Bondada Gajapathv -0r executor. It may be that the interest of the heirs of the Raa deceased convict to clear his name should be recognised and State ofA..U.ra .they ought to be allowed an opportunity to clear it. But unless Pra4ulo it is recognised by the legislature the court cannot take notice . .

Mudlioll:a, J. of it. So far as the Court is concerned. the only question arising in the appeal before us is whether the conviction and sentence of imprisonment are correct in law. The only person who had an interest in the appeal before the Court in showing :that both were not justified was the appellant and since he is dead, the interest which he had ceases to exist and cannot pass to anyone.

Another case which was referred to at the bar was The State of Kera/a v. Narayani Amma Kamala Devi(') in which the decision in Pranab Kumar Mitra's case(') was relied upon and reference was made to Imperatrix v. Dongaji Andaji('\ In that case also the question was whether the High Court <:ould exercise its revisional powers against an accused person even after his death. There the Court was not concerned with its own powers with respect to a criminal appeal brought before it by special leave.

It is then said that the applicants have an interest inas much as the estate of the deceased appellant would be enrich ed by Rs. 40,000 /. if this Court ultimately finds the appellant innocent and if the Government, acting on the basis of the decision of this Court which is binding upon it, rscinds the suspension order passed against the appellant and in conformity with it pays the arrears of salary due to the appellant.

This interest is not a direct interest in the sense that it cannot arise out of the decision of this Court even if it is in favour of the appellant. The only interest which the applicants have is a contmgmt one a~~ is not ne which could flow directly out of the ultimate dec1s10n of this Court. If we may mention, the argument advanced in Rowe's case(') before Lord Goddard C.J., that by clearing her deceased husband's name the widow's chances of secur!ng employment would improve was not accep.ted as creahg. a pecuniary interest such as to justify grantmg her perm1ss10n to prosecute the appeal.

Indeed, te legislature has, by , limiting in s. 431 of the Code the SUM.val of appeals to appeals against sentences of fine has chosen to recognise only OIJle kind of interest and no <>th er There ould be several other kinds o( interest, as was suggested durmg the arguments at the bar. But this Court, in

(') [1962] Supp. 3 S.C.R. 943. (') [1959] Supp, 1 S.C.R. 63. (') (1879) I.L.R. Born. 564.

(') [1955] 1 Q. B.D. 573.

' [1964)

1964 exercise of its inherent powers or discretionary powers, would &nilada Gajapathy not be acting according to correct legal principles in recog-

Roo nising a kind of interest which the legislature has not chosen to - BtoJe o/A..ihra recoise. In the circumstances, therefore, I am clear that the Pradeah applicants ought not to be granted Iea.ve to prosecute the appeal.

Jlwlholkar, J.

Leave to prosecute appeal refused.

RAO

STATE OF ANDHRA PRADESH

A. K. SARKAR

M. HIDAYATULLAH

R. MUDHOLKAR, JJ.

Code of Criminal Procedure, 1898

s. 431, 435, 439

Constitution of India

Art. 136

section 302

Indian Penal Code

Government of Andhra Pradesh

s. 431

code of criminal procedure

s. 431

Pranab Kumar Mitra

Art. 136

Hidayatullah

MudhqJkar

section 435

Article 136

section 439

sections 423, 426, 427 and 428

s. 338

Section 435

article 136

Art. 136

s. 431

section 431

section 431

K. R. Chaudhuri

A. S. R. Chari

B. R. G. K. Achar

R. N. Sachthey

SARKAR

Sarw

Art. 136

SUPHEME COUHT REPOHTS

There would seem to be authority for the proposition that revision petitions and some appeals from sentences of fine might be continued by his legal representatives on the death

SUPHEME COUHT REPOHTS [1964]

111a1 of the accused pending the proceeding: see s. 431 of the Code

lB ,d aa th of Criminal Procedure and Pranab Kumar Mitra v. The State Orw.u a 'J<tpa.

s. 431

s. 431

.Yarkar

Code of Criminal Procedure

[1959] 1 S.C.R. 6

HloAYATULLAH

urider Hida.vatullah

s. 302

Indian Penal Code

High Court of Andhra Pradesh

August 30,

1963

October 5, 1963

State of Andh.ra I • Pradesh

s. 431

s. 411

s. 2

s. 417

s. 431

s. 431

Criminal Procedure Code

s. 439

s. 431

HidayalullaA

s. 431

Supreme Court of the United States

United States

Mwlholkar

MuDHOLKAR,

Government of Andhra ; Pradesh

August 10. ]959

High. Court of Andhra Pradesh

s. 302

I.P.C

K. R. Chaudhuri

Code of Criminal Procedure

Jfudholkar

Art. 136

s. 431

s. 411A

Art. 136

Chaudhuri

Art. 136

s. 439

s. 435

s. 435

Art. 136

s. 435

s. 440

s. 439

Jlwlkar

sections 423, 426, 427 and 428

s. 338

Article 136

s. 440

Sinha

s. 439

s. 435

Mudholkar

Order XXI of Supreme Court Rules, 1950

BOllllada Gadapathy

the Code of Civil Procedure

Mudlwlhar

the Code of Civil Procedure

England

Viscount Caldecote

Goddard

MudholTcar

Bondada Gajapathv

ff edb h 't' th 1164 .and where the estate 1s not a ect y t e conv1c ion ere  would be no ground for allowing the intervention of the heir Bondada Gajapathv -0r executor.

Mudlioll

Rowe

s. 431

Jlwlholkar