Das Gupta, J. - (1.) Can an application for revision under S. 439 of the Criminal Procedure Code be entertained by the High Court after the death of the accused person against whom the order was made That is the important question raised in this appeal. Gobindankutty Nair, a Cashier of the Trivandrum Branch of the State Bank of India was convicted by the Sub-Divisional Magistrate, Trivandrum, of an offence under S. 381 of the Indian Penal Code on a charge of theft of an amount of Rs. l0,000 belonging to the Bank. A Fiat Car which has been purchased by the accused was seized by the police during the investigation of the case and it was alleged that this had been purchased with the money stolen by the accused. The car was sold under the orders of the Court and the sale proceeds deposited in Court. The Magistrate sentenced the accused to rigorous imprisonment for one year and also ordered that the sale proceeds of the car would be withdrawn by the Head Cashier of the Bank for appropriation towards the amount proved to have been stolen by the acussed.
(2.) The accused's appeal to the Sessions Court was unsuccessful. Though no separate order was made by the Sessions Court in respect of the Magistrate's order for withdraw of the sale proceeds of the car by the Head Cashier, that order was also by implication affirmed by him. The Sessions Court delivered judgment on August 13, 1959 and on that very date within a few hours of the pronouncement of judgment the accused Gobindankutty Nair died. On November 11, 1959 the widow of the accused and his two minor sons presented an application under S. 489 in the High Court of Judicature of Kerala against this judgment of the Sessions Court. They prayed that the order of conviction and sentence passed against the accused and also the order as regards the sale proceeds of the car should be set aside. The High Court rejected a preliminary contention raised on behalf of the State of Kerala that the accused Gobindankutty Nair having died, this application for revision was not maintainable, it then considered the application on its merits and set aside the conviction of the accused and also the order directing the payment of the sale proceeds of the motor car to the Head Cashier. The High Court however granted a certificate under Art, 134 (1) (c) of the Constitution that this was a fit case for appeal to this Court and on that certificate this appeal has been preferred by the State of Kerala.
(3.) The principal point urged in support of the appeal is that after the death of the accused no revision application lay to the High Court against order of the Sessions Court maintaining his conviction. Learned Counsel for the appellant has based his argument in support of this contention. on the principle embodied in the maxim actio personalis moritur cum persona and has urged that except where the statute has stepped in to make any special provisions no proceedings either against the accused or on behalf of the accused can be entertained or continued in the Court in respect of any crime said to have been committed by a person after the death of such person. He has drawn our attention to Salmond's observations in his "Jurisprudence" Eleventh Edition, page 442:That criminal responsibility must die with the wrongdoer himself, and has urged that as all criminal proceedings are personal actions, proceedings in connection with a crime can, in the absence of any statutory provision, neither be commenced or continued against an accused person or on his behalf unless he is in existence. It may be noted however that Salmond himself goes on to say in discussing the matter that the modern opinion rejects the conclusion based on the received maxim actio personalis moritur cum persona, that all actions for penal redress must be brought against a living offender and must die with him. What is more important to notice is that we are not concerned here with the question of criminal proceedings being continued or commenced against a person but with the question whether when a criminal proceeding has ended unfavourably to an accused per son, any action can be taken in the court in respect thereof. On this question the common law maxim is of little, if any, use and the answer to the question must be found in other provisions of law. The Criminal Procedure Code gives a right of appeal to the convicted person in certain cases. If, after the conviction and before an appeal has been filed the convicted person dies, there is no provision for any appeal on his behalf. What will happen when after an appeal has been filed by the convicted person, he dies, is provided for in S. 431 of the Criminal Procedure Code.That section provides that every appeal against acquittal and every other appeal under Chapter XXXI except an appeal from a sentence of fine shall finally abate on the death of the appellant. The High Court or the Court of Sessions cannot therefore exercise its appellate jurisdiction in favour of a dead person even if an appeal has been filed by him, except in an appeal from a sentence of fine.;