1. In this revisional application, directed against an order of conviction of Sailendra Sunder Mitra under Section 420, Penal Code in which the accused was sentenced to one day's imprisonment and to pay a fine of Rs. 500/-, in default to suffer rigorous imprisonment for six months more, the first question arising for decision is whether an application for substitution of the heir of Sailendra Sunder Mitra who is now dead can be allowed. Section 431, Criminal P. C. provides that every appeal shall abate finally on the death of the accused except an appeal from a sentence of fine. The questions therefore, for decision are, firstly, whether this provision applies to revisional applications and secondly, whether it applies when there is a composite sentence of imprisonment and fine.
2. Mr. Banerjee appearing for the State has pointed out that Section 439, Criminal P. C. does not in terms refer to Section 431, Criminal P. C. and he has therefore contended that the provision as to abatement does not apply to a revisional application Section 439, Criminal P. C. no doubt does not contain a reference to Section 431, Criminal P. C.; but the several sections mentioned therein, namely, Sections 423, 426, 427, 428 and 338, refer to powers which the High Court as revisional Court exercises. Section 431, Criminal P. C. does not refer to powers in revision and therefore there is no scope for reference to Section 431 in Section 439, Criminal P. C. Thus, merely, because there is no reference to Section 431 in Section 439, it does not follow that the provision as to abatement does not apply to revisional applications. If the provisions of Section 431, Criminal P. C. were not to apply mutatis mutandis to revisional applications, it would follow that the revisional applications would not abate at all and would have to be heard on merits. That cannot, however, be the scheme of the Criminal Procedure Code that a re-visional application should not abate while an appeal should abate on the death of the accused. It would be logical to apply the provisions as to abatement contained in Section 431, Criminal P. C. with necessary modifications to revisional applications. That, In fact, has been the view of several other High Courts. Reference may be made to the case of Daulat Ram v. Emperor, 20 Cri LJ 214: (AIR 1919 Lah 347) (A), .which is a decision of the Punjab High Court and to the case of Ramdhani Gope v. Jagesher Mahto, 42 Cri LJ 653 : (AIR 1941 Pat 526) (B), which is a decision of the Fatna High Court. There appears to be no decision of any High Court to the contrary. Accordingly, we hold that the provisions as to abatement apply with suitable modifications to a revisional application.
3. As to the next question whether it applies when there is a composite sentence, Section 431, Criminal P. C. provides that every appeal abates on the death of the accused except an appeal from a sentence of fine. Mr. Banerjee appearing for the State has urged that therefore an appeal or a revisional application would be saved only when there is a sentence of fine only and not when there is a composite sentence of imprisonment and fine. But the principle on which Section 431 is based is that under Section 70, Penal Code the heirs of the accused sentenced to a pay a fine are liable to the extent of the estate of the deceased accused in their hand. That liability would attach to them even when there is a composite sentence. We would, therefore, hold that the principle of Section 431 applies even when there is a composite sentence but only so far as the sentence of fine is concerned. Accordingly, we allow the application for substitution.
4. Turning now to the revisional application, the question arises whether the conviction may be challenged or only the sentence of fine may be challenged. It has already been mehtioned that Section 431, Criminal P. C. provides that only an appeal from a sentence of fine is saved from abatement. When there is a composite sentence, the appeal abates so far as the sentence of imprisonment is concerned and is saved only so far as the sentence of fine is concerned. It is ho doubt true that in the Patna case, referred to above, the conviction was also set aside when there was a sentence of fine only. We need not go into the question whether the conviction could be challenged if there was a sentence of fine only. It must be held that when there is a composite sentence and sentence of imprisonment cannot be challenged, the appeal havingabated so far as that sentence is concerned the conviction also cannot be challenged and therefore the revisional application must be limited to the question whether the sentence of fine is proper or unduly severe. Accordingly, we need not go into the question raised by Mr. Dutt that the trial by the ordinary Court, namely, the Magistrate, 1st Class, Alipur, was without jurisdiction and that the case should have been tried by a Special Judge. We shall only concern ourselves with the question whether the sentence of fine of Rs. 500/-is unduly severe in the circumstances of the case.
5. The charge against the accused Sailendra Sunder Mitra, is that he drew arrears of pay for the period 5-1-1946 to 28-2-1946, twice over, the amount being Rs. 205-13 annas. There was also another charge against him in respect of overdrawing of pay of another clerk to the extent of Rs. 33-4 annas but that allegation was not proved and the accused was acquitted of that charge. Accordingly, the loss to the Railway Company was Rs. 205-13 annas and Mr. Dutt tells us that sailendra Sunder Mitra in his lifetime offered to refund that amount on several occasions. That was the extent to which sailendra Sunder or his estate benefited from the unlawful act of Sailendra and it would be sufficient, in our opinion, to limit the fine to that amount. Accordingly, we reduce the sentence of fine to Rs. 205-13 annas. The whole amount, if realised, will go to the B. N. Railway Administration, now South Eastern Railway. The revisional application is disposed of accordingly.
P.K. Sarkar, J.
6. I agree.