IMPORTANT POINT
In an appeal by State against judgment of acquittal, on death of respondent-accused, appeal shall abate.

Headnote:Criminal Procedure Code, 1973 — Section 394 — Abatement of appeal — State appeal against judgment of acquittal — Death of respondent during appeal — Whether appeal would abate — Yes.
       Held : The aforesaid D.V. Chandrasekhar died on 15.1.2004 and leave has been granted on 6.2.2004. It is conceded by learned counsel for the parties that neither in the Cr.P.C. nor in the Supreme Court Rules there is any provision dealing with such a situation. Section 394 Cr.P.C. reads as follows:
       "394. Abatement of appeals. — (1) Every appeal under Section 377 or Section 378 shall finally abate on the death of the accused.
       (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant:
       Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.
       Explanation — In this section, "near relative" means a parent, spouse, lineal descendant, brother or sister."
       It is to be noted that Section 394 Cr.P.C. corresponds to Section 431 of the Code of Criminal Procedure, 1898 (in short the Old Code). In Bondada Gajapathi Rao v. State of Andhra Pradesh (AIR 1964 SC 1645) three-judge Bench of this Court was dealing with the situation as to whether appeal by special leave against sentence of imprisonment abates on the death of the accused/appellant. Three separate judgments were rendered by the Honble Judges. The principles as can be culled out from the said decision are as follows: (though rendered in the context of the Old Code are equally applicable under the Cr.P.C.).
       (1) Section 431 of the Old Code does not apply proprio vigore to a case of appeal filed with the special leave of the Supreme Court granted under Article 136 of the Constitution of India, 1950 (in short the Constitution) when the appellant-accused dies pending the appeal.
       (2) But where the appeal is against sentence of fine, the appeal may be permitted to be continued by the legal representatives of the deceased appellant accused. There is no provision making such appeals abate. If they can be continued when arising under the Old 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.
       (3) 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.
       (4) But where the sentence is not one of fine but of imprisonment, which on the death of the accused becomes infructuous, the sentence does not affect the property of the deceased-accused in the hands of his legal representatives, and therefore, the appeal, in such a case, would abate, upon the death of the accused.
       (5) In fact that the accused was a government servant and was under suspension during the trial and the fact that if the conviction and sentence were set aside, his estate would be entitled to receive full pay for the period of suspension, cannot be said to affect his estate, because, the setting aside of the sentence would not automatically entitle the legal representatives to the salary. It would be extending the principle applied to the case of a sentence of fine, if on the basis of it appeal against imprisonment is allowed to be continued by the legal representatives after the death of the appellant and for such an extension there is no warrant. Reference was made to Pranab Kumar Mitra vs. State of West Bengal and Anr. (AIR 1959 SC 144).(Paras 4 to 7)
       In view of what has been stated in the aforesaid two cases, the appeal filed by the Stated of Andhra Pradesh so far it questions correctness of the judgment in Criminal Revision no.1424 of 2001 stands abated on the death of the respondent D.V. Chandrasekhar (A-3). The cause title shall indicate the applicants name to avoid confusion. The application is accordingly disposed of.(Para 9)

JUDGMENT

Arijit Pasayat, J. — This petition has been filed by wife of one D.V. Chandrasekhar who was accused no.3 in C.C. No.53/1990 and was respondent no.3 in the appeal. It is to be noted that the appeal has been filed against the judgment rendered by a learned Single Judge of the Andhra Pradesh High Court disposing of several Criminal Revision petitions.

2. All those revision petitions related to the judgment of the Court of the VII Additional Munsif Magistrate, Guntur in C.C. No.53 of 1990. The accused persons are described as A-1, A-2, A-3 etc. A-1 was charged with offences punishable under Sections 381, 411 and 120-B of the Indian Penal Code, 1860 (in short IPC); A-2 to A-11 and A-15 were charged with offences punishable under Sections 120-B and 414 I.P.C. A-12 to A-14 were charged with offence punishable under Section 411 I.P.C. A-4 died during the trial of the case. The case against A-10 was separated. Through its Judgment dated 26.11.2000 the trial Court convicted the above said accused persons for the offences alleged against them and awarded sentences of various descriptions.

3. The High Court set aside the conviction and sentence imposed in respect of the concerned respondents. In the appeal as noted above, the deceased D.V. Chandrasekhar who was A-3 is the respondent in the Criminal Appeal relating to Criminal Revision no.1424 of 2001. The applicant has filed the present appeal stating that on the death of the said respondent the appeal abated so far he is concerned. The logic of Section 394 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) was pressed into service. Learned counsel for the State on the other hand submitted that Section 394 Cr.P.C. does not govern the case of an appeal by special leave before this Court.

4. The aforesaid D.V. Chandrasekhar died on 15.1.2004 and leave has been granted on 6.2.2004.

5. It is conceded by learned counsel for the parties that neither in the Cr.P.C. nor in the Supreme Court Rules there is any provision dealing with such a situation. Section 394 Cr.P.C. reads as follows:

"394. Abatement of appeals. — (1) Every appeal under Section 377 or Section 378 shall finally abate on the death of the accused.

(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant:

Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.

Explanation — In this section, "near relative" means a parent, spouse, lineal descendant, brother or sister."

6. It is to be noted that Section 394 Cr.P.C. corresponds to Section 431 of the Code of Criminal Procedure, 1898 (in short the Old Code).

7. In Bondada Gajapathi Rao v. State of Andhra Pradesh (AIR 1964 SC 1645) three-judge Bench of this Court was dealing with the situation as to whether appeal by special leave against sentence of imprisonment abates on the death of the accused/appellant. Three separate judgments were rendered by the Honble Judges. The principles as can be culled out from the said decision are as follows: (though rendered in the context of the Old Code are equally applicable under the Cr.P.C.).

(1) Section 431 of the Old Code does not apply proprio vigore to a case of appeal filed with the special leave of the Supreme Court granted under Article 136 of the Constitution of India, 1950 (in short the Constitution) when the appellant-accused dies pending the appeal.

(2) But where the appeal is against sentence of fine, the appeal may be permitted to be continued by the legal representatives of the deceased appellant accused. There is no provision making such appeals abate. If they can be continued when arising under the Old Code, there is no reason why they should

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2006 Supreme(SC) 609

IMPORTANT POINTIn an appeal by State against judgment of acquittal, on death of respondent-accused, appeal shall abate.

Cases Referred (2)

IMPORTANT POINT
In an appeal by State against judgment of acquittal, on death of respondent-accused, appeal shall abate.