IMPORTANT POINT
Section 394 of Code of Criminal Procedure provides that every appeal shall finally abate on death of the appellant.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. This appeal was filed challenging the correctness of the judgment of a learned Single Judge of the Orissa High Court. The appellant-Hari Prasad Chhopolia was convicted for offences punishable under Sections 135(b)(1) of the Customs Act, 1962 (in short the ‘Customs Act’) and Section 85 (ii), (iii), (viii) and (ix) of the Gold (Control) Act, 1968 (in short the ‘Gold Act’) by the trial Court. The High Court by the impugned oder set aside the conviction and sentence for the offence punishable under Section 135(b)(1) of the Customs Act while upholding the conviction for the offence punishable under Section 85 of the Gold Act. Leave was granted by this Court by order dated 17.1.2002. The matter was listed for hearing on 7.6.2007 when none appeared for the appellant. The matter was adjourned to 12.6.2007 when it was mentioned that the appellant-Hari Prasad Chhapolia has died. Learned counsel for the appellant wanted to take instructions and, therefore, the matter was directed to be listed after three weeks. The matter was listed on 17.7.2007 when on the prayer made by the learned counsel for the appellant the matter was adjourned by four weeks. On 29.8.2007 the following order was passed :

“Learned counsel for the appellant prays for time. From the order sheet, it is clear that on June 12, 2007 the matter was called for final hearing before the vacation Bench. At that time, it was stated that the appellant has expired. The learned counsel for the appellant sought time to get instructions. Accordingly, the matter was adjourned. Again the matter was placed on July 17, 2007 and on that day also order was passed to list the matter after four weeks.

Even today, learned counsel for the appellant prays for time. As a last chance, list the matter after two weeks.”

2. On 25.10.2007 six weeks’ time was granted to the counsel to file vakalatnama and memo of appearance on behalf of legal heirs of the deceased appellant. It is to be noted that by that time no application for bringing on record the legal heirs of the deceased appellant had been filed. Again on 11.12.2007, at the request of learned counsel who appeared for the deceased appellant, the matter was directed to be listed after one week. On 11.6.2008, on request the matter was directed to be listed today. It appears that an application has been filed on 4.1.2008 for substitution for bringing legal representatives of the appellant on record along with the application for condonation of delay. The only ground indicated in the application seeking condonation was that the legal heirs of the appellant were not aware that the death of their father has to be intimated to the counsel at Delhi for preparing and filing the application for substitution. The moment they knew about this requirement they contacted their counsel and application has been filed on 4.1.2008.

3. Learned Additional Solicitor General appearing for the respondent submitted that there is no scope for accepting the application. Section 394 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) has no application to an appeal before the Supreme Court. In any event, time statutorily prescribed is 30 days. In the instant case, application has been filed nearly after one year of the death of the appellant-Hari Prasad Chhapolia. Therein also no explanation has been offered as to why the application was filed after such a long time. Accordingly, he submitted that there is no scope for condoning delay beyond the period of 30 days.

4. In State of A.P. v. S. Narasimha Kumar and Ors.,1 (2006 (5) SCC 683), it was noted as follows :

“6. 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 Hon’ble Judges. The principles as can be culled out from the said de