ORDER

1. The sole appellant in this appeal Smt. Bimala Devi Khetawat has been convicted for the offence punishable under Section 120B/302 IPC on the allegation that she was a party to a conspiracy to commit murder of two of her neighbours and sentenced life imprisonment by the learned Additional Sessions Judge, 6th Court, Alipore. The Criminal Appeal preferred by her in the High Court of Calcutta was dismissed. She preferred a special leave petition under Article 136 of the Constitution of India against the said judgment and order dated 25.9.2006 passed by the High Court at Calcutta. This Court vide its order dated 5.2.2007 granted leave.

2. That on 16.6.2008 the appellant died. The husband of the deceased appellant Jugal Kishore Khetawat filed an application seeking leave of the court to continue the appeal. In the said application it is averred that "even though the appellant has died, the name of the appellant has not been cleared of the charges and of the conviction. It is further submitted that it is in the interest of justice that the stigma attached to the name of the appellant is cleared which is also adversely affecting the near family and relatives of the appellant. It is under these circumstances, the applicant who is the husband of the deceased appellant has filed the present application seeking leave to continue with the appeal."

3. The Registrar of this Court vide order dated 7.8.2008 passed the following order:

Crl. M.P. No. 11889/2009 is allowed. Amend the cause title accordingly. Thereafter, office to process for listing.

4. A short question that arises for our consideration in this appeal is whether the husband of the deceased appellant is entitled to continue the appeal and, if so, whether leave to continue the appeal could have been granted by the Registrar of this Court.

5. Section 394 of the Code of Criminal Procedure, 1973 which is relevant for our present purpose reads as under:

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. A plain reading of sub-section (2) of Section 394 suggests that every appeal preferred under Chapter XXIX except an appeal from a sentence of fine shall finally abate on the death of the appellant. However, a provision is made 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; `near relative' means a parent, spouse, lineal descendant, brother or sister.

7. Such a proviso has been added in the following circumstances:

An amendment to Section 431 was suggested in the Bill introduced in the Parliament by a private Member, Shri K.V. Raghunatha Reddy. The main object of the amendment was to provide a machinery whereby the children or the members of the family of a convicted person who dies during the appeal could challenge the conviction and get rid of the odium attaching to the family as a result of the conviction. The Law Commission of India by its Forty-First Report (September 1969, Vol. I, pp. 279-81) found the proposed amendment "eminently sound" and recommended that the amendment be made with certain modifications. Accordingly Section 394 of