(1) This criminal appeal is filed by the Complainants 1 and 2 as Appellants 1 and 2 against order of acquittal of the Respondents 1 to 3/A-1 to A-3 recorded by XVII Metropolitan Magistrate, Hyderabad in C.C. No.732 of 2003 vide judgement dated 26-04-2005. When this Appeal has been pending in this Court, the first complainant/first appellant died on 19-12-2007; therefore, Crl.A.M.P. (S.R.) No.28256 of 2011 is filed for impleading the Petitioners 3 to 6 therein who are her husband and children, as her legal representatives (L.Rs). Crl.A.M.P. No.1431 of 2011 is filed by them for condoning the delay of 1318 days in filing the L.R. Petition. These petitions are opposed by the respondents/accused.

(2) L.Rs of the deceased first appellant were sought to be brought on record under Section 394 (2) Cr.P.C. Section 394 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”.

Sub-section (1) deals with effect of death of an accused in an appeal filed by the State of by the complainant. Sub-section (2) relates to effect of death of an appellant in any other appeal. This appeal is filed by the appellants 1 and 2 under Section 378 (4) Cr.P.C. In this appeal, there is no abatement as such due to death of the first appellant since the second appellant/second complainant can effectively prosecute the appeal before this Court even in the absence of the first appellant. But husband and children of the deceased first appellant intend to come on record in the place of the deceased first appellant.

(3) Placing reliance on Thothan V. Murugan 1958 Crl.L.J. 1488of the Madras High Court, it is contended by the appellants’ counsel that since there is no provision in the Code providing for the legal representatives of the deceased appellant/complainant to continue the proceedings in the appeal, the petition for bringing husband and children of the deceased first appellant on record is not maintainable. While considering similar provision under the old Code of Criminal Procedure, 1898 the Madras High held as follows :

“This is an appeal under Section 417 Cr.P.C. under the terms of S.431 Cr.P.C. this can abate only on the death of the accused. The other appeals, i.e., appeals which are filed Under Sections other than Section 417 Cr.P.C. abate only on the death of the appellant. The right of appeal which is given to the complainant was introduced by the Amending Act of 1955. Parliament is supposed to have taken notice of Section 431 Cr.P.C. also when the amendment was passed. But there is this lacuna in the section, namely, as to what is to happen in Case where the accused does not die and the appeal is not by the accused but by the complainant and he dies pending disposal.

I should think that in the absence of a specific provision for the legal representative to be brought on the record, the appellant having died, the question of prosecuting the appeal further does not arise.

5. In the circumstances, the only order that could be passed is the dismissal of the application to bring on record the legal representative.”

The above situation under Section 431 of the old Code of 1898 continues even after replacing the old Code with the new Code of the year 1973 by Section 394.

(4) On the other hand, reliance is placed by the appellants’ counsel on Jimmy Jahangir Madan V. Bolly Cariyappa HindleY AIR 2005 S.C. 48ofthe Supreme Court wherein the Supreme Court while holding that power o