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2019 Supreme(Gau) 1065
IN THE HIGH COURT OF GAUHATI
ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI, JJ.
Malaya Das - Appellant
Versus
State of Assam and Ors - Respondent
IA (Crl.) No. 137 of 2019
Decided On : 30-04-2019
Advocate Appeared:
For the Appellant :K. Sarma, Advocate
For the Respondent: S. Jahan, Addl. PP
Headnote:
Code of Criminal Procedure, 1973 – Section 2 357 358 372 394 482 – Code of Criminal Procedure, 1898 – Section 417 417(A) 431 – Indian Penal Code – Section 304(B) 302 34 – Substitution Of Appellant in Criminal Appeal – This interlocutory application has been preferred inter alia praying that the applicant be substituted/impleaded as the appellant in the accompanying Criminal Appeal, in a situation where in exercise of the powers under the proviso to Section 372 of the Code of Criminal Procedure, 1973 late person had preferred the appeal against the acquittal of the accused respondent by the judgment and order of the learned Additional Sessions Judge – Counsel for the accused respondents has raised an objection that there being no provision for substitution under the Cr.P.C. the present application is to be rejected with a further submission that under the provision of Section 394(2) of the Cr.P.C., the appeal stands abated on the death of the appellant – Held, The proposition laid down by the Supreme Court is explicitly clear that once an appeal against acquittal has been entertained by the High Court, it is the duty of the High Court to decide the same on its merit irrespective of the fact whether the appellant continues to prosecute to the appeal or for any other reason is unable to prosecute with – The said proposition can also be relied upon to take a view that in an appeal against acquittal if the appellant dies in the meantime, the same on its own also cannot be a reason for the appeal to be abated and it is the duty of the High Court to decide the appeal on its own merit irrespective of the appellant being not there – As the provision of Section 394 of the Cr.P.C. 1973 is pari materia with that of Section 431 of the Cr.P.C. of 1898, Court is of the view that the same proposition of law as laid down by the Supreme Court would also be applicable in respect of the provisions of Section 394 Cr.P.C. of 1973 – Accordingly, Court is unable to accept the contention of the accused respondents that the accompanying appeal preferred by the victim under the proviso to Section 372 of Cr.P.C. of 1973 stands abated on the death of the victim appellant – As the appeal against acquittal under the provisio to Section 372 of the Cr.P.C. of 1973 had not abated as concluded hereinabove and the appeal continues to remain on board we are of the view that without addressing the issue as to whether the appellant on his death can be substituted under the provision of Code of Criminal Procedure of 1973, the present applicant being also a victim under Section 2(wa) of the Code of Criminal Procedure can be allowed to further prosecute the appeal which otherwise has not abated – In view of the above, Court is of the view that ends of justice would be met if the applicant victim mother be allowed to participate and continue with the accompanying criminal appeal against the judgment and order of the learned Sessions Judge acquitting the accused respondent of the charges under Section 304(B)/302/34 IPC and is accordingly allowed to do so – I.A. stands disposed of in the above terms – Application Disposed Of
JUDGMENT :
ACHINTYA MALLA BUJOR BARUA, J.
1. Heard Mr. K. Sarma, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor and Mr. A. Hussain, learned counsel for the accused respondent.
2. We have requested Mr. N. Dutta, learned senior counsel for having his view as to whether on his death, the victim appellant on whose behalf the present appeal has been admitted, can be substituted by his wife for the purpose of carrying forward the appeal.
3. This interlocutory application has been preferred by Smti. Malaya Das, wife of late Dhirendra Nath Das inter alia praying that the applicant be substituted/impleaded as the appellant in the accompanying Criminal Appeal 97/2017, in a situation where in exercise of the powers under the proviso to Section 372 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) late Dhirendra Nath Das had preferred the appeal against the acquittal of the accused respondent by the judgment and order dated 10.02.2016 of the learned Additional Sessions Judge, Bajali, Pathsala in Sessions Case No. 185/2015.
4. Mr. A. Hussain, learned counsel for the accused respondents has raised an objection that there being no provision for substitution under the Cr.P.C. the present application is to be rejected with a further submission that under the provision of Section 394(2) of the Cr.P.C., the appeal stands abated on the death of the appellant.
5. Along with Mr. K. Sarma, learned counsel for the applicant, we have also heard Mr. N. Dutta, learned senior counsel who was requested to assist the Court for his submission on the aforesaid legal issue as to whether the applicant can be substituted for the deceased appellant and secondly whether the appeal stood abated on the death of the appellant Dhirendra Nath Das.
6. Mr. N. Dutta, learned senior counsel by relying upon the judgment of the Supreme Court in Khedu Mohton & Ors. Vs. State of Bihar reported in (1970) 2 SCC 450 refers to Section 431 of the Cr.P.C. of 1898 which inter alia provides that every appeal under Section 417 or 417(A) of the Cr.P.C. of 1898 shall finally abate on the death of the accused and every other appeal under the concerned chapter, except for an appeal for a sentence of fine, shall finally abate on the death of the appellant.
7. A situation for a decision had arisen before the Supreme Court in Khedu Mohton (supra) as to whether upon the death of the appellant any appeal filed before the High Court under Section 417(3) of the Cr.P.C. of 1898 stood abated.
8. In the above circumstance, the Supreme Court in paragraph-7 of the said judgment rendered in Khedu Mohton (supra) had held as follows:-
"7. In view of our above conclusion, it is unnecessary for us to consider the question of law canvassed by Mr. E. C. A- agarwal, learned Counsel for the appellant. But as the same has been argued we shall go into it. The appeal before the High Court was brought after obtaining special leave under sub-Section. (3) of Section 417, Cr.P.C. It appears that during the pendency of the appeal, the appellant died. It was contended before the High Court and that contention was repeated before us that the appeal abated in view of the death of the appellant. This contention was rejected by the High Court. In support of that contention, Counsel for the appellant relied on two decisions one of Allahabad High Court in Nehal Ahmad v. Ramji and the other of Madras High Court in Thothan and anr. v. Murugan and ors.(2) The first decision has no application to the facts of the present case. That was an appeal under Section 476-B of the, Cr.P.C. It is true that the Madras decision was rendered in an appeal under Section 417 (3) of the Cr. P.C. In our opinion, the learned single judge of the Madras High Court erred in thinking that the decision of the Allahabad High Court lent any support to his conclusion that an appeal filed under Section 417(3), Cr. P.C. abates on the death of the appellant. The question of abatement of criminal appeals is de
