Point of Law : It is a settled law that the right to file an appeal is a statutory right and it can be circumscribed by condition / conditions of the statute granting it.

JUDGMENT :

V.K. Birla, J.

1. This appeal has been filed against the order dated 7.7.2012 passed by the Additional Sessions Judge, Court No. 5, Hathras acquitting the respondent nos. 2 and 3 in Session Trial No. 81 of 2002 (State vs. Bhoop Singh and others) arising out of Case Crime No. 185 of 1994, under Sections 302/34 IPC, Police Station Sadabad, District Hathras.

2. Present appeal has been filed under Section 372 Cr.P.C. with an application to grant leave to appeal, which according to the judgment of Hon’ble Apex Court is not required for the purpose of filing appeal against acquittal by the victim under Section 372 Cr.P.C.

3. On 31.5.2017, as learned counsel for the appellant had been elevated as Judge of this Court (since retired), notice was issued to the appellant-Prithvi Singh through Chief Judicial Magistrate, Hathras to engage another counsel returnable within four weeks. The compliance report dated 26.6.2017 submitted by the CJM, Hathras and the office report dated 25.7.2017 indicates that the appellant is dead. His death certificate issued on 9.6.2017 indicating that he died on 1.12.2015 has also been annexed with the compliance report.

4. No one has come forward to claim that he shall be prosecuting this appeal. Under such circumstances, the question that arises in the present case is as to whether the appeal filed under Section 372 Cr.P.C. by the victim as per proviso as inserted by the Code of Criminal Procedure (Amendment Act No. 5 of 2019) Section 29 dated 31.12.2009 would abate on the death of the appellant or not in view of the provisions of Section 394 (2) Cr.P.C., which provides that every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant.

5. Before proceeding further it would be beneficial to extract relevant provisions, which are as under:-

“The Code of Criminal Procedure, 1898 (Act V of 1898). (The amended provisions of Cr.P.C. as existing prior to coming into force of Code of Criminal Procedure, 1973)

Part VII

Of Appeal, Reference and Revision

Chapter XXXI

404. Unless otherwise provided, no appeal to lie-No appeal shall lie from any judgment or order of a Criminal Court except as provided for this Code or by any other law for the time being in force.

417. Appeal on behalf of Government in case of acquittal-The Local Government may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.

431. Abatement of appeals-Every appeal under section 417 shall finally abate on the death of the accused, and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant.

(emphasis supplied)

Criminal Procedure Code (Act V of 1898) (As Amended by Act (XXVI of 1955)

417. Appeal in case of acquittal-(1) Subject to the provisions of subsection (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Established constituted under the Delhi Special Police Establishment Act, 1946 (XXXV of 1946), the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal.

(3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(4) No application under sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal.

(5) If,