ORDER :

Order on Impleadment Application No.10 of 2020

1. Heard Sri Dinesh Kumar Yadav, learned counsel for the appellant, Sri Ajay Kumar Pandey, learned counsel for accused respondents and learned A.G.A. for the State.

2. As per the death certificate annexed as Annexure No.1 to the affidavit filed in support of the impleadment application the appellant-Raj Narayan Singh son of Late Hardutt died on 20.12.2018. By this application, the son of the deceased appellant namely Yashwant Singh is seeking impleadment as appellant in place of Raj Narayan Singh to prosecute the present criminal appeal. The affidavit filed in support of the present impleadment application was sworned by him on 18.11.2019 and the present application was filed on 17.01.2020. In effect this is an application for substitution of Yashwant Singh son of Late Raj Narayan Singh, who was appellant in the present appeal. Obviously, this application was not filed immediately after death of the appellant.

3. At this stage, it would be relevant to take note of Sections 372 and 394 Cr.P.C. which are quoted as under:-

"Section 372:-No appeal to lie, unless otherwise provided. No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or any other law for the time being in force.

Section 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."

4. A coordinate Bench (of which one of us was a member) of this Court has considered the 'proviso' to Section 372 Cr.P.C. as well as provisions of Section 394 Cr.P.C. in detail in the judgement of Prithvi Singh Vs. State of U.P. and Ors. 2022 (8) ADJ 29 (DB), wherein it was held that the appeal filed under 'proviso' to Section 372 Cr.P.C. would stand abated in case of death of appellant

5. In Prithvi Singh (Supra) in para 5 this Court has taken into account the relevant provisions of Code of Criminal Procedure, 1898, its relevant amendment by Act No. 26 of 1955, Code of Criminal Procedure, 1973 with its statements of objects and reasons, relevant provisions including Amendment Act 5 of 2009 whereby 'Proviso' to Section 372 Cr.P.C. was added.

6. The law on the Section 417 Cr.P.C., 1898, judgment of Hon'ble Supreme Court in Khedu Mohton and Ors. Vs. State of Bihar; 1971 AIR 66 SC, subsequent judgements of various High Courts on Section 372 (with proviso) i.e. after 2009 Amendment have been considered in Prithvi Singh (Supra). Para 29, 30, 31, 32, 34, 37, 38, 39, 40, 41, 42, 43, 46 and 48 of the aforesaid judgment are quoted as under:-

"29. It is, therefore, clear that as per the golden rule of interpretation, this ''proviso' is a substantive enactment and it is not merely excepting something out of, or qualifying what was excepting or goes before. Therefore, by adding the ''proviso' in Section 372 of Cr.P.C. 1973 by this amendment, a right has been created in favour of the victim.

30. At this stage, it would be appropriate to take note of the definition of ''victim' as inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) by adding sub-section (wa) in Section 2, which provides that "victim" means ''a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir'.

31. It is also a settled law, as interpreted by the Supreme Court and various High Courts, that victim does not include eac