AFR

Reserved

In Chamber

Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C

(LEAVE TO APPEAL) No. - 329 of 2012

Applicant :- Prithvi Singh

Opposite Party :- State of U.P. and Others

Counsel for Applicant :- Rajul Bhargava

Counsel for Opposite Party :- Govt. Advocate

Hon'ble Vivek Kumar Birla,J.

Hon'ble Subhash Vidyarthi,J.

(Delivered by Hon’ble 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

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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)

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417. Appeal in case of acquittal- (1) Subject to the provisions of sub-

section (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 pas