Legal heirs can pursue revision applications after the applicant's death if interested; lack of interest leads to abatement without applicable provision.

1. This revision application has been preferred by the applicant (since deceased) challenging his conviction under S.380 of the Indian Penal Code (for short 'the IPC') and sentence of RI for 3 months and fine of Rs.500/-, in default of payment of fine to further undergo SI for one month.

2. In course of hearing of this revision application on 10-4-2013 the applicant's counsel informed the Court that the applicant has died. A report was called for to ascertain the fact of death of the applicant. The concerned Station House Officer submitted a report along with the death certificate of the applicant to the effect that the applicant Suresh Tiwari has died on 19-3-2010.

3. On 18-10-2013 learned counsel for the applicant prayed for time to bring the legal heirs of the deceased applicant on record, however, no such application has been filed.

4. When the matter was called for hearing today, learned counsel for the applicant would submit that the legal heirs of the applicant have not contacted him, therefore, it appears that they are not interested in prosecuting the revision application. However, he would submit that the revision application would not abate because no such provision akin to S.394 of the Code of Criminal Procedure, 1973 (for short 'the Code') has been made applicable to the revision application.

5. Per contra, learned counsel appearing for the State would submit that even if no express provision is made in the Code for abatement of revision application, when legal heirs are not interested in prosecuting the revision application the same deserves to be dismissed as abated.

6. The question fallen for consideration is - whether in absence of any express provision regarding abatement of revision application, like the one under S.394 of the Code, which provides for abatement of appeals, the revision applications would also abate by applying the same principle ?

7. S.394 of the Code provides thus :
394. Abatement of appeals.--(1) Every appeal under S.377 or S.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.

8. S.401 of the Code deals with the High Court's powers of revision. Sub-section (1) thereof provides that the High Court, while exercising revisory power may also exercise powers conferred on a Court of Appeal by S.386, S.389, S.390 and S.391 or on a Court of Session by S.307 of the Code. Thus, provisions contained under S.394 of the Code concerning abatement of appeals have not been made applicable to the Court exercising revisory power. Thus, there is no express provision in the Code for dismissal of the revision application as abated on the death of the applicant.

9. In Bondada Gajapathi Rao v. State of Andhra Pradesh , 1964 KHC 607 : AIR 1964 SC 1645 : 1964 (7) SCR 251 : 1964 (2) CriLJ 598 the Supreme Court after referring its earlier judgment rendered in Pranab Kumar Mitra v. State of West Bengal and Another , 1959 KHC 463 : AIR 1959 SC 144 : 1959 Supp (1) SCR 63 : 1959 CriLJ 256, has held that revision petitions and some appeals from sentences of fine might be continued by his legal representatives on the death of the accused pending the proceeding. The Supreme Court further held that the provisions of S.431 of the old Code (which is now cont