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CASE NO.:

Appeal (crl.) 1446-1450 of 2004

PETITIONER:

State of A.P.

RESPONDENT:

S. Narasimha Kumar & Ors.

DATE OF JUDGMENT: 13/07/2006

BENCH:

ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT:

J U D G M E N T

CRIMINAL MISC. PETITION NO. 2335 OF 2005

IN .

CRIMINAL APPEAL NOS. 1446-1450 OF 2004

ARIJIT PASAYAT, J.

This petition has been filed by wife of one D.V.

Chandrasekhar who was accused no.3 in C.C. No.53/1990

and was respondent no.3 in the appeal. It is to be noted that

the appeal has been filed against the judgment rendered by a

learned Single Judge of the Andhra Pradesh High Court

disposing of several Criminal Revision petitions.

All those revision petitions related to the judgment of the

Court of the VII Additional Munsif Magistrate, Guntur in C.C.

No.53 of 1990. The accused persons are described as A-1, A-

2, A-3 etc. A-1 was charged with offences punishable under

Sections 381, 411 and 120-B of the Indian Penal Code, 1860

(in short ’IPC’); A-2 to A-11 and A-15 were charged with

offences punishable under Sections 120-B and 414 I.P.C.

A-12 to A-14 were charged with offence punishable under

Section 411 I.P.C. A-4 died during the trial of the case. The

case against A-10 was separated. Through its Judgment

dated 26.11.2000 the trial Court convicted the above said

accused persons for the offences alleged against them and

awarded sentences of various descriptions.

The High Court set aside the conviction and sentence

imposed in respect of the concerned respondents. In the

appeal as noted above, the deceased D.V. Chandrasekhar who

was A-3 is the respondent in the Criminal Appeal relating to

Criminal Revision no.1424 of 2001. The applicant has filed the

present appeal stating that on the death of the said

respondent the appeal abated so far he is concerned. The

logic of Section 394 of the Code of Criminal Procedure, 1973

(in short ’Cr.P.C.’) was pressed into service. Learned counsel

for the State on the other hand submitted that Section 394

Cr.P.C. does not govern the case of an appeal by special leave

before this Court.

The aforesaid D.V. Chandrasekhar died on 15.1.2004

and leave has been granted on 6.2.2004.

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It is conceded by learned counsel for the parties that

neither in the Cr.P.C. nor in the Supreme Court Rules there is

any provision dealing with such a situation. Section 394

Cr.P.C. reads as follows:

"394. Abatement of appeals. \026 (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.

Explanation \026 In this section, "near

relative" means a parent, spouse, lineal

descendant, brother or sister."

It is to be noted that Section 394 Cr.P.C. corresponds to

Section 431 of the Code of Criminal Procedure, 1898 (in short

the ’Old Code’).

In Bondada Gajapathi Rao v. State of Andhra Pradesh

(AIR 1964 SC 1645) three-judge Bench of this Court was

dealing with the situation as to whether appeal by special

leave against sentence of imprisonment abates on the death of

the accused/appellant. Three separate judgments were

rendered by the Hon’ble Judges. The principles as can be

culled out from the said decision are as follows: (though

rendered in the context of the Ol