Bhageerathi Amma v. Jeevankumar — 1981 DIGILAW 282 (KER)

Judgment :- Criminal Appeal No. 344 of 1979 is filed by the complainant in C.C. No. 207 of 1978 of the Sub-Divisional Magistrate's Court, Kanjirappilly, against the acquittal of the accused of offences punishable under S. 500 of I.P.C. The appeal was presented under S. 378(4) of Criminal P.C., 1973. 2. During the pendency of the appeal the complainant-appellant died. His wife and children filed the present petition, for getting themselves impleaded in the place of the appellant as his legal representatives and for permitting them to prosecute the appeal. The application is opposed. 3. The contention put forward is that the appeal has abated consequent on the death of the appellant and that the petitioners have no locus standi to continue the appeal. 4. The relevant provision regarding abatement of appeals is contained in Section 394 of Criminal P.C. 1973 which reads :- "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. Explanation. - In this section, "near relative" means a parent, spouse, lineal descendant, brother or sister." Section 377 deals with appeals by the State Government against sentence. Section 378 deals with appeals from orders of acquittal. Appeals against orders of acquittal under S. 378 include those presented by the Public Prosecutor under sub-sections (1) and (2) of that section and those presented by the complainant under sub-section (4) thereof, after obtaining special leave. These appeals and those filed by an accused person against his conviction except those mentioned in the proviso to S. 394(2) would abate on the death of the accused. The section does not specifically provide for cases where the complainant dies after presentation of an appeal under sub-section (4) of S. 378. The point for consideration is whether such an appeal would abate on the death of the appellant. The section does not specifically provide for cases where the complainant dies after presentation of an appeal under sub-section (4) of S. 378. The point for consideration is whether such an appeal would abate on the death of the appellant. A similar question came up for consideration in Khedu Mohton v. State of Bihar, AIR 1971 SC 66 : (1971 Cri LJ 20), a case which arose under S. 431 of Criminal P.C. 1898 (to be referred to hereinafter as the old Code). The appeal therein was filed under S. 417(3) of that Code. S. 431 proceeded as follows: "Every appeal under section 411-A, sub-section (2) or Section 417 shall finally abate on the death of the accused and every other appeal under this Chapter (except from sentence of fine) shall finally abate on the death of the appellant." S. 411-A(2) and S. 417 of the old Code dealt with appeals from orders of acquittal. Interpreting S. 431, the Supreme Court observed as follows : "From this section it is clear that an appeal under S. 417 can only abate on the death of the accused and not otherwise. Once an appeal against an acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact that the appellant does not choose to prosecute it or is unable to prosecute it for one reason or the other." 5. Though it was argued on behalf of the respondent that there is difference between S. 431 of the old Code and Section 494 of the present Code, I do not see much of a difference which would warrant a different interpretation. Evidently S. 394(1) has no application to cases of death of the complainant in an appeal presented under S. 378(4). The words "every other appeal under this Chapter" exclude appeals filed under sections 377 and 378 of the Code. The result is that an appeal filed under S. 378(4) does not abate on the death of the complainant. 6. A person who is defamed by another has two remedies open to him. He may either launch a civil action for damages against the person responsible for the defamation or he may launch a criminal prosecution. The result is that an appeal filed under S. 378(4) does not abate on the death of the complainant. 6. A person who is defamed by another has two remedies open to him. He may either launch a civil action for damages against the person responsible for the defamation or he may launch a criminal prosecution. While the civil remedy ceases with the death of the defamed person, under Explanation 1 to S. 499 of I.P.C. an imputation against a deceased person of such a character as would harm the reputation of that person if living and is intended to he hurtful to the feelings of his family or other relatives would amount to defamation treated as an offence it is a public wrong and is indictable even after the death of the person defamed. True under S. 199 of Criminal P.C. which corresponds to S. 198 of the old Code, no Court is to take cognisance of an offence of defamation except upon a complaint made by some person aggrieved by the offence. In U Tin Maung v. King, AIR 1941 Rang 202 : (1941 (42) Cri LJ 801), the question arose whether in the case of an offence punishable under S. 500 of I.P.C. the complaint would abate on the death of the complainant. It was held that the complainant's death did not abate the criminal proceedings and that the Magistrate under S. 259 of the old Code (which corresponds to Section 249 of the present Code) had the discretion either to discharge the accused or continue the trial. It was further held that S. 198 only limited the power of the Court to initial cognizance of the offence; once the Court had seisin of the case there was nothing to prevent the Court proceeding with it. 7. The above decision has been referred to in Ashwin Nanubhai v. State of Maharashtra, AIR 1967 SC 983 : (1967 Cri LJ 943), a case of committal enquiry in respect of offences punishable under sections 493 and 496 of I.P.C. in respect of which S. 198 of the old Code was applicable. The Supreme Court considered the impact of S. 198 and observed : "The section creates a bar which has to be removed before cognizance is taken. Once the bar is removed, because the proper person has filed the complaint, the section works itself out. The Supreme Court considered the impact of S. 198 and observed : "The section creates a bar which has to be removed before cognizance is taken. Once the bar is removed, because the proper person has filed the complaint, the section works itself out. If any other restriction was also there the Code would have said so" On the question of abatement, the Supreme Court held as follows : "What the Presidency Magistrate has done is to allow the mother to act as the complainant to continue the prosecution. This power was undoubtedly possessed by the Presidency Magistrate, because of S. 495 of the Code by which Courts are empowered (with some exceptions) to authorise the conduct of the prosecution by any person. The words 'any person' would indubitably include the mother of the complainant in a case like this. Section 198 itself contemplates that a complaint may be made by a person other than the person aggrieved and there seems to us no valid reason why in such a serious case we should hold that the death of the complainant puts an end to the prosecution." 8. In C. M. Stephen v. John Manjuran, 1970 Ker LT 545, this Court had occasion to consider the question whether in a private complaint alleging an offence of defamation if the complainant dies pending trial, his brother could continue the prosecution. Moidu J., after a review of the case law pointed out that there was no specific provision (in the old Code) to the effect that a complaint would abate on the death of the complainant and therefore the brother of the deceased was entitled to continue the prosecution. 9. It is to be noted in this connection that an offence under S. 500 is triable as a summons case. S. 256 of Criminal P.C. provides for cases of non-appearance of or death of the complainant. Under sub-section (1) if the complainant does not appear, Magistrate may either acquit the accused or adjourn the hearing of the case to some other day. Sub-section (2) states that the said provision would apply to cases where the non-appearance of the complainant is due to his death. Under sub-section (1) if the complainant does not appear, Magistrate may either acquit the accused or adjourn the hearing of the case to some other day. Sub-section (2) states that the said provision would apply to cases where the non-appearance of the complainant is due to his death. In the absence of specific provision in the case of appeals under S. 378(4) there is no reason why the said principle should not be extended to a case of death of the appellant pending disposal of the appeal. 10. What the petitioners want is to have them impleaded as appellants in the appeal. There is however no provision in the Code for impleading or substituting a person in the place of the appellant or the complainant. But S. 302, which corresponds to S. 495 of the old Code, provides for permission to conduct prosecution. It is, therefore, within the power of the Court to permit any person to prosecute an appeal which is not liable to abatement on the death of the appellant. The petitioners are the wife and children of the original complainant. They are persons interested in seeing that the fair name of the deceased remains unsullied and the reputation of their family is kept intact. It is only proper that they are allowed to prosecute the appeal in spite of the death of the appellant. I do so. Petition allowed.