A. PASAYAT, J. ( 1 ) PETITIONER calls in question legality of order passed by learned Additional Sessions Judge, Bhubaneswar refusing her prayer for leave to continue the appeal filed by her husband late Nanda Kishore Dash (hereinafter referred to as the Tdeceased-appellant' ). According to learned Additional Sessions Judge, appeal abated on the death of the appellant as provided in sub-section (1) of section 394, Code of Criminal Procedure, 1973 (in short, TCr. P. C. T ). ( 2 ) UNDISPUTED background facts, in short, are as follows: Deceased-appellant was convicted by the learned Additional Chief Judicial Magistrate, Bhubaneswar in S. P. E. Case No. 3 of 1985, and sentenced to undergo rigorous imprisonment for three years and pay a fine of Rs. 1,000/-, in default of payment of fine to undergo further simple imprisonment for six months. Deceased-appellant challenged judgment of conviction and sentence in Criminal Appeal No. 23 of 1991, and the same was pending in the Court of Additional Sessions Judge, Bhubaneswar. During pendency of the appeal, deceased-appellant breathed his last on 11. 5. 1992. An application was filed by the petitioner for leave to continue the appeal. Same was rejected on the ground that every appeal under sections 377 and 378, Cr. P. C. abates on the death of the appellant, as provided in sub-section (1) of-section 394, Cr. P. C. ( 3 ) ACCORDING to Mr. Dhalsamanta, learned counsel for petitioner, conclusions of learned Additional Sessions Judge are absolutely untenable, because the appeal filed by the Deceased appellant was not one under Section 377 or Sec. 378, Criminal Procedure Code and therefore, subsection (1) of section 394 had no application. Learned counsel for the opposite parties supported. the order. ( 4 ) SECTION 394, Cr. P. C. corresponds to section 431 of the Code of Criminal Procedure, 1898 (in short, old Cr. P. C. ). It deals with abatement of appeals. The Law Commission in its 41st Report recommended a machinery by which the children or other members of the family of a convicted person dying during appeal could test the conviction and get rid of the odium, which would otherwise attach to them. It was felt that law should give the right to continue the appeal to near relatives. The Law Commission in its 41st Report recommended a machinery by which the children or other members of the family of a convicted person dying during appeal could test the conviction and get rid of the odium, which would otherwise attach to them. It was felt that law should give the right to continue the appeal to near relatives. It was also recommended that a time-limit should be given by which the near relative should seek leave of the Appellate Court to continue the appeal. Accordingly, clause 404 of the Bill provided that an appeal against conviction and sentence of imprisonment will not abate on the appellant's death if his near relatives obtain the leave of Court to continue the appeal. However, the proviso and the Explanation to section 394 are newly added. Old section 431 has been bifurcated, the first part is reproduced in subsection (1) and the second part in sub-section (2 ). Every appeal under section 377 or section 378 abates on the death of the accused. An appeal under section 377 is one which is filed by the State Government against a sentence, appeal under section 378 is one in case of an acquittal. The appeal filed by the deceased did not fall under either of the categories. Every other appeal in Chapter XXIX also abates in the same way except following exceptions, namely, (i) an appeal against acquittal, by a complainant under section 378 (4); (ii) an appeal from a sentence of fine; and (iii) an appeal against a conviction and sentence of death or imprisonment. The second exception was introduced in the old Criminal Procedure Code. The object was to prevent the estate of the deceased appellant from being damaged. However, any of the near relatives of the deceased desirous of continuing the appeal is required to apply to the Appellate Court for leave within thirty days of the death of the appellant. After the leave is granted, the appeal does not abate. Near relativet is defined in the Explanation to mean a present, spouse, real descendant, brother or sister. ( 5 ) SUB-SECTION (1) of section 394 dealing as it does with appeals against orders of acquittal, naturally provides that such appeals must necessarily abate, because the accused person has passed beyond the jurisdiction of the Court. Near relativet is defined in the Explanation to mean a present, spouse, real descendant, brother or sister. ( 5 ) SUB-SECTION (1) of section 394 dealing as it does with appeals against orders of acquittal, naturally provides that such appeals must necessarily abate, because the accused person has passed beyond the jurisdiction of the Court. Subsection (2) deals with appeals by convicted persons or by a person who has been deprived of any property, or who has been ordered to furnish security etc, and lays down that such appeals shall finally abate on the death of the appellant except appeals from a sentence of fine. ( 6 ) IF leave is granted to a near relative of category mentioned in the Explanation, appeal against conviction and sentence of imprisonment would not abate. For getting leave to continue the appeal, near relative who wants to continue the appeal has to apply to the Appellate Court with in thirty days of the death of the appellant. However, on proper and satisfactory explanation for the delay caused in applying for leave to continue the appeal, delay may be condoned. ( 7 ) THE learned Additional Sessions Judge has not kept relevant aspects in view while dealing with the application. Impugned order dated 15. 4. 1993 is accordingly vacated. Matter shall be considered afresh keeping in view the guidelines indicated above. The application is accordingly disposed of. Application disposed of.