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2011 DIGILAW 545 (UTT)

BAL KRISHAN JOSHI v. STATE OF UTTARANCHAL

2011-08-30

SERVESH KUMAR GUPTA

body2011
JUDGMENT Hon’ble Servesh Kumar Gupta, J. 1. This Criminal Misc. Leave Application no. 1019 of 2011 has been moved by Smt. Jiwanti Devi, who is wife of revisionist Sri Bal Krishan Joshi (new deceased), to substitute herself as revisionist for contesting this revision. 2. It is pertinent to mention that this revision was filed against the order of acquittal dated 16.07.2003 passed by Additional Sessions Judge/1st FTC, Udham Singh Nagar in Sessions Trial No. 380 of 2002. 3. Sri Bal Krishan Joshi after filing of this revision has died on 18.08.2010. Learned counsel for the applicant – Smt. Jiwanti Devi has relied upon the judgment of Karnataka High Court in the case of P.R. Anjanappa Vs. M/s Yurej Agencies Pvt. Ltd. reported in 2004 Cri L.J. 2565 wherein the Karnataka High Court has held that if the convict died during the pendency of the appeal, then the appeal is abated only when the appellant was convicted with a sentence of imprisonment only. If he was convicted with a sentence of imprisonment and a fine; or with a fine only, then the appeal is not abated because the fine is recoverable from this legal heirs. 4. It was also held in the said case that these provisions of Section 394 Cr.P.C. can well be applied to the matter of revision notwithstanding that there is no specific mention of the applicability of these provisions to the revisions because Section 394 Cr.P.C. envisages “abatement of appeals”. Here in the instant case, learned counsel for the respondent has also raised the similar contention that these provisions of Section 394 Cr.P.C. are not applicable to the revision because it is titled as “abatement of appeal”. I do hereby concur with the view as expressed by Karnataka High Court in the case named above so this Court holds that question of succession can similarly be placed under Section 394 Cr.P.C. in the matter of revision also. 5. Learned counsel for the appellant – Smt. Jiwanti Devi has also relied upon the judgment of Himachal Pradesh High Court in the case of Mohinder Dutt Sharma Vs. Bhagat Ram and another reported in 2002 Cri. L.J. 529 wherein the Himachal Pradesh High Court has held that in the matters of Section 401, 403, 482 Cr.P.C. where the complainant/informant dies then the substitution of legal representatives can well be allowed during the pendency of the revision. Bhagat Ram and another reported in 2002 Cri. L.J. 529 wherein the Himachal Pradesh High Court has held that in the matters of Section 401, 403, 482 Cr.P.C. where the complainant/informant dies then the substitution of legal representatives can well be allowed during the pendency of the revision. The High Court, in exercise of inherent power, is competent to implead the legal representatives of the deceased complainant and afford him opportunity of being heard in the interest of justice. 6. Learned counsel for the applicant has also relied upon the judgment of Division Bench of Kerala High Court in the case of K. Chathukutty and others Vs. K.S. Prasanna Venkitesan reported in 2007 Cri L.J. 1120 wherein the Kerala High Court has held that where the appeal is pending before the High Court and the complainant dies, then the complainant’s legal heirs can well be impleaded as additional appellants. And above all, the Hon’ble Apex Court in the case of Balasaheb K. Thackeray and another Vs. Venkat and another reported in (2006) 2 SCC (Cri) 630 has opined that if the complainant dies, then under section 302 Cr.P.C. his legal heirs can well be permitted, in perspective of the facts of the case, to deal with the matter. So in view of the above, this Court do fully agree with the above views and hereby allow this application of substitution. Smt. Jiwanti Devi is permitted, thus, to contest the revision. 7. List this matter after two weeks for final hearing. Meanwhile, learned counsel for the applicant shall file the amended memo of parties.