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2019 DIGILAW 102 (MP)

SHIVRAJ SINGH CHAUHAN v. RAJENDRA KUMAR GUPTA

2019-01-30

ANAND PATHAK

body2019
JUDGMENT : 1. Shri Abhishek Bindal, learned counsel for the appellant. Shri V. D. Sharma, learned counsel for respondent No. 1. Shri R. S. Yadav, learned PP for respondent No. 2/State. 2. At the outset learned counsel for respondent No. 1 referred death certificate of respondent No. 1-Rajendra Kumar Gupta and submitted that in view of the fact of death of respondent No. 1 now nothing survives in appeal to adjudicate upon because instant appeal was under section 378(4) of Criminal Procedure Code and because of death of respondent/accused as per the provisions contained in section 394(1) of Criminal Procedure Code appeal stands abated finally. 3. Learned counsel for the appellant could not dispute the fact about the death of respondent No. 1 -Rajendra Kumar Gupta. He pressed for hearing and submits the appeal is still maintainable. 4. Heard learned counsel for the parties at length and perused the documents and relevant provisions. 5. Section 394 of Criminal Procedure Code deals in respect of abatement of appeal which is reproduced for ready reference : 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. 6. Sub-section (1) of section 394 of Criminal Procedure Code refers that every appeal under section 377 (appeal by the State Government against sentence) and 378 (appeal in case of acquittal) can be preferred by the State Government for inadequacy of sentence or by the complainant other than the police complaint if acquittal has been recorded in the criminal case before the trial Court. 7. Here, the acquittal was recorded by the trial Court in the private complaint filed by the appellant, therefore, the appeal had been preferred under section 378(4) of Criminal Procedure Code hence the instant appeal comes under the ambit of sub-section (1) of section 394 of Criminal Procedure Code. 7. Here, the acquittal was recorded by the trial Court in the private complaint filed by the appellant, therefore, the appeal had been preferred under section 378(4) of Criminal Procedure Code hence the instant appeal comes under the ambit of sub-section (1) of section 394 of Criminal Procedure Code. The Hon’ble Apex Court in the case of Bondada Gajapathi Rao vs. State of Andhra Pradesh, AIR 1964 SC 1645 , in the case of Harnam Singh vs. State of Himachal Pradesh, 1974 SCC (Cri) 951, in the case of Shri Lallubhai Jogibhai Patel vs. Union of India and others, (1981) 2 SCC 427 and in the case of State of Andhra Pradesh vs. S. Narasimha Kumar and others, (2006) 3 SCC (Cri) 54 dealt with the provisions as contained in section 394 of Criminal Procedure Code and its applicability. 8. Considering the totality of circumstances and the undisputed facts regarding death of respondent No. 1-Rajendra Kumar Gupta, nothing survives in the appeal. Hence the appeal stands abated in respect of respondent No. 1-Rajendra Kumar Gupta, thus, dismissed as abated.