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2019 DIGILAW 1379 (PAT)

Baleshwar Dubey v. State of Bihar

2019-10-15

HEMANT KUMAR SRIVASTAVA, PRABHAT KUMAR SINGH

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PRABHAT KUMAR SINGH, J.:–Heard learned counsel for the appellant, the State as well as learned counsel for the private respondents. 2. The instant application has been filed on behalf of the appellant under proviso to section 372 of the Code of Criminal Procedure (hereinafter referred to as ‘the Cr.P.C) for setting aside the judgment and order dated 24.7.2017, passed by the learned Additional Sessions Judge-IV, Kaimur at Bhabua, whereby and whereunder the learned Court has acquitted respondents no. 2 to 4 for the offence punishable under sections 147, 148, 149, 302 and 379 of the Indian Penal Code as well as under section 27 of the Arms Act. 3. It is contended on behalf of the learned counsel appearing for the appellant that respondent no.3 has died during pendency of the appeal, as such, it stood abated against respondent no.3 vide order of this Court dated 14.8.2019 on the ground of his death. It is further contended that since the sole appellant has also died during pendency of the appeal at pre-admission stage, he may be permitted to file substitution petition in order to substitute the legal heirs/representatives in place of the deceased sole appellant. 4. Submission of the learned counsel for the appellant is opposed by learned counsel appearing for the private respondents submitting that there is no provision for substitution in the Cr.P.C.. He further submitted that the present appeal is not maintainable as the same has abated in view of death of the sole appellant in preadmission stage of the appeal itself. 5. From the rival submissions of the parties, two issues come up for consideration which are as follows:— (a) Whether legal heirs/representatives of the deceased appellant can be substituted in his place in the appeal filed against judgment of acquittal? (b) Whether an appeal, filed under proviso to section 372 of the Cr.P.C., will abate on account of death of the sole appellant? 6. (b) Whether an appeal, filed under proviso to section 372 of the Cr.P.C., will abate on account of death of the sole appellant? 6. So far as first issue that whether legal heirs/representatives of the deceased appellant can be substituted in his place in the appeal filed against judgment of acquittal, the same is no more res integra and must be rejected outright as there is no provision in the Cr.P.C. for substitution in place of a deceased party, unlike suits and appeals under the Civil Procedure Code where abatement is not upon death but only by omission to substitute heirs and legal representatives within the time prescribed by law. Reference can be made to the decision of the Hon’ble Apex Court in the case of Gajapati Rao Vs. State of Andhra Pradesh, reported in AIR 1964 SC 1645 , wherein it has been held as follows:— “… an appeal is not a heritable asset and does not devolve as a matter of course upon an executor or heir. Even under the civil law an express provision is required for substitution of another person in the place of the person deceased before the appeal can be continued and this is against subject to whether the cause of action survives or not.” 7. With respect to the second issue that whether an appeal, filed under proviso to section 372 of the Cr.P.C., will abate on account of death of the sole appellant, learned counsel appearing for the appellant submits that the appeal will not abate due to death of the sole appellant. He further submits that the death of the appellant, in pre-admission stage of the appeal filed against the acquittal, will not terminate the proceedings and the Appellate Court cannot close or dismiss the appeal as abated. He further submits that bare perusal of section 394 of the Cr.P.C. shows that once an appeal against the acquittal is filed before the Appellate Court, it becomes the duty of the Appellate Court to decide the same in accordance with law. In support of the aforesaid claim, learned counsel relies on the decisions of the Hon’ble Apex Court in case of Khedu Mohton and others Vs. State of Bihar, AIR 1971 Supreme Court 66; Harnam Singh Vs. In support of the aforesaid claim, learned counsel relies on the decisions of the Hon’ble Apex Court in case of Khedu Mohton and others Vs. State of Bihar, AIR 1971 Supreme Court 66; Harnam Singh Vs. the State of Himachal Pradesh, AIR 1975 Supreme Court 236 as well as the decision of a Division Bench of this Court in case of Sheojanam Prasad and another Vs. Sumant Prasad Jain and others, AIR 1971 Patna 124 (V 58 C 28). 8. On the other hand, learned counsel for the private respondents submits that from bare perusal of sub section (2) of section 394 of the Cr.P.C., it is manifest that every other appeal under Chapter XXXI, except an appeal from a sentence of fine, finally abates on the death of the appellant. It is further submitted as the instant appeal has been preferred under proviso to section 372 of the Cr.P.C. and moreover the sole appellant has died at the pre-admission stage itself, as such, this appeal stands abated. 9. In view of aforesaid rival submissions, it would be relevant to quote section 394 of the Cr.P.C., which reads as hereunder:— “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.” 10. Section 394 Cr.P.C., as reads, is in two parts. The earlier part relates to an appeal against order of acquittal under section 377 or section 378 of the Cr.P.C. and the second part refers to other appeals under Chapter XXXI except from a sentence of fine. Section 394 Cr.P.C., as reads, is in two parts. The earlier part relates to an appeal against order of acquittal under section 377 or section 378 of the Cr.P.C. and the second part refers to other appeals under Chapter XXXI except from a sentence of fine. The later part of the section has to be read on reference to the first part and as such the words every other appeal in the second part of the section clearly meant every appeal other than those covered by the earlier part of the section, namely, those under section 377 or 378 of the Cr.P.C. The second part clearly provides that all other appeal under Chapter XXXI shall abate on the death of the appellant which includes the present appeal which has been preferred under proviso to section 372 of the Cr.P.C. 11. Reliance placed by learned counsel for the appellant as noted above, has no application in the facts and circumstances of the instant case as the same is based of different facts. In the cases of Khedu Moohton (supra) and Harnam Singh (supra), appeals were filed under section 417 of the old Cr.P.C. which is now equivalent to sections 378 of the Code of Criminal Procedure, 1973. Similarly, in the case of Sheojanam Prasad Singh (supra) the appeal was filed against composite order of sentence of imprisonment and fine. 12. Here, it is pertinent to mention that proviso to section 372 of the Cr.P.C was inserted by Act 5 of 2009 with effect from 31.12.2009, which gives the victim a right to prefer an appeal against adverse order passed by the trial Court, but no corresponding amendment was made by the Legislature in section 394 of the Cr.P.C. In absence of the same, it is very difficult for this Court to add something which is not in the Cr.P.C. itself and from perusal of sub section (2) of section 394 Cr.P.C., as exists today, it is apparent that all appeals include appeal under proviso to section 372 Cr.P.C. Hence, all the decisions cited by the appellant are based in the peculiar facts and circumstances of the case and distinguishable with the present case. 13. 13. In the case in hand, the appeal was filed under proviso to section 372 of the Cr.P.C. and the appellant has died at pre-admission stage itself and as such in view of sub-section (2) of section 394 of the Cr.P.C., I find substance in the submissions made on behalf of the private respondents that the instant appeal stands abated in view of the fact that the sole appellant died in the pre-admission stage itself since there is no provision of substitution of legal heirs/representatives. 14. The proviso of section 394 of the Cr.P.C. is plain and in unambiguous terms. Thereafter, no question of interpretation arises. It is very much clear that the question of abatement of the criminal appeal is dealt with in section 394 of the Cr.P.C. only and from perusal of this section, it is clear that the appeal under section 377 or 378 of the Cr.P.C. can only abate on the death of the accused and not otherwise and every other appeals under Chapter XXXI (save and except appeal from a sentence of fine) shall finally abate on the death of the appellant. 15. Regard being had to the facts and circumstances of the case as well as the contentions of the rival parties discussed above as also the provisions of law existing today, I am of the firm conviction that this criminal appeal will stand abated in view of the fact that the appellant has died much before admission of the appeal itself and there is no provision of substitution of his legal heirs/representatives. 16. Accordingly, the criminal appeal stands dismissed. HEMANT KUMAR SRIVASTAVA, J.:–I agree.