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2019 DIGILAW 526 (GAU)

Malaya Das v. State of Assam

2019-04-30

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. K. Sarma, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor and Mr. A. Hussain, learned counsel for the accused respondent. 2. We have requested Mr. N. Dutta, learned senior counsel for having his view as to whether on his death, the victim appellant on whose behalf the present appeal has been admitted, can be substituted by his wife for the purpose of carrying forward the appeal. 3. This interlocutory application has been preferred by Smti. Malaya Das, wife of late Dhirendra Nath Das inter alia praying that the applicant be substituted/impleaded as the appellant in the accompanying Criminal Appeal 97/2017, in a situation where in exercise of the powers under the proviso to Section 372 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) late Dhirendra Nath Das had preferred the appeal against the acquittal of the accused respondent by the judgment and order dated 10.02.2016 of the learned Additional Sessions Judge, Bajali, Pathsala in Sessions Case No. 185/2015. 4. Mr. A. Hussain, learned counsel for the accused respondents has raised an objection that there being no provision for substitution under the Cr.P.C. the present application is to be rejected with a further submission that under the provision of Section 394(2) of the Cr.P.C., the appeal stands abated on the death of the appellant. 5. Along with Mr. K. Sarma, learned counsel for the applicant, we have also heard Mr. N. Dutta, learned senior counsel who was requested to assist the Court for his submission on the aforesaid legal issue as to whether the applicant can be substituted for the deceased appellant and secondly whether the appeal stood abated on the death of the appellant Dhirendra Nath Das. 6. Mr. N. Dutta, learned senior counsel by relying upon the judgment of the Supreme Court in Khedu Mohton & Ors. Vs. State of Bihar reported in (1970) 2 SCC 450 refers to Section 431 of the Cr.P.C. of 1898 which inter alia provides that every appeal under Section 417 or 417(A) of the Cr.P.C. of 1898 shall finally abate on the death of the accused and every other appeal under the concerned chapter, except for an appeal for a sentence of fine, shall finally abate on the death of the appellant. 7. 7. A situation for a decision had arisen before the Supreme Court in Khedu Mohton (supra) as to whether upon the death of the appellant any appeal filed before the High Court under Section 417(3) of the Cr.P.C. of 1898 stood abated. 8. In the above circumstance, the Supreme Court in paragraph-7 of the said judgment rendered in Khedu Mohton (supra) had held as follows:- "7. In view of our above conclusion, it is unnecessary for us to consider the question of law canvassed by Mr. E. C. A- agarwal, learned Counsel for the appellant. But as the same has been argued we shall go into it. The appeal before the High Court was brought after obtaining special leave under sub-Section. (3) of Section 417, Cr.P.C. It appears that during the pendency of the appeal, the appellant died. It was contended before the High Court and that contention was repeated before us that the appeal abated in view of the death of the appellant. This contention was rejected by the High Court. In support of that contention, Counsel for the appellant relied on two decisions one of Allahabad High Court in Nehal Ahmad v. Ramji and the other of Madras High Court in Thothan and anr. v. Murugan and ors.(2) The first decision has no application to the facts of the present case. That was an appeal under Section 476-B of the, Cr.P.C. It is true that the Madras decision was rendered in an appeal under Section 417 (3) of the Cr. P.C. In our opinion, the learned single judge of the Madras High Court erred in thinking that the decision of the Allahabad High Court lent any support to his conclusion that an appeal filed under Section 417(3), Cr. P.C. abates on the death of the appellant. The question of abatement of criminal appeals is dealt with by Section 431 of Criminal Procedure Code. That section reads: "Every appeal under Section 411-A, subsection (2) or Section 417 shall finally abate on the death of the accused and every other appeal under this Chapter (except an appeal from a sentence of fine) shall abate on the death of the appellant." From this section it is clear that an appeal under Section 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 the appellant either does not choose to prosecute it or is unable to prosecute it for one reason or the other. The argument that while introducing sub-section (3) to Section 417 Cr. P.C.. the Parliament overlooked the provisions contained in Section 431, does not deserve consideration. The language of Section 431 is plain and unambiguous. Therefore no question of interpretation of that provision arises." 9. We take note that the Supreme Court was very clear in its view that the opinion formed by the learned Single Judge of the Madras High Court by following a decision of the Allahabad High Court that an appeal filed under Section 417(3) of the Cr.P.C. 1898 stood abated on the death of the appellant therein was erroneous. 10. Having said so, the Supreme Court clearly provided that although from Section 431 Cr.P.C. of 1898 it is clear that an appeal under Section 417 can only abate on the death of the accused and not otherwise, but 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 either does not choose to prosecute the appeal or is unable to prosecute it for one reason or the other. The proposition laid down by the Supreme Court is explicitly clear that once an appeal against acquittal has been entertained by the High Court, it is the duty of the High Court to decide the same on its merit irrespective of the fact whether the appellant continues to prosecute to the appeal or for any other reason is unable to prosecute with. The said proposition can also be relied upon to take a view that in an appeal against acquittal if the appellant dies in the meantime, the same on its own also cannot be a reason for the appeal to be abated and it is the duty of the High Court to decide the appeal on its own merit irrespective of the appellant being not there. 11. 11. As the provision of Section 394 of the Cr.P.C. 1973 is pari materia with that of Section 431 of the Cr.P.C. of 1898, we are of the view that the same proposition of law as laid down by the Supreme Court would also be applicable in respect of the provisions of Section 394 Cr.P.C. of 1973. Accordingly, we are unable to accept the contention of the accused respondents that the accompanying appeal preferred by the victim under the proviso to Section 372 of Cr.P.C. of 1973 stands abated on the death of the victim appellant. 12. The other question involved as to whether the present applicant who is the wife of the earlier victim appellant as well as mother of the deceased can be substituted in place of the victim appellant who had died in the meantime. 13. The concept of victim is defined under Section 2(wa) of the Code of Criminal Procedure 1973 which is as follows:- "2 (wa) 'victim' means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression 'victim' includes his or her guardian or legal heir." 14. A reading of the definition of victim makes it clear that any person who had suffered any loss or injury caused by the reason of the act or omission for which the accused person has been charged would be a victim and the same shall also include his or her guardian or legal heir. The accompanying appeal was preferred by the father of the deceased late Dhirendra Nath Das for the reason that he was a person who suffered loss and injury due to the act on the part of the accused person in causing death to his son and by the same analogy the present applicant being the mother of the deceased, in our view would also be a victim as per the definition of victim in 2(wa) of the Cr.P.C. 15. As the appeal against acquittal under the provisio to Section 372 of the Cr.P.C. of 1973 had not abated as concluded hereinabove and the appeal continues to remain on board we are of the view that without addressing the issue as to whether the appellant on his death can be substituted under the provision of Code of Criminal Procedure of 1973, the present applicant being also a victim under Section 2(wa) of the Code of Criminal Procedure can be allowed to further prosecute the appeal which otherwise has not abated. 16. In doing so, we take note of the power of the High Court under Section 482 of the Cr.P.C. of 1973 which inter alia provides that nothing in the Code shall be deemed to limit or affect the inherent power of the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. As the proviso to Section 372 of the Cr.P.C. has given a right to a victim to prefer an appeal against any such order of acquittal of the accused and in a situation where the victim mother of the deceased desires to further prosecute and participate in the appeal against such acquittal, we are of the view that to allow the victim mother to participate the appeal would be in the interest of justice. In this respect, reference is also made to a Division Bench judgment of the Allahabad High Court in Rajeev Kumar Vs. State of U.P. reported in 2008 SCC 620 wherein, in paragraph 14 and 15 it has been held as under:- "14. Coming to the contention of Sri Jain, learned senior counsel, on behalf of the petitioners that no compensation can be awarded under section 482 Cr.P.C. we are of the opinion that the said contention is wholly unmerited. Section 482 Cr.P.C. starts with non obstante clause as the words are "Nothing in this Code shall be deemed to limit or effect the inherent powers of the High Court to make such orders as may be necessary..........or to secure ends of justice" 15. We lay the emphasis on the words to "secure ends of justice". The terminology used in the statute is of unfathomable limits. We lay the emphasis on the words to "secure ends of justice". The terminology used in the statute is of unfathomable limits. It is neither circumscribed by any limitation nor can it be interpreted in a limited manner. To secure the ends of justice is much more than to decide cases on legal points. The non obstante clause further makes it clear that the inherent power, which has been preserved with the High Court, is of enormous magnitude. No provision in Criminal Procedure Code can limit exercise of such power. We fail to understand the reason behind making such an argument by Sri Jain as has been referred to above as ex debito justice include power to grant compensation as well. Sri Jain has failed to convince us and bring home his said submission to a logical and moreso when Section 357 and 358 Cr.P.C. confers power on the Courts to order for payment of compensation. Section 358 Cr.P.C. goes to the extent of laying down that compensation can be granted for a groundless arrest. We are absolutely clear that to secure the ends of justice the High Court possesses the power to order for compensation and therefore repel the contention of Sri Jain on behalf of the petitioners." 17. We are in respectful agreement with the view expressed by the Allahabad High Court in examining the power under Section 482 to the extent that it would be the inherent power of the High Court to make such order as may be necessary to secure the ends of justice and further that the non-obstante clause in Section 482 makes it even more clear that the inherent power which has been preserved with the High Court is of enormous magnitude. 18. In view of the above, we are of the view that ends of justice would be met if the applicant victim mother be allowed to participate and continue with the accompanying criminal appeal against the judgment and order dated 10.02.2016 of the learned Sessions Judge in Sessions Case No. 185/2015 acquitting the accused respondent of the charges under Section 304(B)/302/34 IPC and is accordingly allowed to do so. I.A. stands disposed of in the above terms.