ORDER : Order on Impleadment Application No.10 of 2020 1. Heard Sri Dinesh Kumar Yadav, learned counsel for the appellant, Sri Ajay Kumar Pandey, learned counsel for accused respondents and learned A.G.A. for the State. 2. As per the death certificate annexed as Annexure No.1 to the affidavit filed in support of the impleadment application the appellant-Raj Narayan Singh son of Late Hardutt died on 20.12.2018. By this application, the son of the deceased appellant namely Yashwant Singh is seeking impleadment as appellant in place of Raj Narayan Singh to prosecute the present criminal appeal. The affidavit filed in support of the present impleadment application was sworned by him on 18.11.2019 and the present application was filed on 17.01.2020. In effect this is an application for substitution of Yashwant Singh son of Late Raj Narayan Singh, who was appellant in the present appeal. Obviously, this application was not filed immediately after death of the appellant. 3. At this stage, it would be relevant to take note of Sections 372 and 394 Cr.P.C. which are quoted as under:- "Section 372:-No appeal to lie, unless otherwise provided. No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or any other law for the time being in force. Section 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." 4. A coordinate Bench (of which one of us was a member) of this Court has considered the 'proviso' to Section 372 Cr.P.C. as well as provisions of Section 394 Cr.P.C. in detail in the judgement of Prithvi Singh Vs. State of U.P. and Ors. 2022 (8) ADJ 29 (DB), wherein it was held that the appeal filed under 'proviso' to Section 372 Cr.P.C. would stand abated in case of death of appellant 5. State of U.P. and Ors. 2022 (8) ADJ 29 (DB), wherein it was held that the appeal filed under 'proviso' to Section 372 Cr.P.C. would stand abated in case of death of appellant 5. In Prithvi Singh (Supra) in para 5 this Court has taken into account the relevant provisions of Code of Criminal Procedure, 1898, its relevant amendment by Act No. 26 of 1955, Code of Criminal Procedure, 1973 with its statements of objects and reasons, relevant provisions including Amendment Act 5 of 2009 whereby 'Proviso' to Section 372 Cr.P.C. was added. 6. The law on the Section 417 Cr.P.C., 1898, judgment of Hon'ble Supreme Court in Khedu Mohton and Ors. Vs. State of Bihar; 1971 AIR 66 SC, subsequent judgements of various High Courts on Section 372 (with proviso) i.e. after 2009 Amendment have been considered in Prithvi Singh (Supra). Para 29, 30, 31, 32, 34, 37, 38, 39, 40, 41, 42, 43, 46 and 48 of the aforesaid judgment are quoted as under:- "29. It is, therefore, clear that as per the golden rule of interpretation, this ''proviso' is a substantive enactment and it is not merely excepting something out of, or qualifying what was excepting or goes before. Therefore, by adding the ''proviso' in Section 372 of Cr.P.C. 1973 by this amendment, a right has been created in favour of the victim. 30. At this stage, it would be appropriate to take note of the definition of ''victim' as inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) by adding sub-section (wa) in Section 2, which provides that "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'. 31. It is also a settled law, as interpreted by the Supreme Court and various High Courts, that victim does not include each and every person or merely an informant, who has lodged a first information report and the term ''victim' has to be interpreted as per the definition noted above. We need not go deep into the same. 31. It is also a settled law, as interpreted by the Supreme Court and various High Courts, that victim does not include each and every person or merely an informant, who has lodged a first information report and the term ''victim' has to be interpreted as per the definition noted above. We need not go deep into the same. Therefore, from a perusal of the scheme of the right to appeal against acquittal, as reflected from a reading of the above noted provisions, it is clear that initially the right to appeal was exclusively with the State Government and it was not available even to the complainant, even if a public servant was a complainant, leave alone a private individual or any other agency. 32. As has already been noticed, Section 417 of Cr.P.C. 1898 provided for appeal on behalf of the government in cases of acquittal and no other person was authorized to file appeal and that this provision has undergone a major change in Cr.P.C. 1973, Section 378 whereof provides for appeal in cases of acquittal. The term local government has been substituted with several individual agencies to which we are not concerned, however, this is to be noted that even the right of a public servant to file appeal, who is a complainant, has been made limited to be exercised within six months and private complainant can come forward with an application for grant of special leave to appeal from the order of acquittal, which has been limited to sixty days only. Therefore, clearly, the legislature was always conscious of the extent to which the right to appeal is to be provided to different agencies, where they appear in a different capacities. 34. Now coming to the provisions regarding abatement of appeals, we may note that vide Section 431 of Cr.P.C. it was provided that every appeal under Section 417 (appeal on behalf of government in case of acquittal) 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 finally abate on the death of the appellant. This provision has also undergone a substantial change in Cr.P.C. 1973. Sub-section (1) of Section 394 of Cr.P.C. 1973 provides that every appeal under Section 377 or Section 388 shall finally abate on the death of the accused. 37. This provision has also undergone a substantial change in Cr.P.C. 1973. Sub-section (1) of Section 394 of Cr.P.C. 1973 provides that every appeal under Section 377 or Section 388 shall finally abate on the death of the accused. 37. The second part of Section 431 of Cr.P.C. 1898, broadly speaking, has now been changed as significantly a ''proviso' has been added in subsection (2) and an explanation has also been added to the entire Section 394 of Cr.P.C. 1973. We may take note of the ''proviso' to Section 394 Cr.P.C. once again, which provides 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'. The explanation to Section 394 provides that in this section ''near relative' means a parent, spouse, lineal descendant, brother or sister. In the ''proviso' added to sub-section (2) in Section 394 of Cr.P.C. 1973 it is important to note that it is in respect of an appeal against conviction and sentence of death or of imprisonment and not in respect of an appeal against acquittal. It further provides that if the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days from 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. Thus, clearly this proviso to sub-section (2) of Section 394 Cr.P.C. 1973, is only in respect of appeal against conviction and sentence of death or of imprisonment and only near relatives as provided in the explanation, may apply for leave to continue the appeal within thirty days from the death of the appellant, and if leave is granted, the appeal shall not abate. Why this provision was added has been taken note of by the Supreme Court in Jugal Kishore Khetawat vs. State of West Bengal (2011) 11 SCC 502 wherein it was held that this is to provide a machinery whereby the children or the members of the family of a convicted person who dies during the appeal, could challenge the conviction and get rid of the odium attaching to the family due to such conviction. Paragraph 7 of the aforesaid judgment is quoted as under:- "7. Such a proviso has been added in the following circumstances: An amendment to Section 431 was suggested in the Bill introduced in the Parliament by a private Member, Shri K.V. Raghunatha Reddy. The main object of the amendment was to provide a machinery whereby the children or the members of the family of a convicted person who dies during the appeal could challenge the conviction and get rid of the odium attaching to the family as a result of the conviction. The Law Commission of India by its Forty-First Report (September 1969, Vol. I, pp. 279-81) found the proposed amendment "eminently sound" and recommended that the amendment be made with certain modifications. Accordingly Section 394 of the Code of Criminal Procedure, 1973 has made the said proviso." (emphasis supplied) 38. Now, insofar as the appeal filed against acquittal by the victim under Section 372 of Cr.P.C. 1973 is concerned, it would be covered by the plain words of sub-section (2) of Section 394 Cr.P.C. 1973, which provides that every other appeal under this Chapter (except an appeal from sentence of fine) shall finally abate on the death of the appellant. In sub-section (2) an exception has been carved out in respect of an appeal from a sentence of fine, obviously for the reason that it involves monetary reasons to the benefit of the victim. 39. As already noticed, a substantive right to prefer an appeal against acquittal was added by the amending Act No. 5 of 2009 by adding a ''proviso' to Section 372 of Cr.P.C. 1973. However, significantly, no amendment was made in Section 394 Cr.P.C. 1973, which provides for abatement of appeals. 40. As already noticed, the golden rule of interpretation is that if the meaning of words of a statute are plain, effect must be given irrespective of the consequences. However, significantly, no amendment was made in Section 394 Cr.P.C. 1973, which provides for abatement of appeals. 40. As already noticed, the golden rule of interpretation is that if the meaning of words of a statute are plain, effect must be given irrespective of the consequences. We may refer to the judgments of the Supreme Court in cases of Nelson Motis (supra), Kanailal Sur (supra), Vijay Anand Maharaj (supra), Gwalior Rayan Silk (supra), Raghunath Rai Bareja (supra). 41. In the light of Shah Bhojraj (supra) and Khedu Mohton (supra) it may be argued that once an appeal against 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 it or is unable to prosecute it for one reason or the other. In Motiram Ghelabhai (supra) and Sundaram Pillai (supra), the Supreme Court laid down that the ''proviso' added to Section 372 Cr.P.C. 1973 is a fresh enactment giving a substantive right to file appeal against acquittal to the victim [as defined in Section 2 (wa)], which was added by the same amending act, being Act No. 5 of 2009. 42. As observed in P. Laxmi Devi (supra) and Super Cassettes Industries (supra) it is a settled law that the right to file an appeal is a statutory right and it can be circumscribed by condition / conditions of the statute granting it. In this view of the settled law, it is extremely important to note that at the time when the judgment in Khedu Mohton (supra) was passed by the Supreme Court, the proviso to Section 372 of Cr.P.C. 1973 was not in existence and in Cr.P.C. 1973 provision of abatement of appeals was substantially changed in comparison to Section 431 Cr.P.C. 1898. 43. In an appeal against conviction, the right of near relatives to get themselves substituted within a limited period was protected so that they may come forward to prosecute the appeal for the purpose of removing the stigma on the family. However, no such right of a victim was protected. No right to substitute the victim has been granted under Section 394 Cr.P.C. 1973. It is also pertinent to note that sub-section (2) of Section 394 Cr.P.C. 1973 provides that every other appeal shall abate on the death of the appellant. 46. However, no such right of a victim was protected. No right to substitute the victim has been granted under Section 394 Cr.P.C. 1973. It is also pertinent to note that sub-section (2) of Section 394 Cr.P.C. 1973 provides that every other appeal shall abate on the death of the appellant. 46. This clearly indicates that the Supreme Court has also held that the right to file appeal under Section 372 Cr.P.C. 1973, as added by proviso by amending Act No. 5 of 2009, is different from the right to file appeal in case of acquittal as provided under Section 378 Cr.P.C. 1973. A clear distinction, therefore, has been noted by the Supreme Court between Section 372 Cr.P.C. 1973 and Section 378 Cr.P.C. 1973. It may also be noticed that there is also a difference in the definition of ''victim' as provided under Section 2(wa) of Cr.P.C. 1973 and of the word ''complainant' as defined under Section 2(d) of Cr.P.C. 1973. 47. Itis, therefore, clear that in view of the amended provision of the Code of Criminal Procedure, the judgment of the Supreme Court in case of Khedu Mohton (supra) would not be applicable now and is, thus, clearly distinguishable. 48. There is yet another aspect of the matter. Insofar as the rules of interpretation are concerned, there is a rule which provides that ''regard to consequences' are also be taken into consideration while interpreting any statutory provision. However, as already noticed in the preceding paragraphs, this rule has no application when the words are acceptable to only one meaning and no alternate consideration is reasonably open. There can be no dispute that the provisions of sub-section (2) of Section 394 Cr.P.C. 1973 are absolutely plain in their language and must be given effect to irrespective of the consequences. Therefore, the view that in case the appeal filed by the victim is not abated on the death of the appellant, the consequences may be serious, would not be applicable in the present case." (Emphasis supplied) 7. There is yet another aspect of the matter. The concept of substitution and impleadment is foreign to the criminal law. Appeal is the creation of statute. General provisions of appeal in criminal law are governed by the Code of Criminal Procedure. In Civil Law provisions of Code of Civil Procedure are applicable which also provides for substitution as well as for impleadment. The concept of substitution and impleadment is foreign to the criminal law. Appeal is the creation of statute. General provisions of appeal in criminal law are governed by the Code of Criminal Procedure. In Civil Law provisions of Code of Civil Procedure are applicable which also provides for substitution as well as for impleadment. However, there are no such provisions in the Criminal Procedure Code. Regarding the issue involved herein the only exception that may be noted in Section 394 (2) proviso and Explanation to the Section, which, as already considered in Prithvi Singh (Supra), does not cover appeal against acquittal. 8. Therefore, we find that the appellant cannot be substituted by his son even by filing an application filed as 'impleadment' application as done in the present appeal, or say that even if, the application has been filed as 'impleadment' application and not as 'substitution' application. In other words, neither substitution application, nor impleadment application would be maintainable in case of death of the appellant in appeal against acquittal filed under Section 372 Cr.P.C. 9. In Prithvi Singh (Supra) it was also considered that as provided by Section 394 Cr.P.C. even in a case of appeal against conviction only a limited right has been given for the purpose of filing substitution which too could have been filed only within 30 days and not beyond that. Whereas this is an appeal against acquittal wherein the aforesaid provision is not at all attracted. 10. While considering the judgement of Prithvi Singh (supra), we have rejected one substitution application filed under similar circumstance in Criminal Misc. Application U/S 372 Cr.P.C. (Leave to Appeal) No. 15 of 2017 (Jai Prasad Singh Vs. State of U.P. and Ors.) as not maintainable. Consequently, the delay condonation application filed in support of the substitution application was also rejected and the appeal was dismissed as abated. 11. Accordingly, the impleadment application filed by son of the deceased appellant stands rejected as not maintainable. In Appeal 1. Since the appellant in the present case had died consequently, for the discussions made herein above, the appeal stands dismissed as abated.