PARVATI DEVI Vs. STATE

JUDGEMENT

(1.) The appellant in this acquittal appeal having passed away, the question is whether the appeal can be said to have abated under Section 394 of Code of Civil Procedure. Crl.M. No. 14/2002 filed by Rakesh Kumar, the son of the deceased appellant, under Section 482 of the Code of Criminal Procedure seeks an order directing his substitution in place of the deceased. The respondents have strenuously opposed that prayer inter alia on the ground that there is no provision for substitution of one complainant or appellant by another in criminal cases under the Code of Criminal Procedure. It is additionally contended that the appeal itself was not maintainable at the instance of the appellant as the case, out of which the same arose, was a Sessions case no matter the same was instituted on a private complaint. The application seeking special leave to appeal as also the accompanying appeal therefore deserve dismissal according to the respondents.

(2.) Appearing for the applicant Rakesh Kumar, Sh. R.N. Mittal fairly conceded that the prayer for substitution of the applicant in place of the deceased appellant was not supported by any enabling provision in the Code of Criminal Procedure. He, however, argued that the appeal arose out of a case instituted on a private complaint. Such an appeal could, under Section 394 of the Code, abate only on the death of the accused and not otherwise. So long as that contingency did not arise, the appeal had to be heard and disposed of on its merits for which purpose the court had ample powers to permit the applicant to prosecute the matter in this court even in the absence of a formal order of substitution in his favour. Reliance in support was placed by Mr. Mittal upon a single bench decision of this Court in Dharam Yash Dev V/s Late Sh. Sanjay Gandhi The Punjab Law Reporter Vol. LXXXIII-1981 Page 80 and the decision of the Supreme Court in Ashwin Nanubhai Vyas V/s State of Maharashtra and Another 1967 Criminal Law Journal 943 and Khedu Mohton and Others V/s State of Bihar AIR 1971 SC 66.

(3.) Mr. Kalra, counsel appearing for respondent No. 2 and 3, on the other hand, argued that even when the proceedings had initially come to be instituted on a private complaint, the case was eventually committed to the Sessions and the prosecution conducted by the Public Prosecutor. It was submitted that the provisions of Section 209 and 225 of the Cr.PC sufficiently indicated that in cases triable by the Sessions Court, the commitment of the case would signify that the same no longer remained a case instituted on a private complaint. An order of committal, according to Mr. Kalra, results in an automatic conversion of the case instituted on private complaint into a State case not only for purposes of conduct of the prosecution before the Sessions Court but for all other purposes including the filing and maintainability of appeals against the judgment delivered by the court of Sessions. Viewed thus, the present application seeking grant of special leave as also the accompanying appeal were not maintainable at the instance of the deceased complainant. Her demise during the pendency of the appeal would, therefore, be legally inconsequential. The absence of a provision for substitution of any person in place of the deceased appellant was an additional reason why the appeal and the applications filed in the same ought to be dismissed.