STATE OF GUJARAT Vs. SHANTABEN S DAVE

JUDGEMENT

(1.) PRESENT Criminal Appeal, being Criminal Appeal No.1347 of 1993, under Section 378 of the Criminal Procedure Code, is by the appellant - State of Gujarat, challenging the judgment and order of acquittal dated 30.07.1993, passed by the learned Special Judge (ACB), Ahmedabad, in Special (ACB) Case No.12 of 1993, acquitting the respondent - original accused No.1, for the offences punishable under Sections 13(1)(d) (i) and (ii) and under Section 13(2) of the Prevention of Corruption Act. It is reported and so stated in Criminal Misc. Application No. 11782 of 2007 in Criminal Appeal No. 1022 of 1993 with Criminal Appeal No. 1347 of 1993 that during the pendency of the Appeal, original accused No.1 - respondent in Criminal Appeal No. 1347 of 1993 has expired on 26.10.2006. The Death Certificate of the accused No.1 Shantaben is produced on record of Criminal Misc. Application No. 11782 of 2007 and Shri Anandjiwala, learned Advocate, appearing on behalf of the original accused No.1 has stated that he will produce on record the xerox copy of the Death Certificate of said Shantaben on record of the present Appeal also. The same may be done within a week from today.

(2.) SECTION 394 of the Cr.P.C. provides that every Appeal under Sections 377 or 378 shall finally abate on the death of the accused. As per sub -section (2) of Section 394 'every other appeal under Chapter XXIX (except an appeal from a sentence of fine) shall finally abate on the death of the appellant'. However, as per proviso to Section 394, where an Appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendencey 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 be abated. Thus, right to continue the Appeal has been provided to the near relatives of the accused, who has been convicted and sentenced to death or of imprisonment. Such a situation is not in the present Appeal. Present Appeal is under Section 378 of the Cr.P.C. by the State against the judgment and order of acquittal. Considering Section 394 of the Cr.P.C., on death of the accused, every Appeal under Sections 377 or 378 shall finally abate. Final abatement means, there is no discretion with the Court and even there is no question of revival. It appears that the intention of the legislature is to put an end and there is no question or scope of revival as the Appeal is to be disposed of as abated finally. However, at the same time, when an Appeal results in abatement on account of death of the respondent/accused, there is no decision on merits confirming the judgment and order of acquittal. In an appeal against the order of acquittal, on the death of the accused, considering Section 394 of the Cr.P.C., the Court has thereafter no jurisdiction to decide; consider the Appeal and the judgment and order impugned in the Appeal on merits. The Court has no other discretion but has to dismiss the Appeal as abated on the death of the accused in an Appeal under Section 378 of the Cr.P.C. against the judgment and order of acquittal.

(3.) UNDER the circumstances, as the respondent original accused No.1 has expired on 26.10.2006 during the pendency of the present Appeal, considering provisions of Section 394 of the Cr.P.C., this Appeal is ordered to be abated.