MEENA KUMARI DASH Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioner calls in question legality of order passed by learned Additional Sessions Judge, Bhubaneswar refusing her prayer for leave to continue the appeal filed by her husband late Nanda Kishore Dash (hereinafter referred to as the Tdeceased-appellant'). According to learned Additional Sessions Judge, appeal abated on the death of the appellant as provided in sub-section (1) of section 394, Code of Criminal Procedure, 1973 (in short, TCr. P.C.T).

(2.) Undisputed background facts, in short, are as follows: Deceased-appellant was convicted by the learned Additional Chief Judicial Magistrate, Bhubaneswar in S.P.E. Case No.3 of 1985, and sentenced to undergo rigorous imprisonment for three years and pay a fine of Rs. 1,000/-, in default of payment of fine to undergo further simple imprisonment for six months. Deceased-appellant challenged judgment of conviction and sentence in Criminal Appeal No. 23 of 1991, and the same was pending in the Court of Additional Sessions Judge, Bhubaneswar. During pendency of the appeal, deceased-appellant breathed his last on 11.5.1992. An application was filed by the petitioner for leave to continue the appeal. Same was rejected on the ground that every appeal under sections 377 and 378, Cr. P.C. abates on the death of the appellant, as provided in sub-section (1) of-section 394, Cr. P.C.

(3.) According to Mr. Dhalsamanta, learned counsel for petitioner, conclusions of learned Additional Sessions Judge are absolutely untenable, because the appeal filed by the Deceased appellant was not one under Section 377 or Sec. 378, Criminal Procedure Code and therefore, subsection (1) of section 394 had no application. Learned counsel for the opposite parties supported .the order.