HEADMASTER Vs. SANDHYA DAS

JUDGEMENT

(1.) I have heard Mr. A.K. Bhowmik, learned senior counsel for the applicant and Mr. B. Das, learned senior counsel for the respondents at length.

(2.) THIS is an application under Sub -section (4) of Section 378 of the Code of Criminal Procedure seeking special leave to file appeal against acquittal ordered on 24.6.2004 by Additional Sessions Judge, West, Tripura, Agartala in Criminal Appeal No. 47 of 1 993.

(3.) MR . Bhowmik submits that though the accused died during pendency of the appeal before the appellate court, the legal heirs having been allowed to continue the appeal, which ended in acquittal, there is no bar for the complainant -petitioner to file appeal under Section 378 Cr.P.C. and the provision of Section 394 Cr.P.C. regarding abatement shall not apply. His further submission is that as the appeal before the a Additional Sessions Judge did not abate because of the proviso to Sub -section (2) of Section 394 Cr.P.C. under which the legal heirs were allowed to continue the appeal, the question of abatement for presenting an appeal before the High Court against the Order of acquittal by the appellate court cannot be a ground to refuse special leave to appeal. . Mr. Das, on the other hand, submits that the special leave being for the purpose of presenting an appeal under Section 378 Cr.P.C, it automatically comes within the mischief of Section 394 Cr.P.C, which clearly provides that every appeal under Section 377 or Section 378 Cr.P.C shall finally abate on the death of the accused. 5. Admittedly, the accused died during pendency of the appeal filed by him against the conviction and sentence imposed on him by the trial court and as per the provision of Section 394(1) Cr.P.C, the appeal should have abated, but the proviso permits only the near relatives to continue the appeal with leave of the appellate court. Section 394 Cr.P.C. and the relevant proviso read as under ; -