HADIS MIA Vs. STATE OF ASSAM

JUDGEMENT

(1.) This revision petition arises from the judgment and order dated 14 June 1982 passed by the learned Additional Sessions Judge Sibsagar at Jorhat in Criminal Appeal No.11(3) of 1981 affirming the conviction and sentences passed by the learned Judicial Magistrate of the 1st Class Golaghat in G. R. Case No. 1262 of 1979.

(2.) The case of the prosecution was that, on 5 August 1979, Hadis Mia and his three sons, namely, Arju alia Azimuddin, Shamsul and Majla assaulted Ali Hussain with the pieces of wood. On trial, the learned Magistrate convicted the accused Hadis and Arju under S. 325, IPC and sentenced them to R.I. for 6 months with fine of Rs. 500/-each. The learned Magistrate also convicted Shamsul and Majla under S. 323. I.P.C. and sentenced them to S.I. for 2 months each. On appeal the learned Sessions Judge affirmed the conviction and sentences, but the learned Sessions Judge released the accused Azimuddin, Shamsul and Majla under the Probation of Offenders Act. Being aggrieved by the conviction and sentence, the accused Hadis filed this revision petition.

(3.) During the pendency of this petition, the accused petitioner Hadis died on 30 January 1985 i.e. about 2 years ago. No one of his near relatives has been substituted for the deceased till date. The question then is, - Can this revision petition be entertained after the death of the accused ? S. 394 Cr.P.C, provides abatement of appeals on the death of the accused. But the Code has not provided abatement of revision petitions in case of the death of the accused. A reading of S. 401, Cr.P.C, shows that it does not create any right in favour of the litigant and that no person has any right to be heard, but no order under S.401, Cr.P.C, shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by his pleader in his own defence. In the absence of the statutory provision and in view of the provisions of S. 401, in my judgment, provisions of abatement of appeals shall not apply to the revision petitions, and revision petitions shall not abate on the death of the accused. Therefore, the High Court has to exercise its revisional jurisdiction vested in it, and the High Court is not bound in a revision petition to order substitution in every case. If the petition has been entertained, it is to be disposed of whether the accused or the petitioner is alive or dead. However, no order shall be made to the prejudice of the accused or other person unless he had been given an opportunity of being heard, as already stated.