SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
NATIONAL LAW INSTITUTE UNIVERSITY,
BHOPAL
CRIMINAL PROCEDURE CODE
VI SEMESTER
MID TERM PROJECT
ABATEMENT OF APPEALS AND ITS IMPACT UNDER CRIMINAL
PROCEDURE CODE
Submitted by: Somya Yadav
Roll Number: 2018 B.A. LL.B. 37
III Year B.A. LL.B. (Hons.)
Submitted to: Ms. Divya Salim
ASST. PROFESSOR
Page | 1
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
ACKNOWLEDGEMENT
This project has been made possible by the unconditional support of many people. I would
like to acknowledge and extend by heartfelt gratitude to Asst. Prof. Divya Salim Singh for
guiding me throughout the development of this project into a coherent whole by providing
helpful insights and sharing brilliant expertise. I would also like to thank the officials of the
NLIU Library, Gyan Mandir, for helping me to find the appropriate research material for this
project. I am deeply indebted to my parents, seniors and friends for all the moral support and
encouragement.
Page | 2
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
Table of Contents
ACKNOWLEDGEMENT.........................................................................................................2
REVIEW OF LITERATURE.................................................................................................4
LIST OF CASES REFFERED...............................................................................................4
STATEMENT OF PROBLEM..............................................................................................5
OBJECTIVES.........................................................................................................................5
HYPOTHESIS........................................................................................................................5
RESEARCH QUESTIONS....................................................................................................5
RESEARCH METHODOLOGY...........................................................................................6
Introduction................................................................................................................................6
ABATEMENT IN SECTION 394 OF CRPC............................................................................7
OLD CODE........................................................................................................................7
NEW CODE.......................................................................................................................7
Section 394.........................................................................................................................7
Exception to Section 394(2)-.............................................................................................9
JUDICIAL PRONOUNCEMENTS.........................................................................................11
CASE I..................................................................................................................................11
Ramesan (Dead) Through Lr. Girija A vs The State Of Kerala...........................................11
Material Facts...................................................................................................................11
Issues................................................................................................................................12
Arguments........................................................................................................................12
Interpretation of Law and Judgement..............................................................................12
CASE II................................................................................................................................14
Material Facts...................................................................................................................14
Issues................................................................................................................................14
Arguments........................................................................................................................14
Interpretation of Law and Judgement..............................................................................15
Page | 3
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
CASE III...............................................................................................................................16
Material Facts...................................................................................................................16
Issues................................................................................................................................16
Interpretation of Law and Judgement..............................................................................17
Conclusions and Suggestions...................................................................................................18
Bibliography.............................................................................................................................20
Page | 4
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
REVIEW OF LITERATURE
1. The Code of Criminal Procedure, Ratanlal & Dhirajlal Sarkar, LexisNexis, 23th
ed., 2020
“Ratanlal & Dhirajlal’s Criminal Procedure Code is one of the country’s most relied
on and respected titles and has been in print for almost a century. Significant changes
in the well- established rules pertaining to law of crime and developments made have
been referred at appropriate places in this work. Relevant statutory changes have been
incorporated, and important decisions by apex courts in India, that have either altered
the direction of legal principles or thrown new light on existing principles, have been
carefully examined.”
2. Criminal Procedure, C.K. Takwani and M.C. Thakker, LexisNexis, 4th ed., 2014
“The authors discuss with clarity and precision, the principles of criminal
jurisprudence which are the core of criminal procedure. This fourth edition examines
in detail the amendments introduced by the Criminal Law (Amendment) Act, 2013.
Landmark cases of the Supreme Court, Privy Council and High Courts have been
critically analysed. Several new topics have been added in this edition and existing
ones further examined.”
LIST OF CASES REFFERED
1. Ramesan (Dead) Through Lr. Girija A vs The State Of Kerala
2. State of Andhra Pradesh v. Narasimha Kumar
3. Girija Prasad (deceased) v. State of Madhya Pradesh
4. Harnam Singh Vs. The State of Himachal Pradesh
5. Lakshmi Shanker Srivastava Vs. State (Delhi Administration
6. Shankar Pd. Ghose (Dead) vs State Of Bihar & Anr
7. V. Kameswar Rao and Anr. v. State (A.C.B. Police, Karnool District, Andhra
Pradesh)
8. Jugal Kishore Khetawat vs State Of West Bengal
9. P.S.R. Sadhanantham vs. Arunachalam
Page | 5
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
STATEMENT OF PROBLEM
If in a criminal appeal, the appellant dies, do the proceedings continue to take place or is
the appeal abated (dismissed) is the question which this project will be dealing with.
OBJECTIVES
1. To analyse the section pertaining to the abatement of criminal appeals.
2. To understand the various conditions in which criminal appeals can be abated by
the court.
3. To study the judicial pronouncements regarding the concept of abatement of
criminal appeals.
HYPOTHESIS
Under the Criminal Procedure Code, the concept of abatement of appeals is well
defined under Section 394 wherein it is stated that in cases where the appellant passes
away, the appeal is done away with, except in cases where the appeal was filed
against a sentence of fine.
RESEARCH QUESTIONS
1. What is meant by abatement of appeals?
2. In which cases can the courts abate the proceedings relating to criminal matters?
3. What are the various landmark judgments pertaining to the topic?
Page | 6
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
RESEARCH METHODOLOGY
The researcher has adopted doctrinal method of research.
Introduction
The course of criminal equity has some genuine outcomes on a person's life, fundamentally
on the right to life and individual freedom. Every single organisation made and run by people
is inclined to frailty, subsequently, this applies to judgements delivered by courts too.
Resultantly, there ought to be explicit arrangements set up to examine the orders of lower
courts to hinder the extent of unsuccessful outcome of equity. Understanding this principle,
there are sure arrangements which have been incorporated by the criminal procedure against
a judgment or order of criminal courts. CrPC contains elaborate arrangements on appeals
beginning from Section 372 to Section 394.
“In a general sense, appeal is a legal right conferred upon parties, however, revision
completely depends on the discretion of a criminal court, which means that it is not a right as
such. In criminal cases, at least one appeal is granted to an accused by the legislature,
whereas there is no such right in instances of revision. In fact, the courts have many times
discussed the difference between an appeal and a revision. In the case of Hari Shankar vs
Rao Ghari Chowdhury1, the Supreme Court held that”
“the distinction between an appeal and a revision is a real one. A right of appeal carries with
it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal
limits the rehearing in some way as. The power to hear a revision is generally given to a
superior Court so that it may satisfy itself that a particular case has been decided according
to law.”
Blacklaws dictionary defines an appeal as –
1
1963 AIR 698
Page | 7
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
“Resort to a superior (i.e. appellate) court to review the decision of an inferior (i.e. trial) court
or administrative agency. A complaint to a higher tribunal of an error or injustice committed
by a lower tribunal, in which the error or injustice is sought to be corrected or reversed.”2
The phrase abate, when applied to legal activities, indicates that the action is completely dead
and can only be revived by starting a new one. When we talk about abatement in regards to
the criminal law, what happens to criminal charges if the accused dies before the case is
resolved is a topic that is rarely explored. Do criminal charges persist in this case even after
the accused has died?
ABATEMENT IN SECTION 394 OF CRPC
Ordinarily, every criminal appeal, whether against acquittal or conviction, will come to an
end on death of appellant. Abatement of appeals is governed by S. 394 of the Code of
Criminal Procedure, 1973 (hereinafter called "the Code").3 Section 394 of the Code after its
amendment on the basis of recommendation made by the Law Commission of India in its
Forty-First Report.4
OLD CODE
Abatement of appeals is not a new provision added to the Indian criminal procedure system,
it has been there since the old code was formed by the British Government in 1898. Section
431 of Criminal Procedure Code of 1898 talked about abatement of appeals.
NEW CODE
In the present Criminal Procedure Code of 1973, which is currently followed by the Indian
Courts, Section 394 is the provision which talks about abatement of appeals.
Section 394
The case is closed because the cause of action has expired. In a criminal case, for example,
the death of an accused individual during the trial leads in the case being dismissed.
“394. Abatement of appeals.—(1) Every other appeal under section 377 or section 378 shall
finally abate on the death of the accused.
2
Blacklaw’s Dictionary, 6th ed.
3
Cri LJ1998
4
September, 1969, Vol. 1, Pp. 279-281
Page | 8
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall
finally abate on the death of the appellant:
Provided that where the appeal is against a conviction and sentence of death or of
imprisonment, and the appellant dies during the pendency 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 abate.
Explanation.—In this section, "near relative" means a parent, spouse, lineal descendant,
brother or sister.”
Clause one of the section talks about appeals mentioned in Section 377 and 378.
Appeal by the State Government against sentence and appeal in case of acquittal are defined
under these two sections.
Every appeal under section 377 (by the State or Central Government against the inadequacy
of sentence) shall finally abate on the death of the accused.
There is no question of the State of Central government dying in these appeals since they are
the appellants, hence, the accused will invariably be the respondent in these appeals.
Every appeal under section 378 (by the State or Central Government or the private
complainant against acquittal) shall finally abate on the death of the accused.
Clause two of the sections mentions that every other appeal under this chapter (Chapter 29-
Appeals) except an appeal of fine, shall abate on the death of the appellant.
Other appeals which can be abated under Chapter XXIX are as follows-
1. An appeal under section 373 against security proceedings.
2. An appeal under section 374 against conviction.
If it is mentioned that every other appeal under chapter 29 will abate then the appeal u/ s. 372
shall also abate. The appellant in that appeal is the victim. If victim has died, then how can
that appeal continue to proceced? Hence. there should be a corresponding amendment, or
legislative intervention with respect to Section 394 clause 2 with respect to appeals
mentioned in S. 372 of CrPC.
Page | 9
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
Exception to Section 394(2)-
1. An appeal against a sentence of fine does not abate on the death of the appellant.
2. An appeal against a composite sentence of fine and imprisonment will not cease to be
an appeal against a sentence of fine and appeal against a sentence of fine will not
abate. But the sentence of imprisonment, subject to the proviso, will cease to exist.5
Except for an appeal from a monetary punishment, every appeal against a conviction expires
when the accused dies. The exemption in the case of a fine is warranted since a fine imposes
a responsibility on the estate of the deceased accused and his legal representatives, who have
the right to avoid it.
“Proviso to sub-section (2) enables any of the near relatives of the deceased accused who was
convicted and sentenced to death or the life imprisonment, to obtain leave to continue the
appeal within specified period of thirty days of the death of the appellant, with a view to get
rid of stigma or odium that would otherwise attach with the members of the deceased’s
family. If such leave is granted, the appeal shall not abate.”
The appeal against the main accused shall be dismissed only against him and not against the
other co-accused people if the main accused dies while the criminal appeal is pending. As a
result, the appeal would not be rendered ineffective in the case of additional defendants.
In the case of State of Andhra Pradesh v. Narasimha Kumar 6, the High Court overturned
the respondents' conviction and sentence. One of the respondents died before special
permission to appeal was granted, and one of the respondents died before special leave to
appeal was granted. In the case of the dead respondent, the appeal was dismissed.
In the case of Girija Prasad (deceased) v. State of Madhya Pradesh 7, the accused
(deceased) was charged with an offence under Sections 5 and 4 of the Prevention of
Corruption Act, 1947, read with Section 161 of the Indian Penal Code (both of which have
since been repealed) for accepting a bribe of Rs. 500/- after being caught red-handed through
5
AIR 1975 SC 236
6
AIR 2006
7
2007 (9) SCR 483
Page | 10
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
a trap. The accused had been acquitted by the Sessions Court but on appeal by the State
against his acquittal, the High Court of Madhya Pradesh set aside the order of acquittal
passed by the Sessions Court and convicted the accused under Section 161, IPC (now
repealed) and sentenced him to simple imprisonment for four months and a fine of Rs. 200/-.
The High Court had passed the order of conviction and sentence on April 17, 2002 and the
accused died thereafter. The widow of the accused had appealed against the conviction of her
deceased husband (accused) so that the stigma cast upon her husband was removed. Though
the appeal was filed before the Supreme Court 149 days after the presented time-limit and
was barred by limitation, but the Court taking a humanitarian view, condoned the delay under
Section 394 (2) and admitted it for hearing.
It must be stated that the principles under Section 394, Cr. P.C. are also applicable to appeals
before the Supreme Court. Thus in Shankar Prasad Ghosh v. State of Bihar, the legal heirs
filed application for leave to continue appeal on death of appellant after 5 years against the
statutorily prescribed period of 30 days for making such application. No explanation was
given for the delay. The Supreme Court held that appeal stood abated and declined to go into
the question of condonation of delay.
Page | 11
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
JUDICIAL PRONOUNCEMENTS
In this chapter, landmark judgements of the Supreme Court of India pertaining to Section 394
of CrPC will be analyzed.
CASE I
Ramesan (Dead) Through Lr. Girija A vs The State Of Kerala
Citation: AIR 2020 SC 559 : 2020 (1) RCR(Criminal) 782 : 2020 (3) SCC 45 : 2020
Bench: Justice Ashok Bhushan
Material Facts
1. An FIR was registered against Ramesan under Sections 55 (a) and (g) of the Kerala
Abkari Act.
2. The session court tried and convicted the accused under Section 55(a) and imposed
imprisonment of a period of two years with a fine to the tune of one lakh rupees.
3. An appeal was then filed by Ramesan in the High Court but eventually he died after
few months.
4. The High Court noticed the death of the appellant but proceeded to deicide the appeal
on merits keeping in mind S. 394 of CrPC.
5. “The High Court after considering the evidence on record upheld the conviction. The
High Court took the view that since the appellant died pending the appeal, the
sentence of imprisonment has become unworkable, however, regarding the imposition
Page | 12
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
of fine, there is no reason to hold that Court below committed any mistake and the
appeal was consequently dismissed.”
Issues
1. Whether the appeal should be abated as it was against fine and imprisonment both.
Arguments
BY THE APPELLANT-
1. The learned counsel appearing on behalf of the appellant contended that since this
was an appeal against the sentence of imprisonment and fine, the High Court of
Kerala should have abated the entire appeal against both imprisonment and fine.
2. It is further contended by the appellant that the Kerala High Court made a grave error
in deciding the appeal before it on merits of the case.
BY THE DEFENDANT-
1. “Learned counsel for the State refuting the submission contends that there being
sentence of fine also, the appeal has rightly been decided on merits by the High Court.
The sentence of fine or composite sentence of imprisonment and fine, is also a
sentence of fine.”
Interpretation of Law and Judgement
The court cited several previous supreme court decisions in the context of Section 431 of the
Old Code and stated that even if a fine is given in addition to a sentence of imprisonment
under Section 431, the appeal would not be dismissed. Section 394 Cr.P.C. uses the same
phrase as was used in Section 431, namely, “except an appeal from the judgement of fine.”
The court also made a mention of Section 70 of the Indian Penal Code 8 and stated that
“section 70 of Indian Penal Code provides that any part of fine which remains unpaid may be
levied at any time within six years after the passing of the sentence. The provision further
provides that the death of offender does not discharge from the liability any property which
would, after his death, be legally liable for his debts.”
8
Act No. 45 of 1860
Page | 13
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
The Supreme court took the case of Harnam Singh Vs. The State of Himachal Pradesh 9,
dealing with an appeal against a composite sentence of fine and imprisonment. The facts of
this case are that the accused was charged under Section 55 of the Prevention of Corruption
Act and Section 161 of the Indian Penal Code, 1860. He was given a composite sentence of
fine and improsinment.
It was contended by the State that since the substantive part of the sentence, imprisonment,
came to an end with the death of the accused, the appeal against the sentence of fine should
also have been abated.
“Rejecting the above submission, this Court laid down that if by the judgment under appeal a
sentence of fine is imposed either singularly or in conjunction with a sentence of
imprisonment, the appeal against conviction would be an appeal from a sentence of fine
within the meaning of Section 431.”
Another case which was highlighted by the Supreme Court for the purpose of coming to a
conclusion wad that of Lakshmi Shanker Srivastava Vs. State (Delhi Administration) 10.
The accused in this case was sentenced to rigorous imprisonment for eighteen months and
fine to the tune of 200 rupees. However, while the case was appealed in the Supreme Court,
the accused appellant met his death.
Legal heirs were granted leave to pursue the appeal under the exception to Section 394(2). Re
lying on Section 394's exception, this Court disregarded the principal contention that the appe
al should be dismissed (2).
The concept of non-abatement of an appeal from a fine judgement is the same as was given in
Section 431 of the Cr.P.C., 1898, and Section 394 of the current Cr.P.C. A comparable
procedural plan has been contained, which was happening in Section 431 Cr.P.C., 1898,
consequently, judgment of this Court with respect to understanding of Section 431, Cr.P.C. as
has been pronounced by this Court in Bondada Gajapathi Rao 11 and Harnam Singh12 was
decisively applied to the translation of Section 394 Cr.P.C.
Thus, the court concluded that the appeal in the current instance, in which the defendant was
sentenced to both imprisonment and a fine, should be considered as an appeal against the fine
9
AIR (1975) 3 SCC 343.
10
(1979) 1 SCC 229
11
AIR 1964 SC 1645
12
Supra 9
Page | 14
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
and not abate, and that the High Court did not make any errors in resolving the appeal on the
merits.
CASE II
Shankar Pd. Ghose (Dead) vs State Of Bihar & Anr
Citation: AIR 2006 3 SCC (Cri) 54
Bench: Arijit Pasayat, P.P. Naolekar
Author: Justice A Pasayat
Material Facts
1. Petition before the Supreme Court was filed by the appellant question the judgement
given by the High Court of Patna.
2. The appeal was filed against the composite sentence of fine and imprisonment given
the by the High Court.
3. During the pendency of the appeal, the appellant died.
4. His legal representatives filled an application to continue the appeal five years after
his death.
Issues
1. Whether the appeal should be allowed or disposed of.
Arguments
BY THE RESPONDENT
1. “Learned counsel for the respondent-State submitted that there is no scope for
accepting the applications. Section 394 has no application to the appeal before
the Supreme Court. In any event, time statutorily prescribed is 30 days. In the
instant case, applications have been filed nearly 5 years after the date of the
death of the appellant-Shankar Prasad Ghosh.”
Page | 15
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
Interpretation of Law and Judgement
The hon’ble Supreme Court held that since no explanation was offered by the legal
representatives of the deceased for undue delay of five years after which they had filed the
application to continue the appeal, the appeal stood dismissed.
The court made mentions to several judgments dealing with the same subject matter and
noted down the observations made in these precedents.
In the case of S.V. Kameswar Rao and Anr. v. State (A.C.B. Police, Karnool District,
Andhra Pradesh)13, this court had observed that Section 394 of the Code of Criminal
Procedure peruses that each appeal will at long last decrease on the demise of the
appealing party. The stipulation to that segment says that where the appeal is against a
conviction and sentence of death or of detainment and the litigant bites the dust during the
pendency of the said appeal, any of his family members, may within 30 days of the
passing of the litigant, apply for the leave of appeal, which is given in the proviso
attached to stipulation of Section 394; and in case leave is in all actuality, the appeal will
not subside. In the current case, none of the family members of the expired inside the
term of the clarification to the stipulation have moved toward this Court within 30 days
for pass on to proceed with the appeal. This current application is documented almost
following a time of 10 years. No clarification is given in this application for not moving
toward the court inside that recommended period and no adequate reason is displayed for
approbation of such unnecessary and over the top deferral of 10 years. The decision of
this Court in P.S.R. Sadhanantham v. Arunachalam 14 was relied on in the petition
wherein it has been held thus:
"Article 136 is a special jurisdiction. It is residuary power; it is extraordinary in its
amplitude, its limit, when it chases injustice, is the sky itself." 15
13
(1991 Supp (1) SCC 377)
14
1980 AIR 856, 1980 SCR (2) 873
15
SCC p. 145, para 7
Page | 16
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
CASE III
Jugal Kishore Khetawat vs State Of West Bengal
Citation: (2011) 11 SCC 502 : (2011) 3SCC (Cri) 387 : 2011 SCC Online SC 408 : 2011 Cri
LJ 2170 : AIR 2011 SC 1358
Bench: B. Sudershan Reddy, Surinder Singh Nijjar
Material Facts
1. The deceased accused was convicted under Section 120B and 302 of the Indian Pneal
Code, 1860. She was accused of conspiring two murder two of her neighbours and
was given a life imprisonment.
2. The deceased accused applied for a Special Leave Petition before the present court
and the leave was granted.
3. During the pendency of the proceeding, the accused met her death.
4. Husband of the appellant, Jugal Kishor, applied for continuation of the appeal.
5. The Registrar of the Supreme Court allowed for the leave to continue the appeal.
Issues
1. Whether the ambit of section 394 CrPC could be extended to Special Leave Petition
given in Art. 136 of the Constitution.
2. Whether the leave to continue the appeal can be granted by the Registar.
Interpretation of Law and Judgement
The Supreme Court shed a light on the proviso to Section 394 of CrPC and elucidated the
reason for adding such a proviso. Section 394 has been copied from the Old Criminal
Procedure Code where the abatement of appeals was given under section 431.
“An amendment to Section 431 was suggested in the Bill introduced in the Parliament by
a private Member, Shri K.V. Raghunatha Reddy. The main object of the amendment was
Page | 17
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
to provide a machinery whereby the children or the members of the family of a convicted
person who dies during the appeal could challenge the conviction and get rid of the odium
attaching to the family as a result of the conviction. The Law Commission of India by its
Forty-First Report16 found the proposed amendment "eminently sound" and recommended
that the amendment be made with certain modifications. Accordingly, Section 394 of the
Code of Criminal Procedure, 1973 has made the said proviso.”
The Supreme Court made an observation that this appeal was allowed by way of SLP which
is given under Article 136 of the constitution, which was not mentioned in S. 394 of CrPC.
Hence, a question which arose before the court was whether such an appeal could have been
abated or allowed to continue even after the death of the accused under Section 394.
The court took help of a landmark case decided by it where the objective, aim, and goal of
Special Leave Petition was discussed at length. In the case of P.S.R. Sadhanantham vs.
Arunachalam17, the court said that Article 136 does not give a party the right to appeal,
but it does give the Supreme Court broad authority to intervene in appropriate situations.
It is a residuary power with an exceptional range. However, the framers of the
Constitution intended that Article 136 be exercised by the country's highest judges, who
must adhere to strict judicial principles.
Hence, in the present case, the court held that in suitable situations, the court may give
leave on the application of a close family of the deceased appellant, and if leave is
granted, the appeal will not be dismissed. The concept enshrined in Section 394 of the
Code, can be used in appeals brought before this Court under Article 136 of the Indian
Constitution.
Dealing with the second issue, the court enumerated the powers of the Registar.
“Order VI of the Supreme Court Rules, 1966 confers the powers of the Court in relation
to the matters mentioned therein to be exercised by the Registrar which includes
application for substitution, except where the substitution would involve setting aside an
abatement..”
16
September 1969, Vol. I, pp. 279-81
17
(1980) 3 SCC 141
Page | 18
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
The power to allow leave for continuation of the appeal is only resided with the Court and not
the Registar, hence, the order of the Registar to grant leave was dismissed and the petition
filed by the husband of the deceased to continue the appeal was allowed.
Conclusions and Suggestions
The makers of the Criminal Procedure Code in India inserted a provision for what would
happen to a criminal appeal in case the appellant dies during the proceedings. Keeping this in
mind, Section 431 and Section 394 were inserted in the Old Code and New Code
respectively.
Three landmark cases were discussed, each dealing with a different aspect of Section 394.
The first case dealt with the appeal against a composite sentence of fine and imprisonment. In
this recent landmark judgement, it was held that that an appeal against such a composite
sentence shall not abate as the sentence includes that of fine too.18
The second case dealt with the time limitation mentioned in the proviso to the Section, which
says that any of the near relatives of the deceased accused can file for leave to continue the
appeal within 30 days of the death. In this case, the legal represntatives had applied for appeal
to continue after five years, for which no explanantion was provided. Hence, the court
dismissed their application.19
The third case deal with Article 136 of the constitution and the court held that the it was
within the power of the Supreme Court to allow leave to continue the appeal in cases where
the accused had met his death.20
Except for appeals against fines, all appeals cease when the appellant dies, because the
punishment under appeal can no longer be carried out. The only time an appeal under this
provision can be dismissed is if the accused dies. When there were two defendants, both of
whom were acquitted by the High Court after the primary defendant died, the case against
him was dropped. Appeal against the other accused who was a mere abettor was held to
become infructuous.
18
AIR 2020 SC 559 : 2020 (1) RCR(Criminal) 782 : 2020 (3) SCC 45 : 2020
19
AIR 2006 3 SCC (Cri) 54
20
(2011) 11 SCC 502 : (2011) 3SCC (Cri) 387 : 2011 SCC Online SC 408 : 2011 Cri LJ 2170 : AIR 2011 SC
1358
Page | 19
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
When the High Court accepts an appeal against an acquittal, it becomes the High Court's
responsibility to resolve the case, regardless of whether the applicant chooses not to prosecute
or is unable to prosecute for one reason or another21.
If the main accused died while the appeal was pending, the appeal would be dismissed only
in respect of the dead and not as a whole. A legitimate conviction would be recorded against
the deceased. In the case of other defendants, the appeal would not be futile. This section's
concept applies to matters in revision too. A revisional application against a sentence of fine
will not abate by reason of the death of the applicant.22
The right to appeal a fine penalty does not end when the appellant dies, and the proviso to the
provision allows any of the appellant's close relatives to seek permission to continue the
appeal.23 In the event of an appeal against a composite ruling of imprisonment and fine, this
provision will apply. After the phrase "sentence of fine," there is no word "only".24
One amendment that the legislature should make to Section 394 is that if it is mentioned that
every other appeal under chapter 29 will abate then the appeal u/ s. 372 shall also abate. The
appellant in that appeal is the victim. If victim has died, then how can that appeal continue to
proceeed? Hence. there should be a corresponding amendment, or legislative intervention
with respect to Section 394 clause 2 with respect to appeals mentioned in S. 372 of CrPC.
21
Khedu Mohton v State of Bihar, AIR 1971 SC 66 : (1970) 2 SCC 450 : 1971 Cr LJ 20
22
Sita Ram v Ram Dayal, (1937) 13 Luck 306
23
Om Prakash v State of Haryana, AIR 1979 SC 1266 : 1979 Cr LJ 857 : (1979) 4 SCC 495
24
Harnam Singh v The State of Himachal Pradesh, AIR 1975 SC 236 , at p 238 : (1975) 3 SCC
Page | 20
SEMESTER VI: CODE OF CRIMINAL PROCEDURE PROJECT I
Bibliography
1. https://www.scconline.com/
2. https://indiankanoon.org/
3. https://www.manupatrafast.com/
4. https://www.indialegallive.com/constitutional-law-news/supreme-court-news/
5. https://www.casemine.com/
Page | 21
