ORDER
K.P. Balanarayana Marar, J.
1. The five appeals were filed by the complainant in five cases before the Judicial First Class Magistrate, Pathanamthitta. Cognizance was taken on the basis of the complaints filed by one of the members of the Pathanamthitta Service Co-operative Bank against its President, Members of the Director Board and the Secretary. The records of the Bank are alleged to have been manipulated by the accused and they had obtained unlawful gain by appointing persons. Charges were framed against the accused in all the five cases for offences under Sections 466 and 474 read with Section 34, IPC. The trial Court found the accused guilty of those offences and convicted them. The 3rd accused was released under Section 4(1) of the Probation of Offenders Act. All the other accused were sentenced to undergo imprisonment for one year apart from payment of fine. Appeals were filed by the accused before Sessions Court, Pathanamthitta. All the appeals were allowed and accused were acquitted .Complainant after obtaining leave from this Court has filed these five appeals challenging the judgment of the appellate Court.
2. During the pendency of the appeals, the appellant died. Two of the members of the Bank seek permission to continue the appeals. Since there has been delay in making that request, request for condonation of delay is also made by filing separate petitions. Since all these five appeals are to be heard together, the Criminal Miscellaneous Petitions were heard jointly and are being disposed of by this common order.
3. The request for permission to allow petitioners to continue the appeals is opposed by the accused according to whom petitioners have no right whatsoever to come on record or to prosecute the appeals. Learned counsel for petitioners draws attention to the provision contained in Section 394 of the Code of Criminal Procedure and points out that the appeal shave not come to an end consequent to the death of the appellant. Section 394(1) of the Code says that every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. That Sub-section does not apply since this is not a case where the accused had died. According to counsel it is sub-sec (2) that is applicable which says that every other appeal under that Chapter, except an appeal from a sentence of fine, shall finally abate on the death of the appellant. This Sub-section contains a proviso 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. According to counsel for the accused, the proviso is not attracted since the appeal is not against a conviction and sentence of death or of imprisonment and by virtue of the provision contained in Sub-section (2),the appeal has abate don the death of the appellant.
4. There is no provision in the Code for the legal representatives of the appellant being brought on record. But any of the near relatives of appellant who dies during the pendency of an appeal filed against a conviction and sentence of death or of imprisonment can make a request to the Court for grant of leave to continue the appeal and on such leave being granted, the appeal shall not abate. A right has now been conferred by the proviso to Sub-section (2) of Section.394 on near relations to press the appeal on behalf of the deceased convict and the appeal can be continued with the leave of the Court. Since the proviso is not applicable to the present case, it has only to be seen whether the appeal has abted on the death of the appellant by virtue of Sub-section (2) of Section 394 of the Code.
5. What is the procedure to be followed when the appellant dies during the pendency of the appeal has been considered by the Supreme Court in Khedu Mohton v. State of Bihar, : 1971CriLJ20 . That also was a case where the appeal before the High Court was brought after obtaining special leave under Sub-section (3) of Section 417 of the Code of Criminal Procedure, 1898. During the pendency of the appeal the appellant died. It was contended before the High Court that the appeal has abated in view of the death of the appellant. That contention was reiterated before the Supreme Court. While answering that contention, the Supreme Court held that it is clear that an appeal under Section 417 can only abate on the death of the accused and not other wise. It is observed that once an appeal against an acquittalis entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact that the appellant either does not choose to prosecute it or is unable to prosecute it for one reason or the other. It is stated that the argument that while introducing Sub-section (3) to Section 417, Cr. P. C, the Parliament overlooked the provisions contained in Section 431, does not deserve consideration. Section 431 of the Code of 1898 is in Pari materia with Section 394 of the Code of 1973, except the proviso to Sub-section (2) of that section which is not relevant in the present case. The Supreme Court has therefore held that the appeal has to be decided on merits whether the appellant chooses to prosecute it' or when he is unable to prosecute it for one reason or the other.
6. This is a case where the appeal could not be prosecuted by the appellant he having died during the pendency of the appeals. In such circumstances, the appeals do not abate and it is open to this Court to permit any person interested to prosecute the appeals. Petitioners are very much interested in the out come of the litigation, they being members of the Co-operative Bank. Permitting them to continue the appeals would not amount t p substitution of legal representatives of the deceased complainant. For a proper determination of the appeals, the presence of someone who can place all the relevant facts be fore this Court is necessary. Petitioners being members of the Society are competent to place the relevant facts so that no aspect of the matter escapes the notice of this Court. In these circumstances, there quest of petitioners to permit them to continue the appeals has to be allowed.
7. It is then pointed out by counsel for respondents that there has been inordinate delay in filing the applications seeking permission. When there is no abatement of the appeals consequent to the death of the complainant, the question of delay in moving this Court seeking permission does not arise. Petition filed for con donation of delay is superfluous. Even without explaining the reason for the delay, it is open to petitioners to request this Court to grant permission. The objection that there is inordinate delay in moving this Court for getting permission is therefore without substance.
8. For the aforesaid reasons these petitions are allowed and petitioners are permitted to continue the appeals against the respondents.