Pratap Alias Pratap Kishore Bisi Vs. State of Orissa - Court Judgment

A. Pasayat, J.

1. It is stated by Mr. Subrata Ghose on instruction that appellant Pratap alias Pratap Kishore Bisi (hereinafter referred to as 'appellant') has breathed his last on 6-6-1995. He was convicted for offences punishable under Sections 302 and 307 of the Indian Penal Code, 1860 (In Short. 'IPC') and was sentenced to undergo imprisonment for fife for the former in S. T. Case No. 127/122 of 1992-93 by the learned Sessions Judge, Sambalpur. No separate sentence was awarded for the conviction under Section 307, IPC.

2. Section 394 of the Code of Criminal Procedure, 1973 (In short, the 'Code') deals with abatement of appeals. It provides that every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. In terms of Sub-section (2) of Section 394 every other appeal under Chapter XXIX of the Code, except an appeal from a sentence of fine shall finally abate on the death of the appellant. Every other appeal except an appeal from a sentence of fine abates on the death of the appellant. The object of introducing the exception by the proviso as to an appeal against sentence of fine was to prevent the estate of the deceased appellant from being damaged. The sentence of fine is not a matter which affects the person only, but affects his property. There is a purpose in permitting the near relative to continue the appeal. The object in adding the proviso is to remove the stigma that may attach to the relatives of the accused by continuing the appeal. The principle is that the near relative of a deceased convicted person cannot be allowed to appeal unless he could show a legal interest as opposed to a sentimental interest; e.g. clearing the name of the convicted person. The exception is in the case of a sentence of fine. Though in a majority of the cases, where the appellant who is sentenced to imprisonment dies during the pendency of the appeal, the interest of his legal representatives in the appeal may be purely sentimental there are exceptional cases where the interest may also be pecuniary. Thus, if the conviction is in a charge of murder of a near relation, whose heir or one of whose heirs is the alleged murderer, (if the conviction is not set aside) will be disqualified from inheriting the property. If he dies during the pendency of t e appeal, his heirs have a pecuniary interest in prosecuting the appeal. If the appeal succeeds, their right of inheritance to the property of the deceased through the appellant will be saved. These aspects were noted by the Law Commission is its 41st Report at paras 31. 61 and 31. 62 with reference to Section 431 of the Code of Criminal Procedure, 1898 (in short, the 'Old Code'). Section 394 of the Code corresponds to Section 431 of the Old Code. The Law Commission recommended a machinery by which the children or other members of the family of a convicted person dying during appeal could test conviction and get rid of the odium, which would otherwise attach to them. It was felt that law should give the right to continue the appeal to near relatives. It was also recommended that time-limit should be given by which the near relative should seek leave of the Appellate Court to continue the appeal. Accordingly, Clause 404 of the Bill provides that an appeal against conviction and sentence of imprisonment will not abate on the appellant's death if his near relatives obtain the leave of Court to continue the appeal. However, the proviso and the Explanation to Section 394 are newly added. Old Section 431 has been bifurcated, the first part is reproduced in Sub-section (1) and the second part in Sub-section (2). Sub-section (1) of Section 394 dealing as it does with appeals against orders of acquittal naturally provides that such appeals must necessarily abate, because the accused person has passed beyond the jurisdiction of the Court. Sub-section (2) deals with appeals by convicted persons or by a person who has been deprived of any property, or who has been ordered to furnish security etc., and lays down that such appeals shall finally abate on the death of the appellant except appeals from a sentence of fine.

3. Where the appeal is against 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 appeals and if leave is granted, the appeal shall not abate. The explanation appended to Sub-section (2) of Section 394 provides that a 'near relative' for the purpose of the said section means a parent, spouse, lineal descendant, brother or sister. These aspects have teen elaborately dealt with in Krushna Naik v. State of Orissa : (1995) 9 OCR 551.

4. No application has been received from any near relative for continuing the appeal.

The appeal is accordingly disposed of.

P.C. Naik, J.

5. I agree.