SUBBIAH GOUNDER Vs. KANDASWAMY GOUNDER
LAWS(MAD)-1970-7-6
HIGH COURT OF MADRAS
Decided on July 10,1970

SUBBIAH GOUNDER Appellant
VERSUS
KANDASWAMY GOUNDER Respondents

JUDGEMENT

- (1.) THIS appeal raises an important question as to whether on the death of the complainant-appellant in an appeal against acquittal, admitted under Section 417, criminal Procedure Code, there will be an abatement of the appeal whether his legal representatives could be allowed to come on record or substituted to prosecute the appeal further.
(2.) SECTION 431 of the Criminal Procedure Code which deals with abatement reads thus:-" every appeal under Section 411-A, sub-section (2), or Section 417, shall finally abate on the death of the accused, and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. " Section 411-A provides for an appeal against the conviction or acquittal of a prisoner, in cases dealt with by the High Court in the exercise of its original criminal jurisdiction. Section 417 provides for appeals in cases of acquittal by other Courts. Where an original or appellate Court other than the High Court, orders an acquittal, the State Government may direct the Public Prosecutor to present an appeal to the High Court. Clause (3) of this section provides for such appeals to the High Court in cases instituted upon complaints. But, he will have to obtain the special leave of the Court. Somasundaram, J. , in the decision in Raman v. Murugan, 1958 Mad LJ (Cri) 709 = (AIR 1958 Mad 624) has held that in the absence of any specific provision in the Criminal Procedure Code for the legal representative of a deceased appellant to be brought on record, a criminal appeal cannot be prosecuted after the death of the appellant. This he has said because there is no provision in the Code for bringing on record the legal representatives in an appeal where the appellant dies. Under Section 431, in cases of appeals coming within the purview of section 417, Criminal Procedure Code, there will be an abatement only on the death of the accused. There is no reference to any abatement in this Section, in a case where the complainant-appellant dies. True, the latter clause in this Section relates to an abatement in cases of every other appeal under the Chapter (except an appeal from a sentence of fine ). Obviously, this clause refers only to cases of appeals filed by persons convicted of offenses. Where the accused in a case has been sentenced only to fine and he dies after filing an appeal, this appeal does not abate. This is because the legal representatives of the deceased convicted person are interested in procuring a reversal of a sentence of fine or of forfeiture of property, which would naturally affect the property of the deceased in their hands. The survival of a pecuniary interest which will affect the estate has been the basis of the jurisdiction for permitting the prosecution of the appeal even after the death of the appellant. Section 431 clearly provides for such cases and it has limited the survival of the appeals only to appeals against a sentence of fine. As observed by their Lordships of the Supreme Court in Pranap Kumar Mitra v. State of West Bengal, the first part of the section 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. The second part of the section deals with appeals by convicted persons or by a person who has been deprived of any interest 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.) ABATEMENT is a creature of the statute and there is no provision in Section 431 for any abatement in a case where an appellant-complainant dies after the admission of the appeal. The section specifically states that there can be an abatement only in cases of the death of the accused. Where the complainant-appellant dies during the pendency, the Courts will have to dispose of the matter as indicated in Sections 431, 422 and 423 of the Code. Vide Nanilal Samanta v. Robin Ghosh, Therefore, the death of the appellant-complainant in a case against an order of acquittal under Section 417 (3) of the criminal Procedure Code, does not bring about the consequence of abatement of such appeals not does such death relieve the appellate Court of the duty to dispose of the appeal in accordance with Section 423 of the Criminal Procedure code. There is neither any necessity nor any scope for substitution or for the addition of any legal representative in the place of the appellant. The appeal must be disposed of on merits.;


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