A. Roy, J. - (1.)This appeal was preferred in this Court by Binapani Devi, the complainant, under Sec. 417(4) of the Code of Criminal Procedure after obtaining special leave under Sub -section (3) of that Sec. of the Code. It is directed against an order of acquittal passed by a Magistrate, First Class, acquitting the accused of an alleged offence under Sec. 323 of the Indian Penal Code. After the appeal was preferred within the period allowed by law calculated from the date of grant of special leave under Sec. 417(3) of the Code of Criminal Procedure and after the appeal was admitted at the preliminary hearing under Sec. 421 of the Code of Criminal Procedure and notices under Sec. 422 of the Code of Criminal Procedure were served on the Respondent and also on the State, during the pendency of this appeal in this Court, the complainant Appellant died. Upon such death an application has been made on behalf of the heirs of the complainant praying to be substituted in the position of Appellants.
(2.)Mrs. Bose, appearing on behalf of the accused Respondent, has taken a preliminary objection that by the death of the complainant Appellant the appeal has abated and, therefore, the learned Advocate for the Appellant Mr. Sinha, who is authorised by a vokalatnarria to appear by the deceased Appellant, has lost his authority to press the appeal and has no locus standi to be heard before this Court. On behalf of the State to whom the notice was also served under Sec. 422 of the Code the learned Advocate Mr. Sen Gupta has appeared. In view of the subtlety of the preliminary objection taken by the learned Advocate for the Respondent I have heard all the three Advocates above -mentioned on that point. Mrs. Bose has relied on Sec. 431 of the Code of Criminal Procedure. In her fairness she herself has cited before me a decision given by myself sitting singly in the case of Nanilal Samanta v/s. Robin Ghose : A.I.R. 1964 Cal. 64. On examining that decision it appears that the view expressed there, which view I still adhere to, was clearly stated in these words: Therefore, an admitted appeal against order of acquittal presented to the High Court under Sec. 417(3) of the Code of Criminal Procedure does not abate on the death of the Appellant. It 'finally abates' on the death of the accused as enjoined by Sec. 431 of the Code of Criminal Procedure. It is the fact of death of the accused in an appeal against order of acquittal and of the Appellant in any other appeal that entails the consequence of abatement, unlike suits and appeals under the Code of Civil Procedure where abatement is not upon death but only by omission to substitute heirs and legal representatives within the time prescribed by law. As abatement under Sec. 431 of the Code of Criminal Procedure, when it occurs, is final, therefore no question of substitution can arise at all. That is the reason why the Code of Criminal Procedure does not contain any provision for substitution of any one in place of a deceased party in any appeal, be it an appeal against an order of acquittal or be it any other appeal. Mr. Banerjee is, therefore, right in contending that in a Criminal Appeal no order can be made for substitution in place of a deceased party.... Therefore, death of an Appellant complainant in an appeal against order of acquittal under Sec. 417(3) of the Code of Criminal Procedure does not Firing about the consequence of abatement of such appeal nor does such death relieve the Appellate Court of the duty to dispose of the appeal in accordance with Sec. 423 of the Code of Criminal Procedure.... I, therefore, hold that in an admitted appeal there is neither any necessity nor any scope for substitution of any one in place of a deceased Appellant. When the Appellant is the accused, or any one other than complainant on his death the appeal 'finally abates' (except an appeal from a sentence of fine). When the appeal is against order of acquittal under Sec. 411 -A(2) or Sec. 417, only on the death of accused such appeal 'finally abates' and on the death of the complainant Appellant the appeal does not abate.... The appeal has not abated and must be disposed of on merits. Preliminary point raised by Mr. Banerjee against consideration of the appeal on merits is overruled.
(3.)Mr. Sen Gupta for the State has pointed out that the view above expressed has received approval of the Supreme Court in the case of Khedu Mohtan and Ors. v/s. State of Bihar : A.I.R. 1971 S.C. 66. In the relevant paragraph their Lordships have observed: From this Sec. it is clear that an appeal under Sec. 417 can only abate on the death of the accused and not otherwise. Once an appeal against an acquittal is entertained by the High Court to decide the same irrespective of the fact the Appellant either does not choose to prosecute it or is unable to prosecute it for one reason or the other. The argument that while introducing Sub -section (3) to Sec. 417, Criminal P.C., the Parliament overlooked the provisions contained in Sec. 431 does not deserve consideration. The language of Sec. 431 is plain and unambiguous. Therefore, no question of interpretation of that provision arises. The appeal has, therefore, to be disposed of on its merits.