- (1.) Petitioner-Complainant has filed the present revision petition challenging the judgment dated 6.12.2013 passed by learned Additional Sessions Judge, Gurgaon, whereby the revision petition preferred by the respondent-accused against judgment dated 5.7.2012 passed by Judicial Magistrate Ist Class, Gurgaon, ordering summoning of the respondent-accused to face trial under Sections 420/467/468/471 IPC has been allowed and order dated 5.7.2012 has been set aside, resulting into dismissal of complainant qua the respondent-accused. Despite notice having been issued to counsel for the petitioner for today, no one has put in appearance on behalf of the petitioner, despite the case has been passed over twice. It seems that the petitioner is not interested to pursue the present petition.
(2.) Even otherwise, as per office report dated 18.1.2016, notice issued to the respondent has been received back unserved, as the respondent is reported to have died. A photocopy of the death certificate of the respondent has also been attached along with letter dated 24.12.2015 received from Chief Judicial Magistrate, Gurgaon, which is taken on record. Now, the question for consideration before this Court is - whether in the absence of any express provision regarding 'abatement of revision petition', like the one under Section 394 of the Code of Criminal Procedure, 1973 (for brevity, 'the Code'), which provides for 'abatement of appeal', the present revision petition would also abate by applying the said principle Section 394 of the Code provides thus:- "394. Abatement of appeals.-- (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. (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." Section 401 of the Code deals with the High Court's powers of revision. Sub-section (1) thereof provides that the High Court, while exercising revisional jurisdiction may also exercise powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 of the Code. Thus, provisions contained under Section 394 of the Code concerning abatement of appeals have not been made applicable to the Court exercising power under Chapter XXX (Sections 397 to 401) of the Code. Thus, there is no express provision in the Code for dismissal of the revision application as abated on the death of the applicant.
(3.) In Bondada Gajapathi Rao v. State of Andhra Pradesh, 1964 AIR(SC) 1645, Hon'ble the Supreme Court after referring to its earlier judgment Pranab Kumar Mitra v. State of West Bengal and another, 1959 AIR(SC) 144, held that revision petitions and some appeals from sentences of fine might be continued by his legal representatives on the death of the accused pending the proceeding. It was further held that the provisions of Section 431 of the old Code (which is now contained under Section 394 of the Code) would also be applicable to special leave to appeal under Article 136 of the Constitution of India. Although on the facts of that case, Hon'ble the Supreme Court declined to permit the legal representatives to continue the SLP, in paras 2 & 6, it has held thus: "(2) There would seem to be authority for the proposition that revision petitions and some appeals from sentences of fine might be continued by his legal representatives on the death of the accused pending the proceeding: see S. 431 of the Code of Criminal Procedure and Pranab Kumar Mitra v. State of West Bengal, 1959 AIR(SC) 144 It appears that in England appeals from similar sentences are permitted to be continued by the executors of the deceased appellant: see Hodgson v. Lakeman, 1943 KB 15. It is true that neither S. 431 nor the cases mentioned can be said to apply to the present case proprio vigore, for the present is not an appeal under the Code which is dealt with by S.431 nor is it a revisional application like the one which came up for consideration in Pranab Kumar Mitra case, 1959 Supp1 SCR 63 while as for the English case, it is only of persuasive value. All the same however I think it must now be held that appeals from sentences of fine may be permitted to be continued by the legal representatives of the deceased appellant. First, I find no provision making such appeals abate. If they can be continued when arising under the Code, there is no reason why they should not be continued when arising under the Constitution. If revision petitions may be allowed to be continued after the death of the accused so should appeals for between them no distinction in principle is possible for the purpose of continuance. It is true that the Code of Criminal Procedure which creates the revisional powers of a Court provides that such powers may be exercised suo motu but it does not seem to me that Pranab Kumar Mitra case, 1959 Supp1 SCR 63 was based on this for on that ground all revision cases should have been permitted to be continued and the permission should not have been confined to cases of fine. Indeed in that case this Court proceeded on the basis that there was no statutory provision applying to the case. It observed, 'even in the absence of any statutory provisions, we have held.............that the High Court has the power to determine the case even after the death of the convicted person, if there was a sentence of fine also imposed on him, because that sentence affects the property of the deceased in the hands of his legal representative'. A sentence of fine affects property equally when the case is taken further up in appeal or in revision. If it is just and proper to continue the hearing in one case after the death of the accused, it would be equally so in the other case xxx xxx xxx xxx xxx xxx xxx xxx xxx (6) In my view, for those reasons the legal representatives are not entitled to continue the appeal. That being so and as the sentence was one of imprisonment which would not affect anyone after the death of the accused, it cannot be said that there is anyone interested in the appeal. There is no question, therefore, in such a case for proceeding further with the appeal";