- (1.) THIS is an application -in- revision filed by Ganga Bai, widow, Kamla and Devi, Daughters, of Durga Das deceased, appellant, against an order passed by the Sessions Judge, Pali, dated 16th October, 1975, by which the appeal filed by Durga Das under S. 520, old Cr. P. C. was held to have abated on the death of the appellant.
(2.) THE relevant facts giving rise to this revision petition may be, briefly stated, as follows : - Durga Das deceased lodged a written report with the police at police station, Pali, on on 18th June, 1967. It was alleged in the report that one Mangi Ram being a relative of Durga Das was allowed to stay at his house as a guest. On the day of the 'amavashya' at about 5 a. m. Durga Das and his wife Ganga Bai left there house for passing stool in a nearby jungle. When they returned after some time, they did not find their guest Mangi Ram in the house. A suspicion arose in their minds on account of absence of Mangi Ram. Hence, they tried to find out whether any article had been missing from their house. Upon checking, they found one old locket (Timnia) weigh ing about 4-1/2 tolas and one pair of silver anklet weighing about 7-1/2 tolas missing from a box lying in then room On the basis of the above mentioned report the police registered a criminal case under S. 379, IPC against Mangi Ram and made the usual investigation. Mangi Ram was arrested on 25th July, 1967. After his arrest, he furnished an information to the police that he had pledged an old locket with Manohar Das and that he was prepared to get it recovered a; his instance from the possession of the pledgee. The investigating officer recorded the above information and thereafter recovered the gold locket from the possession of Manohar Das in consequence thereof. On completion of investigation, the police filed a separate challan against Mangi Ram who confessed his guilt before the trial court and was convicted on his plea of guilty under S. 380, I. P. C. The trial court, however, gave benefit of S. 3 of the Probation of Offenders Act to the accused and let him off after due admonition instead of sentencing him to imprisonment. A separate challan was filed against Manohar Das under S. 411. IPC in the court of the Munsiff Magistrate, Pali. The learned Magistrate tried Manohar Das for the aforesaid offence and acquitted him of the same. As the learned Magistrate entertained some doubt as to the ownership of the gold locket (Timniya ). he directed notice to be given to Durga Das complainant, Manhor Das and Mangi Ram to attend his court and to submit their claims as regards ownership of the said ornament. It appears from the record of the lower court that Durga Das complainant and Mangi Ram accused put forward separate claims as to the ownership of the ornament. The learned Magistrate considered their claims and passed an order that Manhor Das was entitled to the possession of the gold locket, because it was pledged with him by Mangi Ram, because he had produced a receipt to that effect before the police during the course of investigation. The learned Magistrate, however, ordered that the gold locket be delivered to Manohar Das upon his furnishing a personal bond in the amount of Rs. 1,500/-, with one surety in the like amount with a stipulation to produce the said ornaments before the court as and when required. Aggrieved by this order, Durga Das filed an appeal under S. 520, old Cr. P. C. in the court of the Sessions Judge, Pali. During the pendency of the appeal, Durga Das died and his wife Ganga Bai and daughters Kamla and Devi presented an application for being impleaded in the appeal as legal representatives of the deceased. As stated earlier, the learned Sessions Judge dismissed their application and passed an order that the appeal has abated on the death of the appellant. Mst. Ganga Bai, Kamla and Devi have, therefore, challenged this order by way of revision-petition in this Court. I have carefully gone through the record and heard Mr. S. D. Rajpurohit, for the petitioners and Mr. R. P. Vyas appearing on behalf of Manohar Das. It has been contended before me on behalf of the petitioners that S. 431 of the old Code of Criminal Procedure has no application to an appeal filed under S. 430 thereof, and that the Sessions Judge, Pali, committed an error of law in holding that the appeal filed by Durga Das had abated upon his death. The above contention is not devoid of force. S. 431, old Cr. P. C. reads as follows : - "abatement of appeals - Every appeal under section 411 A, sub-section (2) Or section 417 shall finally abate finally abate on the death of the accused, and every other appeal under this Chapter (except an appeal from a sentence of fine shall on the death of the appellant. " From a bare perusal of this section, it is clear that it deals with the question of abatement of appeals. It clearly lays down that an appeal under S. 417 or under S. 417-A (2) abates on the death of the accused and every other appeal under Chapter XXXI old Cr. P. C. except an appeal from a sentence of fine shall abate on the death of the appel-lant. It will not be out of place to mention that an appeal under S. 520, old Cr. P. C. is not an appeal under Chapter XXXI. Hence such an appeal will not abate on the death of the appellant. The learned Sessions Judge erroneously held that the appeal had abated on the death of Durga Das. Mr. R. P. Vyas appearing on behalf of Manohar Das vehemently contended before me that there was no provision in the old Criminal Procedure Code for substitution of anyone in place of a deceased appellant and, therefore, the learned Sessions Judge rightly dismissed the application of the petitioners for being impleaded as legal representatives of Durga Das deceased in the appeal. It is undoubtedly true that there is no specific provision for legal representatives of the deceased appellant to be brought on record in an appeal under S. 520, old Cr. P. C. , but the court may by way of caution order there substitution in place of the deceased appellant or may dispose of the appeal in accordance with law, without impleading them as parties to the appeal. Apart from this, a special jurisdiction is given to the courts of appeal, confirmation, reference or revision under S. 520, old Cr. P. C. to modify, alter or annul orders passed by a subordinate court under S. 517, 518, 519 thereof and to make any further order as it thinks fit. It is, therefore, not permissible to read into it the provisions of abatement regarding appeals. It has been further urged by Mr. R. P. Vyas on behalf of Manohar Das, non-petitioner, the Sessions Judge is not empowered to decide the question that may arise as to who are the legal representatives of the appellant for the purpose of this appeal and, therefore no substitution of the legal representatives in place of the deceased appellant is possible in such cases. The above contention is not acceptable, because all that the appellate court has to see is that all interested persons claiming to be representatives of the deceased appellant may come on the record. The Court is not required to go into the question and decide as to who are the legal representatives of a deceased. In the instant case, there is no dispute inter se between the persons sought to be impleaded as to who is or who is not the legal representative of Durga Das. Out of the petitioners, Ganga Bai is the widow of Durga Das and Kamla and Devi are his daughters. No other person is claiming to be legal representatives of the deceased. Hence, there is no such difficulty as envisaged by the learned counsel for the non-petitioners in impleading the petitioners as legal representatives of the deceased appellant. Mr. R. P. Vyas contended before me that an objection has been taken in the civil suit that the petitioners are not legal representatives of the deceased Durga Das and that the observations made by me in this revision-petition pertaining to the legal representatives of Durga Das may prejudice the decision of the civil court on this point. The above contention has no force. The apprehension in the mind of the learned counsel for the non-petitioner is imaginary rather than real. However, as an abundant caution, 1 would like to mention here that it will be open for the civil court to decide this question, if raised before it, upon materials or evidence placed on the record before it uninfluenced by observations made by me in this case pertaining to the legal representatives of Durga Das deceased. Lastly, Mr. R. P. Vyas, learned counsel for the non-petitioner Manohar Das argued before me that the proceedings may be stayed till the disposal of the civil suit instituted by the petitioners for ownership and recovery of possession of the gold locket (Timniya ). The above contention also has no force, because these proceedings cannot be stayed merely because a civil suit is pending in a civil court between the parties relating to ownership and recovery of possession of this ornament. Besides, the ultimate decision of the civil suit may take long time during which the proceedings, if stayed, shall unnecessarily remain suspended. The result of the above discussion is that this revision-petition is accepted the order of the Sessions Judge, Pali, dated 16th October, 1975, is set aside and the case is sent back to his Court for decision of the appeal after substitution of the names of the petitioners in place of the deceased appellant. . ;