Banshidhar Swami vs Union of India

Dr. Sachin Acharya, learned Special Public Prosecutor representing the respondent Union Of India through CBI has moved an application for abatement of the appeal on the ground that the appellant Banshidhar Swami passed away on 05.03.2017.

Shri J.K. Chanda, learned counsel for the appellant has moved an application seeking substitution of the name of the appellant by his legal representatives. The application is highly delayed. Shri Chanda has also moved an application for condonation of delay occasioned in filing of the application but reasons mentioned therein are absolutely untenable and inculpable. As per Section 394 (1) Cr.P.C. every appeal under this Chapter, except an appeal against a conviction and sentence of death or of imprisonment which shall finally abate on the death of the appellant, if the appellant dies during the pendency of the appeal, any of his near relative 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. In addition to the fact that the application has not been moved by using the relevant provision of law, the Code does not give any power to the Court for condonation of delay against abatement. Argued, even if it is to be assumed that any such power exists the same can only be exercised within a reasonable period. In the case at hand, more than 2 years and 3 months have lapsed since the appellant died. In the application under Section 5 of the Limitation Act, all that is mentioned is that Smt. Basanti Swami was not aware about the appeal and that Dr. Ujjawal was aware of the appeal but he was not aware that LRs of the deceased can be impleaded as party to continue the appeal. Manifestly, ignorance of law cannot be a justification to condone the delay.

In this background, I am of the view that the appeal has abated. Accordingly, the application for substitution of legal representatives is dismissed. The appeal is dismissed by abatement.