Fakira Sahu vs State of Orissa

Accordingly Clause 404 of the Bill Provides that an appeal against conviction and sentence of imprisonment will not abate on the Appellant''s death if his near relatives obtain the leave of Court to continue the appeal. However, the proviso and the Explanation to Section 394 are newly added. Old Section 431 has been bifurcated, the first part is reproduced in Sub-section (I) and the second part in Sub-section (2). Sub-section (I) of Section 394 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. Sub-section (2), deals with appeals by convicted persons or by a person who has been deprived of any property, 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. 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 appeals and if leave is granted, the appeal shall abate. The explanation appended to Sub-section (2) of Section 394 provides that a ''near relative'' for the purpose of the said Section means a parent, spouse, lineal descondant, brother or sister. No application has been received from any near relative for continuing the appeal. In that view of the matter, the appeal abates.

The Jail Criminal Appeal is accordingly disposed of.

B.P. Das, J.

I agree