Subbiah Gounder vs Kandaswamy Gounder

This appeal raises an important question as to whether on the death of the complainant-appellant in an appeal against acquittal, admitted u/s

417, Criminal Procedure Code, there will be an abatement of the appeal whether his legal representatives could be allowed to come on record or

substituted to prosecute the appeal further.

Section 431 of the Criminal Procedure Code which deals with abatement reads thus:--

Every appeal u/s 411-A, sub-section (2), or Section 417, shall finally abate on the death of the accused, and every other appeal under this

Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant."" Section 411-A provides for an appeal against

the conviction or acquittal of a prisoner, in cases dealt with by the High Court in the exercise of its original criminal jurisdiction. Section 417

provides for appeals in cases of acquittal by other Courts. Where an original or appellate Court other than the High Court, orders an acquittal, the

State Government may direct the Public Prosecutor to present an appeal to the High Court. Clause (3) of this section provides for such appeals to

the High Court in cases instituted upon complaints. But, he will have to obtain the special leave of the Court. Somasundaram, J., in the decision in

Raman v. Murugan, 1958 MLJ 709 = AIR 1958 Mad 624 has held that in the absence of any specific provision in the Criminal Procedure Code

for the legal representative of a deceased appellant to be brought on record, a criminal appeal cannot be prosecuted after the death of the

appellant. This he has said because there is no provision in the Code for bringing on record the legal representatives in an appeal where the

appellant dies.

Under Section 431, in cases of appeals coming within the purview of Section 417, Criminal Procedure Code, there will be an abatement only on

the death of the accused. There is no reference to any abatement in this Section, in a case where the complainant-appellant dies. True, the latter

clause in this Section relates to an abatement in cases of every other appeal under the Chapter (except an appeal from a sentence of fine).

Obviously, this clause refers only to cases of appeals filed by persons convicted of offenses. Where the accused in a case has been sentenced only

to fine and he dies after filing an appeal, this appeal does not abate. This is because the legal representatives of the deceased convicted person are

interested in procuring a reversal of a sentence of fine or of forfeiture of property, which would naturally affect the property of the deceased in their

hands. The survival of a pecuniary interest which will affect the estate has been the basis of the jurisdiction for permitting the prosecution of the

appeal even after the death of the appellant.

Section 431 clearly provides for such cases and it has limited the survival of the appeals only to appeals against a sentence of fine. As observed by

their Lordships of the Supreme Court in Pranab Kumar Mitra Vs. The State of West Bengal and Another, the first part of the section 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. The second part of the section deals with appeals by convicted persons or by a person who has been

deprived of any interest 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.

Abatement is a creature of the statute and there is no provision in Section 431 for any abatement in a case where an appellant-complainant dies

after the admission of the appeal. The section specifically states that there can be an abatement only in cases of the death of the accused. Where

the complainant-appellant dies during the pendency, the Courts will have to dispose of the matter as indicated in Sections 431, 422 and 423 of the

Code. Nanilal Samanta Vs. Rabin Ghosh, . Therefore, the death of the appellant-complainant in a case against an order of acquittal u/s 417(3) of

the Criminal Procedure Code, does not bring about the consequence of abatement of such appeals not does such death relieve the appellate Court

of the duty to dispose of the appeal in accordance with Section 423 of the Criminal Procedure Code. There is neither any necessity nor any scope

for substitution or for the addition of any legal representative in the place of the appellant. The appeal must be disposed of on merits.

So far as the case is concerned on merits, there is no case for interference. The appellant complained that the respondent, his brother,

trespassed into his land at 6-30 a.m. on 9th April, 1967 and caused him hurt, by beating him in the back. Dr. Andal (P.W. 4) had seen on his

person a contused swelling on the back with a stick mark on the dorsal spine. This was on 11th April, 1967, at 3-30 p.m. There is no explanation

as to why the appellant delayed going to the Medical Officer, for more than 2 1/2 days. The complaint itself was presented in Court on 19th April,

1967. The earlier complaint which is said to be in existence has not been produced. The learned Magistrate was not impressed with the evidence

given by P.W. 2. The respondent had an injury and the appellant''s suggestion that he sustained it when he fell down, is hardly credible. The

acquittal is correct and there is no case for interference.

The appeal fails and the same is dismissed. C. M. P. No. 19 of 1970 which is for bringing on record the legal representatives is also dismissed.

Appeal dismissed.