Patna High Court - Orders
Shachi Nath Jha@Shashi Nath Jha vs The State Of Bihar Through Vig on 26 October, 2018
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
Patna High Court CR. APP (SJ) No.156 of 2012 (05) 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.156 of 2012
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Shachi Nath Jha @ Shashi Nath Jha, S/O Late Krishna Chandra Jha, R/O
Vill+P.O.+P.S.-Dhamdaha, Distt-Purnia, Presentlty Residing At Flat No.B-
31, Sri Ram Kunj Apartment , East Boring Canal Road, Miss Mandal
Compound, Patna-1.
.... .... Appellant/s
Versus
1. The State of Bihar through Vigilance
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ashutosh Ranjan Pandey
For the Vigilance : Mr. Anjani Kumar- (Law Officer)
Mr. Shailendra Kumar Singh- Advocate
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER
05 26-10-2018Heard learned counsel for the appellant as well as learned Law Officer, Vigilance over I.A. No.2633 of 2018.
2. Vide judgment of conviction and order of sentence dated 07.02.2012, relating to Special Case No.07 of 1998, arising out of Vigilance P. S. Case No.07 of 1998, all the accused namely Kapildeo Narayan Prasad Singh, Vishwanath, Shashi Nath Jha @ Sachi Nath Jha, Deep Narayan, Anil Kumar Singh have been convicted and sentenced for, against which, so many appeals cropped up. It is further evident that one of the appellant, Kapildeo (Cr. Appeal (S.J.) No.149 of 2012) has died, whereupon his legal heirs had filed I.A. No.2443 of 2014, I.A. No.2559 of 2014 to allow to pursue with the appeal and further, to grant leave by Patna High Court CR. APP (SJ) No.156 of 2012 (05) 2 condoning the delay and the same was allowed vide order dated 22.12.2014.
3. Appellant Sachi Nath @ Sashi Nath Jha has also died. He died on 02.03.2018. His wife Nirmala Jha has filed I.A. No.2633 of 2018 to allow her impleadment in place of her husband (since deceased) on 11.09.2018, in the background of the fact that in the background of conviction and sentence against her late husband, he was allowed only 90 % of his pension and if she is not going to be allowed to be impleaded, then in that circumstance, she will suffer a lot including infringement of the family pension. So, it has been prayed at her end to allow the I.A. Petition.
4. On the other hand, learned Law Officer, Vigilance has submitted that prayer of the petitioner is not tenable in the eye of law. With regard to prayer made on behalf of legal heirs having been allowed against appellant Kapildeo Narayan (since deceased), Cr. Appeal (S.J.) No.149 of 2012, there was two I.A., the first one for substitution and the second one for granting leave after condoning the delay. So far prayer of petitioner is concerned, it happens to be beyond the period of 30 days without prayer for condonation of delay as well as having no petition to grant leave Patna High Court CR. APP (SJ) No.156 of 2012 (05) 3 and that being so, in light of the principle laid down by the Hon'ble Apex Court in Shankar Prasad Ghosh (Dead) v. State of Bihar and another reported in A.I.R. 2009 SC (Supp.) 447, the prayer is not at all maintainable.
5. Before coming to adjudicate the point, it looks appropriate to have reference of Section 394 of the Cr.P.C., which commands the issue:-
Section 394 Cr.P.C.-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.
Explanation - In this section, "near relative" means a Patna High Court CR. APP (SJ) No.156 of 2012 (05) 4 parent, spouse, lineal descendant, brother or sister.
6. From plain reading of the Section, it is crystal clear that in ordinary course, where no sentence of fine has been inflicted, the appeal is to abate after death of the appellant, while the appeal against the sentence of fine would not. However, the aforesaid eventuality is to be seen under the garb of proviso of Sub-section (2) of Section 394 Cr.P.C., as Sub-section 2 of Section 394 of the Cr.P.C. is being commanded by the proviso. Proviso has been introduced subsequently. It has got a bearing, purpose. Judgment of conviction and sentence in some cases may adversely affect upon future prospect of the heirs and having no scope to challenge, found helpless with the ultimate consequence to face the rigor. By presence of such provisions, even the judgment of conviction and sentence could be assailed by the legal heirs irrespective of the fact that no sentence of fine has been awarded, but for that, the exercise has to be done within 30 days of the death of the appellant with a prayer to grant leave to proceed therewith. Admittedly, I.A. Petition has been filed beyond the period of 30 days and secondly, no petition for leave as well as condonation of delay has been filed.
7. In Girija Prasad (dead) by legal representative vs. Patna High Court CR. APP (SJ) No.156 of 2012 (05) 5 State of M.P. reported in A.I.R. 2007 SC 3106, it has been held:-
"10. On August 1, 2007, when the matter was placed before us for final hearing, it was stated that during the pendency of the appeal, Girja Prasad (original appellant-accused) died. It was stated that Smt. Munni Bai, widow of deceased Girja Prasad had filed an application under proviso to sub-section (2) of Section 394 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) to allow her to continue the appeal by seeking leave of this Court. The said provision confers right on near relatives of the accused who is convicted and sentenced to imprisonment and who dies during the pendency of the appeal to continue the appeal in certain cases by applying to the Court within thirty days of the death of the appellant. Such application was filed by Munni Bai. The Registry of this Court, however, raised an objection that there was delay of 149 days in filing the application. After hearing learned counsel for the parties, we condoned delay, granted the prayer of applicant-Munni Bai and allowed her to continue the appeal. We, thereafter, heard learned counsel for the parties."
8. In Shankar Prasad Ghosh (Dead) vs. State of Patna High Court CR. APP (SJ) No.156 of 2012 (05) 6 Bihar and another reported in (2008) 11 SCC 373, it has been held:-
"4. In State of A.P. v. S. Narasimha Kumar and Ors. (2006 (5) SCC 683), it was noted as follows:
"6. In Bondada Gajapathi Rao v. State of Andhra Pradesh (AIR 1964 SC 1645) three-judge Bench of this Court was dealing with the situation as to whether appeal by special leave against sentence of imprisonment abates on the death of the accused/appellant. Three separate judgments were rendered by the Hon'ble Judges. The principles as can be culled out from the said decision are as follows: (though rendered in the context of the Old Code are equally applicable under the Cr.P.C.). (1) Section 431 of the Old Code does not apply proprio vigore to a case of appeal filed with the special leave of the Supreme Court granted under Article 136 of the Constitution of India, 1950 (in short the `Constitution') when the appellant-accused dies pending the appeal. (2) But where the appeal is against sentence of fine, the appeal may be permitted to be continued by the legal representatives of the deceased appellant accused.
There is no provision making such appeals abate. If they can be continued when arising under the Old Patna High Court CR. APP (SJ) No.156 of 2012 (05) 7 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.
(3) The principle on which the hearing of a proceeding may be continued after the death of an accused would appear to be the effect of the sentence on his property in the hands of his legal representatives. If the sentence affects that property, the legal representatives can be said to be interested in the proceeding and allowed to continue it.
(4) But where the sentence is not one of fine but of imprisonment, which on the death of the accused becomes infructuous, the sentence does not affect the property of the deceased-accused in the hands of his legal representatives, and therefore, the appeal, in such a case, would abate, upon the death of the accused.
(5) In fact that the accused was a government servant and was under suspension during the trial and the fact that if the conviction and sentence were set aside, his estate would be entitled to receive full pay for the period of suspension, cannot be said to affect his Patna High Court CR. APP (SJ) No.156 of 2012 (05) 8 estate, because, the setting aside of the sentence would not automatically entitle the legal representatives to the salary. It would be extending the principle applied to the case of a sentence of fine, if on the basis of it appeal against imprisonment is allowed to be continued by the legal representatives after the death of the appellant and for such an extension there is no warrant. Reference was made to Pranab Kumar Mitra vs. State of West Bengal and Anr. (AIR 1959 SC 144).
5. In S.V. Kameswar Rao and Anr. v. State (A.C.B. Police, Karnool District, Andhra Pradesh) (1991 Supp (1) SCC 377), it was inter-alia observed as follows:
"5. Section 394 of the Code of Criminal Procedure reads that every appeal shall finally abate on the death of the appellant. The proviso to that section says 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 relatives, which expression is defined by the explanation appended to this proviso may within 30 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 the present case, none of the relatives of the deceased within the term of the explanation to the proviso has approached this Court Patna High Court CR. APP (SJ) No.156 of 2012 (05) 9 within 30 days for leave to continue the appeal. This present application is filed nearly after a period of 10 years. No explanation is given in this application for not approaching the court within that prescribed period and no sufficient cause is shown for condonation of such undue and inordinate delay of 10 years. A decision of this Court in P.S.R. Sadhanantham v. Arunachalam (1980) 3 SCC 141 is relied on in the petition wherein it has been held thus: (SCC p. 145, para 7) "7....Article 136 is a special jurisdiction. It is residuary power; it is extraordinary in its amplitude, its limit, when it chases injustice, is the sky itself."
6. In Harnam Singh v. The State of Himachal Pradesh (1975 (3) SCC 343 at paras 7, 14 and 15) it was observed as follows:
"7. The appeal before us was filed by special leave granted under Article 136 of the Constitution and is neither under Section 411-A(2) nor under Section 417 nor under any other provision of Chapter XXXI of the Code. Plainly therefore, Section 431 has no application and the question whether the appeal abated on the death of the appellant is not governed strictly by the terms of that section. But, in the interests of uniformity, there is no valid reason for applying to Patna High Court CR. APP (SJ) No.156 of 2012 (05) 10 appeals under Article 136 a set of rules different from those which govern appeals under the Code in the matter of abatement. It is therefore necessary to find the true meaning and scope of the provision contained in Section 431.
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14. If this be the true interpretation of Section 431, there is no reason why the same principle ought not to be extended to criminal appeals filed in this Court under Article 136 of the Constitution. Accordingly the widow of the deceased appellant who has been brought on the record of the appeal as his legal representative is entitled to continue the appeal as the sentence of fine directly affects the property which would devolve on her on the death of her husband.
15. In Bondada Gajapathy Rao v. State of A.P. AIR 1964 SC 1645 the appellant was convicted by the High Court under Section 302 of the Penal Code and was sentenced to imprisonment for life. He filed an appeal in this Court by special leave but died during the pendency of the appeal. His sons and daughter applied for substitution as his legal representatives contending that the conviction of their father had resulted in his removal from Government service and if the conviction were set aside the estate will be able to claim the Patna High Court CR. APP (SJ) No.156 of 2012 (05) 11 arrears of salary from the date of conviction till the date of his death. This Court declined to permit the legal representatives to continue the appeal on the ground that the claim on the strength of which they sought permission to continue the appeal was too remote. This decision is distinguishable as the appeal was not from a sentence of fine and as the interest of the legal representatives was held to be contingent and not direct. Even if the conviction were set aside, the legal representatives would not have automatically got the arrears of salary due to their father."
7. In view of what has been stated by this Court in the afore-noted cases the principles embodied in Section 394 of the Code can be pressed into service in appeals before this Court. It is true that the period of 30 days has been statutorily fixed for making an application by the legal heirs. In the instant case, the applications were filed after about 5 years. We need not go into the question as to whether there is scope for condonation of delay as no explanation has been offered for the delayed presentation. In that view of the matter, the observations of this Court in Kameswar Rao's case (supra) are clearly applicable. The appeal has abated on the death of the appellant-Shankar Prasad Ghosh and is disposed of accordingly."
Patna High Court CR. APP (SJ) No.156 of 2012 (05) 12
9. From the record, it transpires that no petition for grant of leave as well as for condonation of delay has been filed and further, after going through the I.A. Petition also, it is evident that no such prayer has been made, save and except, for allowing the substitution, whereupon same is found defective one as it did not satisfy the requirement as prescribed the proviso under Section 394(2) of the Cr.P.C., whereupon would not be allowed.
10. Consequent thereupon, I.A. No.2633 of 2018 is rejected.
(Aditya Kumar Trivedi, J) Vikash/-
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