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Ram Ishwar Chaudhary And Ors. vs The State Of Bihar on 5 July, 1985 cites

State Of Maharashtra vs Eknath Yeshwant Pagar And Anr. on 7 January, 1981

In order to give effect to the order of conviction recorded by a Bench of this Court against the petitioners, it is indeed this Court's duty to take notice of the abatement. The counsel who represented the petitioners as also the deceased respondent, Suryadeo Choudhary, did not inform the Court about his death, unlike information given to the Court in the case of State of Maharashtra 1981 Cri LJ 1284(3) (supra). The Code of Civil Procedure contains elaborate provisions as to when and how abatements may take effect and who may apply for setting aside abatement. The 1976 Amendment Act to the said Code has introduced responsibility upon the counsel representing the party to inform, about his or their death to the court, so that the heirs and legal representatives may be substituted. The Code of Criminal Procedure contains no such provision, except stating under Section 394 of the Code that the appeal shall finally abate on the death of the accused or on the death of the appellant, as the case may be. The court has no means to know about the death or otherwise of the accused. Then informed by the counsel about the death of the accused, it cannot, in its judicial discretion, proceed with the hearing of the appeal without recording abatement. If it is not informed about the death and it accordingly proceeds to decide and record its order, the error is not in its judgment but in the absence of the information by the counsel representing the party and in its ignorance about the death. The pronouncement against a dead person, as I have already noticed, in such a situation, is not act of judicial discretion but mistake due to clerical recalcitrance on the part of the parties, who alone could/can inform it about such a death.
Supreme Court of India Cites 0 - Cited by 14 - S M Ali - Full Document
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