IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.890 of 2008 KALPANA RANI Versus THE STATE OF BIHAR ----------- 2 24.3.2009 The petitioner is aggrieved by order dated 17.7.2008 passed by the Additional Sessions Judge III, Patna in Cr. Appeal No.215 of 1998 whereby she has been disallowed to contest the appeal preferred against the conviction by her late father Prem Kumar Prasad who was convicted for an offence under section 409 of the Penal Code passed in G.R.No.1111/89, Tr.No.12/1998. Before I take up the issue, it would be necessary to notice the fact of the case in brief. One Prem Kumar Prasad, father of the petitioner was an employee of Bihar State Handloom and Handicrafts Corporation Limited which is a State within the meaning of Article 12 of the Constitution of India. A case under section 409 of the Penal Code was instituted against him for misappropriating money of the Corporation. It is submitted that a departmental proceeding was also initiated against her father. The police after investigation submitted charge sheet under section 409 of the Penal Code and the father of the petitioner was put on trial bearing trial no. Tr.No.12/1998 arising out of G.R.No.1111/89. The father of the petitioner was ultimately convicted under section 409 of the Penal Code and sentenced to under go R.I. for two years and a fine of Rs.1000/- and in default to under go further S.I. for six months. It appears that during the pendnecy of the appeal Prem 2 Kumar Prasad died and his widow Shail Kumari filed an application under section 394(2) Cr.P.C. for leave to contest the appeal. On 31.7.2004 leave was granted. As it would behold, the widow also died on 30.9.2004 which caused the present petitioner to file an application under section 394(2) Cr.P.C. for leave to contest the appeal. It appears that neither the petitioner pressed the application seeking leave to contest the appeal nor any order was passed on it by the Appellate Court. Finally the Appellate Court by order dated 17.7.2008 observed that whole appeal has abated, as the petitioner has not pressed the application for grant of leave to contest the appeal. Section 394(2) Cr.P.C. provides that any other appeal under this Chapter except an appeal from a sentence of fine shall finally abate on the death of the appellant provided there is an appeal against the conviction and sentence of death or of imprisonment by any of his near relatives within thirty days of the death of the appellant, apply for leave to continue the appeal. The provision further provides that if leave is granted, the appeal shall not abate. After the death of the original appellant leave was granted to the mother of the petitioner to continue with the appeal. However, the mother of the petitioner too died. Thereafter the petitioner without any undue delay too filed an application for leave to continue the appeal. It is not a case where an application was not filed by the petitioner within time for grant of leave to continue the appeal. The Appellate Court has earlier found that it was an appropriate case in which leave is to be granted to a family member to continue the appeal. 3 KHAN There being a decision of court earlier that this was a fit case in which leave be granted, the Appellate Court ought to have granted leave to the petitioner to continue the appeal though the same was not earlier pressed and remained pending. In the circumstances, this court set aside the order dated 17.7.2008 passed by learned Additional Sessions Judge, III, Patna in Cr.Appeal No.215 of 1998. As the appeal is of the year 1998, this court observes that the same should be disposed of within three months from the date of receipt/production of a copy of this order. The petitioner this time should be more vigilant and cooperate so that the appeal is disposed of at the earliest. With the aforesaid observations and directions, this revision application is allowed. (S.P.Singh,J)