CR.A/1994/2005 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1994 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ========================================================= STATE OF GUJARAT - Appellant(s) Versus VITTHALBHAI SOMABHAI - Opponent(s) ========================================================= Appearance : MR DIPEN DESAI, ADDL. PUBLIC PROSECUTOR for Appellant(s) : 1, MR YATIN SONI for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 19/02/2008 ORAL JUDGMENT CR.A/1994/2005 2/6 JUDGMENT (Per : HONOURABLE MR.JUSTICE M.R. SHAH) 1. This appeal is placed on Board on the note filed by Mr.Yatin Soni, learned Advocate appearing on beahlf of the respondent – original accused – Vitthablbhai Somabhai Patel (now deceased) for an appropriate order for abatement of criminal appeal on his death on 03.01.2008. Death certificate of the original accused – Vitthalbhai Somabhai Patel who has expired on 03.01.2008 is placed on record. 2. It appears that said certificate has been issued by the appropriate authority of Boravi Nagarpalika confirming that original accused – Vitthalbhai Somabhai Patel has expired on 03.01.2008. 3. This is an appeal under Section 378(1)(3) of the Criminal Procedure Code ('Cr.P.C.' for short) challenging the judgment and order of acquittal dated 30.10.2004 passed by the learned Special Judge, Fast Track Court No.6, Mehsana in Special Case (ACB) No.3 of 1999 acquitting the respondent – original accused – Vitthalbhai Somabhai Patel, Assistant Director of Agriculture, Mehsana for the offences punishable CR.A/1994/2005 3/6 JUDGMENT under Sections 7, 13(1)(d)(1)(2)(3) and Section 13(2) of the Prevention of Corruption Act. 4. After the admission of the present appeal, original accused has expired on 03.01.2008. Section 394 of the Cr.P.C. provides that every appeal under Sections 377 or 378 shall finally abate on the death of the accused. As per sub-section (2) of Section 394 'every other appeal under Chapter – XXIX (except an appeal from a sentence of fine) shall finally abate on the death of the appellant'. However, as per proviso to Section 394 where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendencey 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 be abated. Thus, right to continue the appeal has been provided to the near relatives of the accused who has been convicted and sentence of death or of imprisonment. Such a situation is not in the present appeal. Present appeal is under Section 378 of the Cr.P.C. by CR.A/1994/2005 4/6 JUDGMENT the State against the judgment and order of acquittal. Considering section 394 of the Cr.P.C. on death of the accused every appeal under Section 377 or 378 shall finally abate. Final abatement means there is no discretion with the Court and even there is no question of revival. It appears that the intention of the legislature is to put an end and there is no question or scope of revival as the appeal is to be disposed of as abated finally. However, at the same time, there is no decision on merits confirming the judgment and order of acquittal. In an appeal against the order of acquittal, on the death of the accused considering Section 394 of the Cr.P.C., the Court has thereafter no jurisdiction to decide; consider the appeal and the judgment and order impugned in the appeal on merits. The Court has no other discretion but has to dismiss the appeal as abated on the death of the accused in an appeal under Section 378 of the Cr.P.C. against the judgment and order of acquittal. 5. Under the circumstances, as the respondent – original accused has expired on 03.01.2008 during the CR.A/1994/2005 5/6 JUDGMENT pendency of the present appeal, considering provisions of Section 394 of the Cr.P.C., this appeal is ordered to be abated. 6. However, at the same time it is also observed that while disposing of this appeal as having abated, this Court has not been able to consider the appeal and impugned judgment and order on merits in view of the provisions of Section 394 of the Cr.P.C., therefore, it may not be construed that the judgment and order passed by the learned trial Court acquitting the respondent – accused is confirmed on merits. The heirs of the deceased shall not be entitled to consequential other benefits, if any, automatically on disposal of the present appeal as having abated and consequently confirming the judgment and order passed by the learned trial Court (not on merits). The heirs of the deceased accused persons shall not be permitted to claim arrears of wages only on the ground that the appeal has been abated on account of death of accused – respondent, automatically. At this stage, decision of the Hon'ble Supreme Court in the case of State of T.N. v/s. CR.A/1994/2005 6/6 JUDGMENT T.Thulasingam and ors. reported in 1994 Supp (2) SCC 405 (para – 83) is required to be referred to. 7. With these, present appeal is dismissed as having abated. [J.R.Vora,J.] [M.R.Shah,J.] satish