The Supreme Court of India Criminal Appellate Jurisdiction Criminal Appeal No.
473 of 1998
Shankar Prasad Ghosh (Dead) Vs The State of Bihar & ANR.
Dr. Arijit Pasayat, J
One Shankar Prasad Ghosh had filed the present appeal before this Court
questioning correctness of the judgment rendered by a learned Single Judge of
the Patna High Court. By a common judgment the learned Special Judge (CBI),
South Bihar, Patna had found each of the accused persons guilty of offence
punishable under Sections 409, 477A read with Section 34, 467 and 471 of the
Indian Penal Code, 1860 (in short the IPC'). It also found the accused guilty
of offence punishable under Section 5(2) read with Section 4(1)(c) and Section
5(1)(d) of the Prevention of Corruption Act, 1947 (in short the `Act').
Various custodial sentences and fine were imposed. The judgment of the Special
Judge was assailed in appeal before the High Court which dismissed the appeal.
High Court upheld the conviction but altered the sentences to the period
already undergone. The fine amount was, however, maintained alongwith default
In this case leave was granted on 20.4.1998 but no stay was granted. During the
pendency of the appeal, appellant Shankar Prasad Ghosh died on 15.5.2000. After
about 5 years applications have been filed purportedly in terms of Section 394
(2) of the Code of Criminal Procedure, 1973 (in short the Code') to bring on
record the legal heirs of the deceased appellant for the purpose of continuance
of the appeal. On 2 5.3.2007 it was directed that the applications shall be
considered when the appeal will be taken up for hearing.
Learned counsel for the respondent-State submitted that there is no scope for
accepting the applications. Section 394 has no application to the appeal before
the Supreme Court. In any event, time statutorily prescribed is 30 days. In the
instant case, applications have been filed nearly 5 years after the date of the
death of the appellant-Shankar Prasad Ghosh. Even no explanation has been
offered as to why the applications were filed after such a long time.
Accordingly, he submitted that there is no scope for condoning any delay beyond
the fixed period of 30 days.
In State of A.P. v. S. Narasimha Kumar and Ors. (2006
SCC 683), it was noted as follows:
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 3 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.).
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.
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 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
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 accusedbecomes 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
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 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).
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 within 30 days for leave to continue the appeal. This present application
is filed nearly after a period of 10 years.
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.
is relied on in the petition wherein it has been held thus: (SCC p. 145, para
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."
In Harnam Singh v. The State of Himachal Pradesh (1975 (3) SCC 343 at paras 7,
14 and 15) it was observed as follows:
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 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.
xx 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.
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.
In Bondada Gajapathy Rao v. State of A.P. 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 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
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.
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.
ARIJIT PASAYAT) 8
Delhi, June 13, 2008