Supreme Court Guidelines

Appeal – Abatement

As Summarized in State of Andhra Pradesh v. S. Narasimha Kumar,

AIR 2006 SC 2924: (2006) 5 SCC 683

In Bondada Gajapathi Rao v. State of Andhra Pradesh, AIR 1964 SC 1645 three-Judge Bench of the Supreme 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 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 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.

Source: M A Rashid

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