LexHARI PRASAD CHHAPOLIA (DEAD) versus UNION OF INDIA
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(2008] 10 S.C.R. 62 A HARi PRASAD CHHAPOLIA (DEAD) v. UNION OF !NOIA (Criminal Appeal No.82 of 2002) B JUNE 20, 2008 [DR. ARIJIT PASAYAT AND G,S. SJNGHVl1 JJ.] Code of Criminal Procedure, 1973: c s. 394, proviso - Appeal - Abatement of, on death of ap- pellant - Leave to continue the appeal by relative - Delay in - Effect of - On facts, Conviction of appellant under t!:e Gold Act challenged before Supreme Court - Death of appellant during pendency of appeal - Matter adjourned several times at request of counsel for allowing substitution of relative - Ap- D plication for substitution filed after one year -· No sufficient cause shown for delayed presentation - Held: Appeal sha!/ abate - Gold (Control) Act, 1968. s. 394 ..,... Applicability of, to appeal before Supreme Court E - Held: Applicable. The appellant was convicted for offences puni!it'tabte under Customs Act, 1962 and under Gold (Control) Act, 1968 by the trial Court. The High. Court set aside the con- viction for the offence punishable under Customs Act and F upheld the conviction for the offence punishable under Gold Act. Appellant filed leave to appeal which was granted by this Court by order dated 17 .1.2002. The matter was adjourned to 12.6.2007 when it was mentioned that the G appellant has died. The matter was again adjourned and on 25.10.2007 ,_ six weeks' time was granted to the counseJ to file vakalatnama and memo of appearance on behalf of legal H 62 HARi PRASAD CHHAPOLIA (DEAD) v. UNION 63 OF INDIA .,._ heirs of the deceased appellant. No application was filed A for bringing on record the legal heirs of the deceased ap- pellant. On 4.1.2008, application was filed for substitu- tion for bringing legal heirs of the appellant on record along with the application for condonation of delay. The only ground indicated in the application seeking condo- B nation was that the legal heirs of the appellant were not aware that the death of their father had to be intimated to the counsel for preparing and filing the application for sub- stitution and when they came to know about this require- ment they contacted their counsel and filed the applica- C tiQn. The respondent submitted that there is no scope for accepting the application; that s.394 Cr.P.C. has no appli- cation to an appeal before the Supreme Court; that in any event, time statutorily prescribed is 30 days and applica- D ~ion has been filed nearly after one year of the death of the appellant and also no explanation was offered for delayed application and therefore there was no scope for condoning delay beyond the period of 30 days. Dispos_ing of the appeal, the Court E HELD: 1. S.394 Cr.P.C. 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 con- viction and sentence of death or of imprisonment and the F appellant dies during the pendency of the appeal, any of his relatives, which expression is defined by the expla- nation 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 G appeal shall not abate. [Para 5] [68- B & C] 2. The principles embodied in s.394 Cr.P.C. 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 .. In the instant H 64 SUPREME COURT REPORTS (2008] 10 S.C.R. A case, the application was filed nearly after one year. Sev- eraltimes the matter was adjourned at the request of coun- sel who appeared for the original appellant. The plea that the legal heirs did not know the requirement is clearly With- out any substance. The appeal has abated on the death B of the appellant. [Paras 7, 8] [70-8, C & D] Q,. ,.. , S. V Kameswar Rao and Anr. v. State (A. C.B. Police, ~ c D E Karnoo/ District, Andhra Pradesh) (1991) Supp 1 SCC 377 - relied on. State of A.P v. S. Narasimha Kumar and Ors. (2006) 5 sec 683 and Harnam Singh V. The State of Himachal Pradesh (1975) 3 SCC 343 - referred to. CRIMINAL APPELLATE JURISDICTION : Criminal Ap- peal No. 82 of 2002 From the final Judgment and Order dated 10.9.2001 of the High Court of Orissa at Cuttack in Crl. Revision No. 470 of 1994 V.K. Monga for the Appellant. P.P. Malhotra, A.S.G., Vikas Sharma, B.V. Balaram Das and C.V. Subba Rao for the Responden
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