LexKHEM SINGH (D) THROUGH LRS versus STATE OF UTTARANCHAL (NOW STATE OF UTTARAKHAND) & ANOTHER ETC.
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[2025] 7 S.C.R. 2108 : 2025 INSC 1024 Khem Singh (D) Through LRs v. State of Uttaranchal (Now State of Uttarakhand) & Another Etc. (Criminal Appeal No(s). 1330-1332 of 2017) 31 July 2025 [B.V. Nagarathna* and K.V. Viswanathan, JJ.] Issue for Consideration During pendency of these appeals, son of original appellant (since deceased) filed an application seeking setting aside of the abatement and for substitution. Whether the applicant is entitled to be substituted in place of the original appellant so as to continue to prosecute these appeals. Headnotes† Code of Criminal Procedure, 1973 – Proviso to s.372 – The applicant contended that having regard to the proviso to s.372 of the CrPC, the substitution applications may be allowed by condoning the delay in filing the said application – He further contended that the original appellant was aggrieved by the acquittal of accused nos.4, 3 and 2 respectively by the High Court when, in fact, they had been convicted and sentenced to life imprisonment and fine by the Sessions Court and hence, the original appellant herein preferred these appeals: Held: The expression ‘right to prefer an appeal’ in the proviso to s.372 CrPC cannot be limited to mean ‘only the filing of an appeal’ – Mere filing of an appeal in the absence of prosecution of an appeal is of no avail – It does not fulfill the object with which the proviso has been added to s.372 CrPC – Therefore, the expression ‘the right to prefer an appeal’ to also include the ‘right to prosecute an appeal’ – Any curtailing of the legal right to prosecute an appeal on the death of an original appellant by his * Author [2025] 7 S.C.R. 2109 Khem Singh (D) Through LRs v. State of Uttaranchal (Now State of Uttarakhand) & Another Etc. legal heir would make the proviso to s.372 CrPC wholly redundant and in fact may result in a situation which is contrary to the entire object with which the Parliament had inserted the proviso to s.372 CrPC – In this context, it is also relevant to note that the Parliament has been conscious to expand the definition of the word ‘victim’ to not only include the victim himself who had suffered the loss or injury but also to include his legal heir – There is no reason to curtail the right of a legal heir, who had preferred the original appeal, to be denied the right to prosecute the appeal – The argument of the applicant that as heir of the original appellant, who was an injured victim, he can prosecute these appeals, is accepted – The applicant, who is seeking substitution, is the legal heir of the victim who had preferred the appeal before this Court and is also an injured victim – Therefore, the applicant is being permitted to be substituted in place of the original appellant as heir of the original appellant (who was a victim in the incident) – In other words, even if the applicant was not an injured victim in the said incident but has sought to prosecute these appeals as heir of the injured victim (original appellant), he is permitted to do so – The delay in filing the application for seeking setting aside of the abatement is condoned – The abatement is set aside. [Paras 9.3, 11, 12] Constitution of India – Art.136 – When during pendency of special leave petition or criminal appeals, the appellant dies, whether the heir of the appellant must be given an opportunity to prosecute the appeal: Held: Art.136 of the Constitution deals with Special leave to appeal by the Supreme Court – Sub-clause (1) of Art.136 begins with a non-obstante clause and confers discretion on the Supreme Court to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India – When this power u/Art.136 is exercised by the Supreme Court by granting leave, the special leave petition would get converted into a criminal appeal – If during the pendency of the special leave petition or the criminal appeal, the appellant dies, the heir of the appellant must be given an opportunity to prosecute the appeal irrespective of whether the heir is a victim of the criminal offence – More significantly, the appeal heard pursuant to 2110 [2025] 7 S.C.R. Supreme Court Reports Art.136 of the Constitution is not an appeal under Chapter XXIX CrPC – In the circumstances of the present case, the applicant, being heir of the victim, has the right to continue these appeals i
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