SHRI SHANKAR PRASAD GHOSH (DEAD) versus THE STATE OF BIHAR & ANR.

Citation: [2008] 9 S.C.R. 1163 · Decided: 13-06-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off
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Judgment (excerpt)

[2008] 9 S.C.R. 1163 
SHRI SHANKAR PRASAD GHOSH (DEAD) 
A 
v 
THE STATE OF BIHAR & ANR. 
(Criminal Appeal No.473 of 1998) 
JUNE 13, 2008 
B 
1 
[DR. ARIJIT PASAYAT AND P.P. NAOLEKAR, JJ.] 
r 
Code of Criminal Procedure, 1973: 
s. 394, proviso - Appeal - Abatement of, on death of ap- c 
pellant - Leave to continue the appeal by relative - Delay in 
- Effect of - On facts, Conviction of appellant under Penal 
Code and Prevention of Corruption Act challenged before 
Supreme Court - Death of appellant during pendency of ap-
peal - Application for substitution filed after five years - No 
sufficient cause shown for delayed presentation - Held: Ap-
D 
peal shall abate. 
s. 394 - Applicability of, to appeal before Supreme Court 
-
Held: Applicable. 
The appellant-accused was held guilty of offence E 
punishable under the Penal Code, 1860 and Prevention 
of Corruption Act. Various custodial sentences and fine 
were imposed. The High Court upheld the conviction but 
altered the sentences to the period already undergone. 
The fine amount was, however, maintained alongwith 
F 
default stipulation. 
Appellant filed leave to appeal which was granted 
on 20.4.1998 but no stay was granted. During the pen-
dency of the appeal, appellant died on 15.5.2000. After 
about 5 years applications were filed purportedly in terms (3 
of s.394 (2) Cr.P.C. to bring on record the legal heirs of the 
deceased appellant for the purpose of continuance of the 
appeal. 
1163 
H 
1164 
SUPREME COURT REPORTS 
[2008] 9 S.C.R. 
A 
Respondent-State submitted that s.394 has no ap-
plication to the appeal before the Supreme Court; that in 
any event, time statutorily prescribed is 30 days; that in 
the instant case, applications were filed nearly 5 years 
after the date of the death of the appellant and that no 
B explanation was offered as to why the applications were 
~ 
filed after such a long time and that there was no scope 
1 
for condoning any delay beyond the fixed period of 30 
days. 
Disposing of the appeal, the Court 
c 
HELD : 1. S.394 of the Cr.P.C. reads that every appeal 
shall finally abate on the death of the appellant. The pro-
viso to that section says that where the appeal is against a 
conviction and sentence of death or of imprisonment and 
D the 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 appeal 
E 
shall not abate. [Para 5] [1167-G, 1168-A,B] 
S. V. Kameswar Rao and Anr. v. State A.C.B. Police, 
Karnoo/ District, Andhra Pradesh (1991) Supp 1 SCC 377 -
relied on 
F 
State of AP v. S. Narasimha Kumar and Ors. (2006) 5 
SCC 683; Harnam Singh v The State of Himacha/ Pradesh 
(1975) 3 sec 343 -referred to. 
2. The principles embodied in s. 394 of the Cr.P.C. 
can be pressed into service in appeals before this Court. 
G It is true that the period of 30 days has been statutorily 
fixed for making an application by the legal heirs. In the 
instant case, the applications were filed after about 5 
years. No explanation has been offered for delayed pre-
sentation. The appeal has abated on the death of the ap-
H pellant. [Para 7] [1169-G,H, 1170-A,B] 
SHRI SHANKAR PRASAD GHOSH (DEAD) v. THE 1165 
STATE OF BIHAR & ANR. [DR. ARIJIT PASAYAT, J.] 
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal A 
No. 473 of 1998 
From the Judgment and final Order dated 26.11.1997 of 
the High Court of Judicature at Patna in Crl. Appeal No. 25 of 
1984 
B 
Ranjan Mukherjee for the Appellant. 
)' 
Gopal Singh and Manish Kumar for the Respondents. 
The Judgment of the Court was delivered by 
Dr. ARIJIT PASAYAT, J. 1. One Shankar Prasad Ghosh c 
had filed the present appeal before this Court questioning cor-
rectness of the judgment rendered by a learned Single Judge 
of the Patna High Court. By a common judgment the iearned 
Special Judge (CBI), South Bihar, Patna had found each of the 
~ 
accused persons guilty of offence punishable under Sections D 
409, 477 A read with Section 34, 467 and 4 71 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 
E 
were imposed. The judgment of the Special Judge was
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