Jugal Kishore khetawat v. State of W.B, 2011, II SCC 502.

State of A.P v. S. Narasimha Kumar, 2006, 5 SCC 683.

Bhageerathi Amma v. Jeevankumar, 1982 Cri LJ 91.

Khedu Mohton v. State of Bihar, 1970, 2 SCC 450.

Om Prakash v. State of Haryana, 1979, 4 SCC 495.

S.V. Kameswar Rao v. State, 1991 Supp (I) SCC 377.

Harnam Singh v. State of H.P. AIR 1975 SC 236.

Abatement of proceedings on death of the accused The ultimate object of the criminal
proceedings against an accused Person is to determine whether he is guilty, and if found guilty,
to punish him. Therefore, if the accused dies during the pendency of such proceedings, it is but
reasonable that the proceedings should abate, as their continuance after the accused’s death will
be meaningless. This position being self-evident the Code has not made any specific provision
regarding the abatement of criminal proceedings after the death of the accused person, In case of
proceedings in appeal the position is slightly different.

In this connection Section 394 provides as follows: 394. (1) Every appeal under Section 377 or
Section 378 shall finally abate on the death of the accused.

(2.) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally
abate on the death of the appellant:
Provided 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 near relatives may, within
thirty 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. Explanation.-In this section, “near
relative” means a parent, spouse, lineal descendant, brother or sister.

If there is an appeal against the sentence on the ground of its inadequacy under Section 377, or if
there is an appeal in case of acquittal of the accused under Section 378, the appeal finally abates
on the death of the accused person. [8. 394(1)]

During the pendency of an appeal against acquittal filed by the complainant under Section
378(4), if the complainant dies, the appeal shall not abate under Section 394(1) as that sub-
section applies only in case of death of the accused. Such an appeal shall not abate under Section
394(2) as that sub-section is applicable only in case of appeals other than those under Sections
377 and 378. The result is that an appeal against acquittal filed under Section 378(4) does not
abate on the death of the complainant. Every appeal against conviction also abates on the death
of the accused except an appeal from a sentence of fine. [8. 394(2)]

The section provides that an appeal from a sentence fine does not abate on the death of the
appellant and further the proviso to the section enables any of the near relatives to obtain leave to
continue the appeal.“ The proviso to Section 394(2) provides that where the appeal is against
conviction and sentence of death or of imprisonment, and the appellant dies during the pendency
of the appeal, any of his near relatives 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. The Supreme Court refused leave in a case where the son after 10 years of the appellant’s
death moved application for continuing the appeal and for condonation of delay so that in case of
acquittal he could get consequential benefits. Neither any explanation nor any cause for not
approaching the court within the prescribed period was offered by the applicant. The Supreme
Court therefore held the appeal abated.” The expression “near relative” means a parent, spouse,
lineal descendant, brother or sister. [Explanation to S. 394] The principles underlying the above
section shall, it is submitted, apply to matters in revision also.
A sentence of fine does not abate on the death of the person sentenced, as it is not a matter which
affects a person only, but affects his property. Though in a majority of cases where the appellant,
who is sentenced to imprisonment, dies during the pendency of the appeal, the interest of his
legal representatives in appeal may be purely sentimental, there are exceptional cases, where the
interest may also be pecuniary. Thus, if the conviction is on a charge of murder of near relation,
whose heir or one of whose heirs is the alleged murderer, he (if the conviction is not set aside)
will be disqualified from inheriting his property. If he dies during the pendency of the appeal, his
heirs have a pecuniary interest in prosecuting the appeal. If the appeal succeeds, their right of
inheritance to the property of the deceased through the appellant will be saved.

The main object of the proviso appears to cover the above said situation and as well to provide a
machinery whereby the children or the members of the family of a convicted person who dies
during appeal could test the conviction and get rid of the odium which would otherwise attach to
them.“ The requirement of leave would help in weeding out such appeals as are not likely to
serve any of the above objectives.

The purpose of proviso to Section 394(2) CrPC is to enable the court to permit certain appeals. It
is similar to jurisdiction under Article 136 of the Constitution.

In Jugal Kishore Khetawat v. State of W.B.", the Supreme Court permitted the appeal filed by
the deceased to be continued by her husband after her death and formulated the position thus:

(a) 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 near relatives may, within thirty 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;

(b) the power to grant leave to continue the appeal is conferred on the court and not on the
Registrar under Order 6 of the Supreme Court“ Rules,1966.

Harnam Singh v. State of HP is the leading case on this section. In this case it was held that
every appeal against conviction abates on the death of the accused except an appeal from a
sentence of fine. A sentence of fine is exempted from the rule of abatement of appeal because the
fine constitutes a liability on the estate of the deceased. An appeal from a composite order of
sentence of imprisonment and fine is ordinarily directed against both the substantive
imprisonment and the fine. But, such an appeal does not for that reason cease to be an appeal
from a sentence of fine within the meaning of Section 394. All that is necessary is that a sentence
of fine should have been imposed on the accused and the appeal preferred by him should involve
the consideration of the validity of that sentence. This section does not apply to an appeal to
Supreme Court under Article 136 of the Constitution. But in the interest of uniformity it is
necessary that the rule of abatement should be the same in criminal appeals.

The proviso to Section 394 is made to cover exceptional cases. In S.V. Kameswar Rao v. State
(A.C.B. Police) Karnool Dist, Andhra Pradesh the application by the legal representative of one
of the accused in a criminal trial, seeking leave to continue the appeal was made nearly after 10
years and no explanation or sufficient cause was given for condonation of such undue and
inordinate delay. It was held that the application was liable to be rejected. In such a case the
reasoning that the applicant would be deprived of securing the consequential benefits to which he
would be entitled in case his application was allowed and his deceased father (accused) was
nationally acquitted, cannot be accepted