Abetment of Criminal Proceedings: Section 394 of CrPC – by Sanjivan Chakraborty

Abetment of Criminal Proceedings: Section 394 of CrPC

 

The Author is Sanjivan Chakraborty, a B.A.LL.B (Hons.) student at National Law University and Judicial Academy, Assam.

 

What is Section 394, CrPC?

 

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 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 the case of proceedings in appeal, the position is slightly different.

 

Section 394 of CrPC:

Section 394 of the Code of Criminal Procedure, 1973 provides:

 

“(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.

 

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 subsection applies only in case of death of the accused. Such an appeal shall not abate under Section 394(2) as that subsection 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.

 

The section provides that an appeal from a sentence fine does not abate on the death of the appellant. 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. 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.

 

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 the appeal may be purely sentimental, there are exceptional cases where the interest may also be pecuniary.

 

Objective of Section 394, CrPC:

 

The main object of the proviso appears to cover the above-said situation and as well to provide 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 the 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.

 

The judiciary’s take on Section 394, CrPC:

 

In Jugal Kishore Khetawat v. the 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.

 

In State of A.P. v. S. Narasimha Kumar the court held that, if there is an appeal against the sentence on the ground of it being inadequate 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.

 

In the case Bhageerathi Amma v. Jeevankumar, it was held that the appeal would only be abated on the death of the accused and on the death of the complainant. As section 394 (1) only applies when the accused is dead in the pendency of the trial.

 

In the case of Om Prakash v. the State of Haryana, it was held that is the appeal is against a sentence of fine, it will not get abated on the death of the accused, the provision of section 394 (2) will apply, and any near relative can 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. 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.

 

Harnam Singh v. the State of H.P. is the leading case for 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 the 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 the 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.

 

Conclusion:

 

It is only in the case of an appeal that a specific provision is made for dealing with the matter. Section 394 of the CrPC deals with the principle of abatement of appeal in case the accused is dead. The section mentions that every appeal will get abated on the death of the accused. The only exemption of the section is an appeal against the sentence of fine, as the fine is a liability on the deceased’s estate and not on him as a person.

 

The various judgments of the court, it is evident that the courts have been able to utilize the provision as provided, and justice has been delivered properly. There has been a proper interpretation of the law, and it has helped in prevailing justice and equality.

 

 

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