Jugal Kishore Khetawat vs State Of West Bengal

JUGAL KISHORE KHETAWAT APPELLANT

VERSUS

STATE OF WEST BENGAL

RESPONDENT

WITH

(Crl. A. No. 1399 of 2007)

ORDER

The sole appellant in this appeal Smt. Bimala Devi Khetawat

has been convicted for the offence punishable under Section

120B/302 IPC on the allegation that she was a party to a conspiracy

to commit murder of two of her neighbours and sentenced life

imprisonment by the learned Additional Sessions Judge, 6th Court,

Alipore. The Criminal Appeal preferred by her in the High Court of

Calcutta was dismissed. She preferred a special leave petition under

Article 136 of the Constitution of India against the said judgment and

order dated 25.9.2006 passed by the High Court at Calcutta. This

Court vide its order dated 5.2.2007 granted leave.

That on 16.6.2008 the appellant died. The husband of the

deceased appellant Jugal Kishore Khetawat filed an application

seeking leave of the court to continue the appeal. In the said

application it is averred that "even though the appellant has died, the

name of the appellant has not been cleared of the charges and of the

conviction. It is further submitted that it is in the interest of justice

that the stigma attached to the name of the appellant is cleared

which is also adversely affecting the near family and relatives of the

appellant. It is under these circumstances, the applicant who is the

husband of the deceased appellant has filed the present application

seeking leave to continue with the appeal."

The Registrar of this Court vide order dated 7.8.2008 passed

the following order:

"Crl. M.P. No. 11889/2009 is allowed.

Amend the cause title accordingly. Thereafter,

office to process for listing."

A short question that arises for our consideration in this

appeal is whether the husband of the deceased appellant is entitled

to continue the appeal and, if so, whether leave to continue the

appeal could have been granted by the Registrar of this Court.

Section 394 of the Code of Criminal Procedure, 1973 which is

relevant for our present purpose reads as under:

"394. Abatement of appeals.- (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."

A plain reading of sub-section (2) of Section 394 suggests that

every appeal preferred under Chapter XXIX except an appeal from a

sentence of fine shall finally abate on the death of the appellant.

However, a provision is made 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; `near relative' means a parent,

spouse, lineal descendant, brother or sister.

Such a proviso has been added in the following

circumstances:

An amendment to Section 431 was suggested in the Bill

introduced in the Parliament by a private Member, Shri K.V.

Raghunatha Reddy. The main object of the amendment was to

provide a machinery whereby the children or the members of the

family of a convicted person who dies during the appeal could

challenge the conviction and get rid of the odium attaching to the

family as a result of the conviction. The Law Commission of India by

its Forty-First Report (September 1969, Vol. I, pp. 279-81) found the

proposed amendment "eminently sound" and recommended that the

amendment be made with certain modifications. Accordingly Section

394 of the Code of Criminal Procedure, 1973 has made the said

proviso.

It is thus clear that every appeal under Chapter XXIX of the

Code except an appeal from a sentence of fine shall finally abate on

the death of the appellant but a near relative of the deceased

appellant 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.

It is thus clear that no near relative of the deceased appellant is

automatically entitled to come on record as a legal representative of

the deceased appellant and continue the appeal unless leave is

granted by the appellate court to continue the appeal. Once the

leave is granted by the appellate court, the appeal shall not abate.

It is true the present appeal is not the one preferred under

Chapter XXIX but by way of Special Leave Petition under Article 136

of the Constitution of India. While dealing with the nature, width and

amplitude of jurisdiction of this Court under Article 136 of the

Constitution this Court in P.S.R. Sadhanantham vs. Arunachalam

[ (1980) 3 SCC 141] observed:

"In express terms, Article 136 does not confer a right

of appeal on a party as such but it confers a wide

discretionary power on the Supreme Court to interfere

in suitable cases. It is residuary power and is

extraordinary in its amplitude. But the Constitution

makers intended in the very terms of Article 136 that

it shall be exercised by the highest judges of the land

with scrupulous adherence to judicial principles well

established by precedents in our jurisprudence.

Article 136 has a composite structure of power-cum-

procedure inasmuch as there is an in-built prescription

of exercise of judicial discretion and mode of hearing.

It is fair to assume that while considering the petition

under Article 136 the court will pay attention to the

question of liberty, the person who seeks such leave

from the court, his motive and his locus standi and

the weighty factors which persuade the court to grant

special leave. When this conspectus of processual

circumstances and criteria play upon the jurisdiction

of the court under Article 136, it is reasonable to

conclude that the desideratum of fair procedure

implied in Article 21 is adequately answered. Though

parties promiscuously `provoke' this jurisdiction, the

court parsimoniously invokes the power. Moreover,

the court may not, save in special situations, grant

leave to one who is not eo nomine a party on the

record. Thus, procedural limitations exist and are

governed by well-worn rules of guidance.

This Court in exercise of its powers under Article 136 may grant

leave in appropriate cases on an application by a near relative of the

deceased appellant; and if leave is granted, the appeal shall not

abate.

In our opinion, the principle embodied in Section 394 of the

Code can be pressed into service in appeals before this Court so

preferred under Article 136 of the Constitution of India. This Court in

Hari Prasad Chhapolia vs. Union of India [ (2008) 7 SCC 690]

observed:

"In view of what has been stated by this Court in the

aforenoted cases the principles embodied in Section

394 of the Code 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 case, the application

was filed nearly after one year. We need not go into

the question as to whether there is scope for

condonation of delay as no acceptable explanation has

been offered for the delayed presentation."

In the present appeal the spouse of the deceased appellant

filed application seeking leave of the court to continue the appeal.

The Registrar of this Court allowed the application and directed the

cause title to be amended accordingly. No leave to continue the

appeal has been granted by the Registrar. The Registrar of this

Court in our considered opinion could not have granted leave to

continue the appeal. Order VI of the Supreme Court Rules, 1966

confers the powers of the Court in relation to the matters mentioned

therein to be exercised by the Registrar which includes application for

substitution, except where the substitution would involve setting

aside an abatement. The application filed in the instant case by the

spouse of the deceased appellant is not one for substitution but an

application seeking the leave of the court to continue the appeal.

The Registrar of this Court is not conferred with any such power to

grant leave to continue the appeal. That power can be exercised only

by the Court and by none else.

For the aforesaid reasons, we are of the opinion that: (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 VI of the Supreme

Court Rules, 1966.

For the aforesaid reasons, the order passed by the Registrar

on 7.8.2008 is set aside. The Criminal Miscellaneous Petition No.

11889 of 2009 filed by the husband of the deceased appellant is

allowed and leave is accordingly granted to continue the appeal

List the appeal for hearing.

..............................................J

(B. SUDERSHAN REDDY)

..............................................J

(SURINDER SINGH NIJJAR)

New Delhi;

February 25, 2011