Roshan Lal And Another vs Ashwani Kumar on 22 July, 2026

Himachal Pradesh High Court

Roshan Lal And Another vs Ashwani Kumar on 22 July, 2026

Roshan Lal and another vs. Ashwani Kumar

.

Cr.MP No. 2010 of 2026 in

Cr. Appeal No. 184 of 2014
Reserved on 17.07.2026

22.07.2026 Present: Appellant No.1 stated to have died.

of
Mr H.C. Sharma, Advocate for the appellant
No.2.

rt
Mr Haminder, Advocate, vice Mr Sandeep

Dutta, Advocate, for the respondent.

The applicant/appellant/complainant has filed

the present application for the substitution of legal

representatives of deceased Roshan Lal. It has been

asserted that appellant no. 1, Roshan Lal, expired on

12.10.2016 during the pendency of the present appeal.

Appellant No. 2 is the son of Roshan Lal, and he has already

been impleaded as appellant No. 2. Roshan Lal is survived

by Mahendra Gautam, and her name is to be substituted.

Hence the application.

2. The application is opposed by filing a reply,

taking a preliminary objection regarding the application

being barred by limitation and lack of maintainability. It

was asserted that Roshan Lal had expired on 12.10.2016.

Applicant Sanjeev Kumar was the Special Power of

Attorney of Roshan Lal and was aware of the pendency of

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the present proceedings. However, he failed to file the

application within the time. There is a delay of 3,430 days

.

in filing the application. Hence, it was prayed that the

present application be dismissed.

3. I have heard Mr H.C. Sharma, learned counsel

of
for the appellants and Mr Haminder, Advocate, vice Mr

Sandeep Dutta, learned counsel for the respondent.

4.
rt
Mr H.C. Sharma, learned counsel for the

applicant, submitted that the appellant Roshan Lal has

died and he is survived by the legal representatives

mentioned in the application. The legal representatives

have a right to continue the complaint. Therefore, he

prayed that the present application be allowed and the

names of the legal representative be substituted on record.

5. Mr Haminder, learned vice counsel

representing the respondent, submitted that the

application is hopelessly barred by limitation. Roshan Lal

had died in the year 2016, and the application was filed

after the lapse of 9 years. Therefore, he prayed that the

present application be dismissed.

6. I have given a considerable thought to the

submissions made at the bar and have gone through the

records carefully.

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7. The present appeal has been filed by the

complainant against a judgment acquitting the accused. It

.

was laid down by the Hon’ble Supreme Court in Khedu

Mohton v. State of Bihar, (1970) 2 SCC 450: 1970 SCC (Cri) 479

that a criminal appeal filed by the complainant does not

abate on his death. It was observed at page 453:

of
“7. In view of our above conclusion, it is
unnecessary for us to consider the question of law
rt
canvassed by Mr E.C. Aggarwal, learned counsel for
the appellant. But as the same has been argued, we
shall go into it. The appeal before the High Court

was brought after obtaining special leave under
sub-section (3) of Section 417 CrPC. It appears that
during the pendency of the appeal, the appellant
died. It was contended before the High Court, and

that contention was repeated before us, that the
appeal abated in view of the death of the appellant.

This contention was rejected by the High Court. In

support of that contention, counsel for the
appellant relied on two decisions, one of Allahabad

High Court in Hafiz Nehal Ahmad v. Ramji [AIR 1925
All 620: 47 All 359: 26 Cr LJ 1008] and the other of
Madras High Court in Thothan v. Murugan [AIR 1958

Mad 624: 1958 Cr LJ 1488: 1958 Mad 1098: (1958) 2
Mad LJ 353]. The first decision has no application to
the facts of the present case. That was an appeal
under Section 476-B of the CrPC. It is true that the
Madras decision was rendered in an appeal under
Section 417(3) of the CrPC. In our opinion, the
learned Single Judge of the Madras High Court
erred in thinking that the decision of the Allahabad
High Court lent any support to his conclusion that
an appeal filed under Section 417(3) CrPC abates on
the death of the appellant. The question of
abatement of criminal appeals is dealt with by
Section 431 of the Criminal Procedure Code. That
section reads:

“Every appeal under Section 411-A, sub-
section (2) or Section 417 shall finally abate
on the death of the accused and every other

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appeal under this Chapter (except an appeal
from a sentence of fine) shall abate on the
death of the appellant.”

.

From this section, it is clear that an appeal under
Section 417 can only abate on the death of the
accused and not otherwise. Once an appeal against

an acquittal is entertained by the High Court, it
becomes the duty of the High Court to decide the
same, irrespective of the fact that the appellant
either does not choose to prosecute it or is unable

of
to prosecute it for one reason or another. The
argument that while introducing sub-section (3) to
Section 417 CrPC, the Parliament overlooked the
provisions contained in Section 431 does not
rt
deserve consideration. The language of Section 431
is plain and unambiguous. Therefore, no question

of interpretation of that provision arises.”

8. This judgment was followed by the Bombay

High Court in Umesh Kanjibhai Raja v. Nitin Rasiklal Parikh,

2005 SCC OnLine Bom 9: (2005) 2 Mah LJ 917 and it was

observed at page 918:

“4. The learned Counsel appearing on behalf of the
respondents invited my attention to the provisions
of section 394 of the Code of Criminal Procedure.

He submitted that sub-clause (2) of section 394
specifically states that every other appeal under the
Chapter shall abate on the death of the appellant.
He submitted that in view of the specific provision
under the Criminal Procedure Code, on the death of
the appellant, the present appeal against acquittal
also had abated and, therefore, the applicant had
no locus or statutory right to continue the appeal,
and therefore, the application is liable to be
dismissed.

5. The provision regarding abatement of appeal is
made in section 394 of the Code of Criminal
Procedure, which 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.

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(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

of
appeal shall not abate.

Explanation — In this section, “near relative”

means a parent, spouse, lineal descendant, brother
rt
or sister.

On perusal of the said provision, it can be seen that

the section contemplates that the appeals under
section 377 or 378 shall abate on the death of the
accused. Subclause (2) is a continuation of sub-
clause (1) as it starts with the phrase “Every other

appeal”, meaning thereby that all appeals under
the Chapter except the appeals mentioned in sub-
clause (1), viz., section 377 or 378, shall abate on
the death of the appellant. Thus, it is clear that in

the case of an appeal against acquittal which is filed
under the provisions of section 378, it shall abate

only in the case of the death of the accused. The
submission of the learned Counsel appearing on
behalf of the respondents that the provisions of

sub-clause (2) would apply in the present case
cannot be accepted. The intention of the legislature
appears to be quite apparent from the said
provision, as it restricts the abatement of appeals
only in the case of the death of the accused and not
on the death of the complainant. There is no other
provision under the Criminal Procedure Code which
contemplates a situation of abatement in the case
of the death of the complainant. The Apex Court in
the case of Khedu Mohton v. State of Bihar reported
in (1970) 2 SCC 450: AIR 1971 SC 66, has observed in
para 8 of the said judgment as under: —

“8. From this section, it is clear that an
appeal under section 417 can only abate on
the death of the accused and not otherwise.
Once an appeal against an acquittal is
entertained by the High Court, it becomes

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the duty of the High Court to decide the
same, irrespective of the fact that the
appellant either does not choose to

.

prosecute it or is unable to prosecute it for

one reason or another. The argument that
while introducing sub-section (3) to section
417, Criminal Procedure Code, the

Parliament overlooked the provisions
contained in section 431 does not deserve
consideration. The language of section 431 is

of
plain and unambiguous. Therefore, no
question of interpretation of that provision
arises.”

The ratio of the judgment of the Apex Court is
rt
squarely applicable to the facts of the present case,
and it cannot be said that on the death of the

appellant, the appeal against acquittal abates. The
Apex Court in the case of Ashwin Nanubhai Vyas v.
The State of Maharashtra reported in 1967 Mh.L.J.
312: AIR 1967 SC 983 also has observed in para 8 of

the said judgment as under:–

“(8) In support of his contention, Mr
Keswani has cited some cases of the High

Courts in which, on the death of the
complainant, the prosecution was held to

have abated. Chief among them are Ishardas
v. Emperor (1908) 7 Cri. L.J. 290 (Lah),
Ramanand v. Emperor, 40 Ind Cas 1008: AIR

1917 Lah 403 and Labhuv. Emperor, 52 Ind Cas
797: AIR 1919 Lah 409. The first of these cases
was a prosecution for defamation, and the
second a trial for an offence under section
323, Penal Code, 1860. The third followed the
second. The first two cases here mentioned
were overruled by the Lahore High Court in
Hazara Singh v. Crown, ILR 2 Lah 27; AIR 1922
Lah 227, wherein it was laid down that such
cases do not necessarily abate. Mr Keshwani
also relied upon several cases which arose
under section 417(3) and 467-B of the Code
of Criminal Procedure in which appeals were
held to have abated. We need not refer to
these cases because they arose under
different circumstances and were certainly
not inquiries with a view to committal under
Chap. XVIII of the Code. Mr Hathi, who

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appeared on behalf of the State of
Maharashtra, drew our attention to many
later cases in which it has been held

.

(dissenting from the cases relied upon by Mr

Keswani) that a criminal complaint does not
necessarily abate on the death of the
complainant even in those cases where the

making of the complaint by the person
aggrieved is made a condition precedent by
the Code. We need not analyse those cases

of
because, in our opinion, unless the Code
itself says what is to happen, the power of
the Court to substitute another prosecution
agency (subject to such restrictions as may
rt
be found) under section 495 of the Code of
Criminal Procedure is always available.
Reference may, however, be made to the

following: Imperator v. Nur-Mahomed, (1908)
8 Cri. L.J. 190 (Sind), Emperor v. Mauk Din, AIR
1924 Lah 72; ILR 4 Lah 7, U Tin Mating v. The
King, AIR 1941 Rang 202, Muhammad Azam v.

Emperor, AIR 1926 Bom 178 and In re
Ramasamier16 Cri. L.J. 713(1); AIR 1916 Mad
1034 (1). None of the cases cited, either for

one side or the other, directly arose under
section 198, first part, in a committal

proceeding. The latter view is distinctly in
favour of allowing the prosecution to
continue except in those cases where the

Code itself says that, in the absence of the
complainant, the accused must be either
acquitted or discharged. The present is not
one of those cases, and in our judgment, the
Presidency Magistrate was right in
proceeding with the inquiry by allowing the
mother to carry on the prosecution, and
under section 495, the mother may continue
the Prosecution herself or through a pleader.
We see no reason why we should be astute to
find a lacuna in the procedural law by which
the trial of such important cases would be
stultified by the death of a complainant
when all that section 198 requires is the
removal of the bar. The appeal fails, and it
will be dismissed.”

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In this case also, the Apex Court has taken a view
that though the Court cannot substitute the
complainant, it has a power under section 495 to

.

authorise the conduct of prosecution by any other

person. This Court, in the case of Helen C. Pinheiro
v. Kamaxi Steel Products, reported in 2000 Cri. L.J.
1622 has taken the view that the provisions of

section 256 are analogous in principle to a case
where the complainant has died after final disposal
of the criminal case, after filing leave to appeal, and

of
the same principle will be applicable in such cases.
This Court has, after referring to a number of
judgments of various High Courts has held that the
appeal against acquittal would not abate on the
rt
death of the complainant. The ratio of the said
judgment would also be applicable to the facts of
the present case. The ratio of the other judgments

relied upon by the learned Counsel appearing on
behalf of the applicant also squarely covers the
issue involved in the present case.”

9. A similar view was taken by the Rajasthan High

Court in Panna Lal Sharma v. Rameshwar Lal Choudhary,

2008 SCC OnLine Raj 404: (2008) 3 BC 134, and it was

observed at page 135:

“7. An appeal under Section 394, Cr. P.C. can only

abate on the death of the accused and not
otherwise; therefore, in the present case, the death
of the complainant after filing of special leave to
appeal does not result in abatement of the appeal.

8. We have to bear in mind that the concept of locus
standi has undergone considerable change, and the
well-settled principle in criminal law is that any
person can set the law in motion. Section 256, Cr.
P.C. confers discretion on the Magistrate to proceed
with the trial in the absence of or after the death of
the complainant. Where the complainant is
represented by a pleader/officer conducting the
prosecution, or where the Magistrate is of the
opinion that the personal attendance of the
complainant is not necessary, he is empowered to
dispense with his attendance and proceed with the
case. I fail to understand as to why the same

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analogy cannot be extended in a case where the
complainant has died after the final disposal of the
criminal case ending in acquittal, and after filing

.

leave to appeal and where the legal heirs of the

complainant, on account of the death of the
complainant, wish to prosecute the remedy of leave
to appeal against acquittal.”

10. Kerala High Court held in Ismail v. Samuel, 1994

SCC OnLine Ker 308: (1995) 1 KLT 1 that an appeal against

of
acquittal does not abate on the death of the appellant and

any of the relatives can request the Court to pursue the
rt
appeal. It was observed at page 2:

“4. The request for permission to allow petitioners
to continue the appeals is opposed by the accused,
according to whom petitioners have no right

whatsoever to come on record or to prosecute the
appeals. Learned counsel for petitioners draws
attention to the provisions contained in S. 394 of
the Code of Criminal Procedure and points out that

the appeals have not come to an end consequent to
the death of the appellant. S. 394(1) of the Code

says that every appeal under S. 377 or S. 378 shall
finally abate on the death of the accused. That sub-
section does not apply since this is not a case where

the accused had died. According to counsel, it is
sub-section (2) that is applicable, which says that
every other appeal under that Chapter, except an
appeal from a sentence of fine, shall finally abate
on the death of the appellant. This subsection
contains a proviso 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. According to counsel for the
accused, the proviso is not attracted since the
appeal is not against a conviction and sentence of
death or of imprisonment and by virtue of the

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provision contained in sub-section (2), the appeal
has abated on the death of the appellant.

.

5. There is no provision in the Code for the legal

representatives of the appellant being brought on
record. But any of the near relatives of the
appellant who dies during the pendency of an

appeal filed against a conviction and sentence of
death or of imprisonment can make a request to the
court for the grant of leave to continue the appeal,
and on such leave being granted, the appeal shall

of
not abate. A right has now been conferred by the
proviso to sub-section (2) of S. 394 on near
relations to press the appeal on behalf of the
deceased convict, and the appeal can be continued
rt
with the leave of the court. Since the proviso is not
applicable to the present case, it has only to be seen

whether the appeal has abated on the death of the
appellant by virtue of the sub-section. (2) of S. 394
of the Code.

6. What is the procedure to be followed when the

appellant dies during the pendency of the appeal
has been considered by the Supreme Court in Khedu
Mohton v. State of Bihar (1970) 2 SCC 450: AIR 1971

SC 66). That was also a case where the appeal before
the High Court was brought after obtaining special

leave under the sub-section. (3) of S. 417 of the
Code of Criminal Procedure, 1898. During the
pendency of the appeal, the appellant died. It was

contended before the High Court that the appeal
had abated in view of the death of the appellant;
that contention was reiterated before the Supreme
Court. While answering that contention, the
Supreme Court held that it is clear that an appeal
under S. 417 can only abate on the death of the
accused and not otherwise. It is observed that once
an appeal against an acquittal is entertained by the
High Court, it becomes the duty of the High Court
to decide the same, irrespective of the fact that the
appellant either does not choose to prosecute it or
is unable to prosecute it for one reason or the other.
It is stated that the argument is that while
introducing sub-sec. (3) To S. 417 Cr.P.C., the
Parliament overlooked the provisions contained in
S. 431, which do not deserve consideration. S. 431 of
the Code of 1898 is in pari materia with S. 394 of
the Code of 1973, except for the proviso to sub-sec.

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(2) of that Section, which is not relevant in the
present case. The Supreme Court has therefore held
that the appeal has to be decided on merits,

.

whether the appellant chooses to prosecute it or

when he is unable to prosecute it for one reason or
the other.

7. This is a case where the appeal could not be
prosecuted by the appellant, he having died during
the pendency of the appeal. In such circumstances,
the appeals do not abate, and it is open to this court

of
to permit any person interested to prosecute the
appeals. Petitioners are very much interested in the
outcome of the litigation, as they are members of
the Co-operative Bank. Permitting them to
rt
continue the appeals would not amount to the
substitution of legal representatives of the

deceased complainant. For a proper determination
of the appeals, the presence of someone who can
place all the relevant facts before this Court is
necessary. Petitioners, being members of the

Society, are competent to place the relevant facts so
that no aspect of the matter escapes the notice of
this Court. In these circumstances, the request of
the petitioners to permit them to continue the

appeals has to be allowed.”

11. It was further held that the application for

continuation of the appeal cannot be dismissed because of

the delay. It was observed at page 4:

“8. It is then pointed out by counsel for
respondents that there has been an inordinate
delay in filing the applications seeking permission.
When there is no abatement of the appeals
consequent to the death of the complainant, the
question of delay in moving this Court seeking
permission does not arise. Petition filed for
condonation of delay is superfluous. Even without
explaining the reason for the delay, it is open to
petitioners to request this Court to grant
permission. The objection that there is an
inordinate delay in moving this Court for getting
permission is therefore without substance.”

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12. This position was reiterated in K. Chathukutty v.

N.K. Sujatha, 2006 SCC OnLine Ker 544: (2007) 1 KLJ 88 and

.

it was observed at page 92:

“14. Section 394 of Cr. P.C. applies to appeals. The

appeal against an order of acquittal and an appeal
to the High Court for enhancement of sentence
shall finally abate upon the death of the accused.

of
The appeal filed by the accused against the
sentence of fine only will not abate upon the death
of the accused appellant. An appeal from a
composite order of sentence combining the
rt
substantive sentence of imprisonment with fine
also will not abate on the death of the accused

appellant (vide State of A.P. v. Narasimha Kumar
(2006 (3) KLT 505 (SC)). All other appeals filed by
the accused-appellant shall finally abate on the
death of the appellant-accused. Provisions of
Section 394 of Cr. P.C. applies to an appeal filed

under Section 449 but does not refer to the appeal
filed under Section 454 of Cr. P.C. A reading of
Section 394 of the Criminal Procedure Code shows

that once an appeal against acquittal is entertained
by this Court, this Court is bound to consider and

dispose of the same in accordance with law, and the
same will not abate on account of the death of the
appellant-complainant. Section 394 of Cr. P.C.

corresponds to Section 431 of the Criminal
Procedure Code, 1898.

15. In Khedu Mohton v. State of Bihar (1970) 2 SCC
450: AIR 1971 SC 66 (V 58 C 13), the Apex Court
considered the effect of the death of an appellant in
an appeal filed against acquittal and held that the
appeal does not abate. It was held as follows:–

“An appeal under Sec. 417 can only abate on
the death of the accused and not otherwise.
Once an appeal against an acquittal is
entertained by the High Court, it becomes
the duty of the High Court to decide the same
irrespective of the fact that the appellant
either does not choose to prosecute it or is
unable to prosecute it for one reason or the
other.”

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16. So, the position is no more res integra. The
death of an appellant complainant in an appeal
filed against acquittal will not terminate the

.

proceedings. The appellate court cannot close or

dismiss the appeal as abated. In Bhageerathi Amma
v. Jeevankumar (1982 Crl. L.J. 91), a learned Single
Judge of this Court considered the effect of the

death of appellant-complainant during the
pendency of the appeal and held that the appeal
does not abate. It was held as follows:–

of
“There is not much difference between S. 431
of the Code of 1898 and S. 394 of the present
Code, which would warrant a different
rt interpretation. Evidently, Section 394(1) has
no application to cases of death of the
complainant in an appeal presented under S.

378(4). The words “every other appeal under
this Chapter” exclude appeals filed under Ss.
377 and 378 of the Code. The result is that an
appeal filed under S. 378(4) does not abate

on the death of the complainant.”

17. So this Court cannot dismiss a criminal appeal
as abated. The appeal is to be heard and disposed of

on its merits.

18. The next question arising for consideration is

whether the legal heirs of the deceased appellant-
complainant can be impleaded as additional
appellants in an appeal filed against acquittal. In

Lalloo Prasadv. Kedamath (1963 (2) Crl. L.J. 543), a
learned Single Judge of the Allahabad High Court,
held that an appeal is a continuation of the
proceedings started in the trial court. It was held
thus:–

“In order to get assistance for the proper
determination of the case on merits, the appellate
court can permit anyone, whom it deems fit, to
place before it all the relevant facts and the
evidence in the case so that no aspect of the matter
escapes the Court’s notice.”

19. It was further held thus: —

“The appearance of such a person is analogous to
that of an amicus curiae to assist the Court.”

20. In Siba v. Kailash Chandra Jena (1965 Cutt. L.T.

37) it was held as follows:–

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“There is no provision that the appeal shall abate
on the death of the complainant. The appeal would
be properly constituted despite the death of the

.

complainant. But it would be better by way of

abundant caution to add the legal representatives
of the deceased complainant as parties to the
criminal appeal so that in their presence the appeal

can be effectively heard and determined, though no
substitution is necessary in law.”

21. In Bhageerathi Amma‘s case (supra), it was held

of
as follows:–

“There is, however, no provision in the Code
for impleading or substituting a person in
rt place of the appellant or the complainant.

But S. 302, which corresponds to S. 495 of
the old Code, provides for permission to

conduct prosecution. It is therefore within
the power of the Court to permit any person
to prosecute an appeal which is not liable to
abatement on the death of the appellant.”

22. We are of the considered opinion that the
principle laid down in Bhageerathi Amma‘s case
(supra) is correct and confirm the same. So,

petitioners who are widows and children of the
deceased appellant are to be permitted to come on

record as additional appellants and prosecute the
proceedings. But the petition for setting aside the
abatement and condoning the delay is unnecessary.

We dismiss Crl. M. Appln. Nos. 6983/2006 and
6985/2006 as unnecessary and allow Crl. M. Appln.
6984/2006 to the extent of permitting the
appellants to come on record as additional
appellants and prosecute the appeal.

13. Orissa High Court held in Sashi Rout v.

Gopabandhu Sarangi, 1983 SCC OnLine Ori 122: (1983) 55 CLT

200 that an appeal against acquittal will not abate on the

death of the appellant. It was observed at page 202:

“5. Though an appeal was filed against both the
accused persons, the Court granted leave to appeal
only against Gopabandhu Sarangi. Now, a memo
has been filed that appellant Sashi Rout is dead,

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and the appeal has abated in view of section 394,
Cr.P.C.

.

6. Section 394, Cr. P.C. reads as follows: —

“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 abate on the death of the
appellant:

of
Provided that where the appeal is against a
conviction and sentence of death or imprisonment,
and the appellant dies during the pendency of the
appeal, any of his near relatives may, within thirty
rt
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.”

7. This section corresponds to Section 431 of the old
Code. The old section is split into sub-sections (1)
and (2) of the present section 394. The words and

figures “Section 377 or Section 378” are
substituted in sub-section (1) of the present section

in the place of words and figures “Sec 411-A sub-
section (2) or Section 417” in the old Section. The
proviso to sub-section (2) and the explanation are

newly added. On a plain reading of the section, it
appears that an appeal abates only on the death of
the accused. It does not state that such an appeal
will abate on the death of the complainant. In a
decision reported in Khedu Mohton v. State of Bihar
[(1970) 2 SCC 450: A.I.R. 1971 S.C. 66.] it has been
held: —

“An appeal under Sec. 417 can only abate on
the death of the accused and not otherwise.
Once an appeal against an acquittal is
entertained by the High Court, it becomes
the duty of the High Court to decide the same
irrespective of the fact that the appellant
either does not choose to prosecute it or is
unable to prosecute it for one reason or the
other.”

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8. The same view has also been taken by the
Rajasthan High Court in the case of Murari Lal v.
Ram Swaroop [1974 Cri. L.J. 120. As already

.

indicated, “Section 377 or Section 378” has been

substituted in sub-section (1) of Section 394, Cr.
P.C. (new) in place of “Section-411-A sub-section
(2) or Section 417” in Section 431, Cr. P.C. (old), and

the proviso to sub-section (2) and the explanation
have been newly added. So, I am of the view that
this appeal will not abate.”

of

14. It was laid down by the Hon’ble Supreme Court

in Chand Devi Daga v. Manju K. Humatani, (2018) 1 SCC 71:

rt
(2018) 1 SCC (Cri) 264: 2017 SCC OnLine SC 1282 that the

Court can permit the legal heirs to continue with the

prosecution. It was observed at page 74:

“9. Analogous provision to Section 256 of the 1973
Code was contained in Section 247 of the Criminal
Procedure Code, 1898. In Section 247, the proviso
was added in 1955, saying that “where the

Magistrate is of the opinion that personal
attendance is not necessary, he may dispense with

such attendance”. The said proviso took out the
rigour of the original rule, and the whole thing was
left to the discretion of the court. Sub-section (1) of

Section 256 contains the above proviso in a similar
manner. Thus, even in the case of a trial of summons
case, it is not necessary or mandatory that after the
death of the complainant, the complaint is to be
rejected; in exercise of the power under the proviso to
Section 256(1), the Magistrate can proceed with the
complaint. More so, the present is a case where
offence was alleged under Sections 420, 467, 468,
471, 120-B and 201 read with Section 34 IPC for
which procedure for trial of summons case was not
applicable and there is no provision in Chapter XIX
“Trial of warrant cases by Magistrates” containing
a provision that in the event of death of the
complainant the complaint is to be rejected. The
Magistrate, under Section 249, has the power to
discharge a case where the complainant is absent.
The discharge under Section 249, however, is

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hedged with the condition that “the offence may be
lawfully compounded or is not a cognizable
offence”. Had the 1973 Code intended that in case

.

of the death of the complainant in a warrant case,

the complaint is to be rejected, the provision would
have indicated any such intention, which is clearly
absent.”

15. It was laid down by the Kerala High Court in

Bhageerathi Amma v. Jeevankumar, 1981 SCC OnLine Ker 203:

of
1981 KLT 875, that any person, including the brother of the

complainant,
rt could be permitted to continue the

prosecution. It was observed at page 877:

“6. Though it was argued on behalf of the
respondent that there is a difference between S. 431
of the old Code and S. 494 of the present Code, I do

not see much of a difference that would warrant a
different interpretation. Evidently, S. 394(1) has no
application to cases of death of the complainant in
an appeal presented under S. 378(4). The words

“every other appeal under this Chapter” exclude
appeals filed under Ss. 377 and 378 of the Code. The

result is that an appeal filed under S. 378(4) does
not abate on the death of the complainant.

9. S. 199 of the new Code is therefore not a law for
the continuance of the case. On the question of
abatement, the Supreme Court held as follows:

“What the Presidency Magistrate has done is
to allow the mother to act as the
complainant to continue the prosecution.
This power was undoubtedly possessed by
the Presidency Magistrate, because of S. 495
of the Code by which Courts are empowered
(with some exceptions) to authorise the
conduct of the prosecution by any person.
The words ‘any person’ would indubitably
include the mother of the complainant in a
case like this. S. 198 itself contemplates that
a complaint may be made by a person other
than the person aggrieved, and there seems
to us no valid reason why in such a serious
case we should hold that the death of the

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complainant puts an end to the
prosecution.”

.

10. In C.M. Stephen v. John Manjuran, 1970 KLT. 545,

this Court had occasion to consider the question
whether, in a private complaint alleging an offence
of defamation, if the complainant dies pending

trial, his brother could continue the prosecution.
Moidu J., after a review of the case law, pointed out
that there was no specific provision (in the old
Code) to the effect that a complaint would abate on

of
the death of the complainant, and therefore the
brother of the deceased was entitled to continue the
prosecution.

rt

11. It is to be noted in this connection that an
offence under S. 500 is triable as a summons case.
S. 256 of the Code of Criminal Procedure provides

for cases of non-appearance of or death of the
complainant. Under sub-section (1), if the
complainant does not appear, the Magistrate may
either acquit the accused or adjourn the hearing of

the case to some other day. Sub-section (2) states
that the said provision would apply to cases where
the non-appearance of the complainant is due to

his death. In the absence of a specific provision in
the case of appeals under S. 378(4), there is no

reason why the said principle should not be
extended to a case of the death of the appellant
pending disposal of the appeal. What the

petitioners want is to have them impleaded as
appellants in the appeal. There is, however, no
provision in the Code for impleading or
substituting a person in the place of the appellant
or the complainant. But S. 302, which corresponds
to S. 495 of the old Code, provides for permission to
conduct prosecution. It is therefore within the
power of the Court to permit any person to
prosecute an appeal which is not liable to
abatement on the death of the appellant.”

16. It was laid down by the Hon’ble Supreme Court

in Ashwin Nanubhai Vyas v. State of Maharashtra, 1966 SCC

OnLine SC 253: (1967) 1 SCR 807: (1967) 2 SCJ 419: 1967 CRI LJ

943: AIR 1967 SC 983 that a criminal proceeding does not

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abate on the death of the complainant and the Court has

the power to substitute another prosecution agency in the

.

place of the deceased. It was observed:

“9. In support of his contention, Mr Keswani has

cited some cases of the High Courts in which, on
the death of the complainant, the prosecution was
held to have abated. Chief among them are

of
Ishwardas v. Emperor [7 CrLJ 290], Ramanand v.
Crown [40 IC 1008] and Labhu v. Crown [52 IC 797].
The first of these cases was a prosecution for
defamation, and the second was a trial for an
rt
offence under Section 323 of the Indian Penal Code.
The third followed the second. The first two cases

here mentioned were overruled by the Lahore High
Court in Hazara Singh v. Crown [ILR 2 Lah 27],
wherein it was laid down that such cases do not
necessarily abate. Mr Keswani also relied upon
several cases which arose under Section 417(3) and

476-B of the Code of Criminal Procedure in which
appeals were held to have abated. We need not refer
to these cases because they arose under different

circumstances and were certainly not inquiries
with a view to committal under Chapter XVIII of the

Code. Mr Hathi, who appeared on behalf of the
State of Maharashtra, drew our attention to many
later cases in which it has been held (dissenting

from the cases relied upon by Mr Keswani) that a
criminal complaint does not necessarily abate on
the death of the complainant even in those cases
where the making of the complaint by the person
aggrieved is made a condition precedent by the
Code. We need not analyse those cases because, in
our opinion, unless the Code itself says what is to
happen, the power of the court to substitute
another prosecution agency (subject to such
restrictions as may be found) under Section 495 of
the Code of Criminal Procedure is always available.
Reference may, however, be made to the following:

Emperor v. Nurmohammed [8 CrLJ 190], Emperor v.
Mauj Din [AIR 1924 Lah 72: 4 Lah 7], U Tin Maung v.
King [AIR 1941 Rang 202], Mohammed Azam v.
Emperor [AIR 1926 Bom 178] and In re Ramasamier
[AIR 16 Cr LJ 713]. None of the cases cited, either for
one side or the other, directly arose under Section

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198, first part, in a committal proceeding. The
latter view is distinctly in favour of allowing the
prosecution to continue except in those cases

.

where the Code itself says that in the absence of the

complainant, the accused must be either acquitted
or discharged. The present is not one of those
cases, and in our judgment, the Presidency

Magistrate was right in proceeding with the inquiry
by allowing the mother to carry on the prosecution,
and under Section 495, the mother may continue

of
the prosecution herself or through a pleader. We
see no reason why we should be astute to find a
lacuna in the procedural law by which the trial of
rtsuch important cases would be stultified by the
death of a complainant when all that Section 198
requires is the removal of the bar. The appeal fails,
and it will be dismissed.”

17. This position was reiterated in Chand Devi Daga

(supra), wherein it was observed at page 76:

“13. This Court had the occasion to consider
Sections 256 and 302 in Balasaheb K. Thackeray v.

Venkat [Balasaheb K. Thackeray v. Venkat, (2006) 5
SCC 530: (2006) 2 SCC (Cri) 630]. In the above case,

the complaint was filed under Section 500 read
with Section 34 IPC. A petition was filed under
Section 482 of the 1973 Code against the order of

issue of process in the High Court, which was
dismissed. SLP was filed in this Court in which
notice was issued [Balasaheb K. Thackeray v. Venkat,
SLP (Cri) No. 4367 of 2003, order dated 31-10-2003
(SC), wherein it was directed: “Issue notice. Mr
Ravindra Keshavrao Adsure, learned counsel, takes
notice on behalf of Respondent 1 and seeks two
weeks for filing a counter-affidavit. Time prayed
for is granted. One week thereafter is granted for
rejoinder-affidavit. Stay of further proceedings.”]
And during the pendency of the appeal, it was
noted that the complainant had died. It was
contended that the complaint be dismissed on the
ground that the complainant is dead. This Court, in
the above context, referred to Sections 256 and 302.

This Court repelled the argument of the appellant
that the complaint be dismissed on the ground that

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the complainant had died. The following was held
in paras 3 to 6: (SCC pp. 531-32)

.

“3. The learned counsel for the appellants, with

reference to Section 256 of the Code, submitted
that the complaint was to be dismissed on the
ground of the death of the complainant. As

noted above, the learned counsel for
Respondent 1’s legal heirs submitted that the
legal heirs of the complainant shall file an
application for permission to prosecute and,

of
therefore, the complaint still survives
consideration.

4. At this juncture, it is relevant to take note of
rt
what has been stated by this Court earlier on the
principles applicable. In Ashwin Nanubhai Vyas
v. State of Maharashtra [Ashwin Nanubhai Vyas v.

State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ
943], with reference to Section 495 of the Code
of Criminal Procedure, 1898 (hereinafter
referred to as “the old Code”) it was held that

the Magistrate had the power to permit a
relative to act as the complainant to continue
the prosecution. In Jimmy Jahangir Madan v.

Bolly Cariyappa Hindley [Jimmy Jahangir Madan
v. Bolly Cariyappa Hindley, (2004) 12 SCC 509:

2004 SCC (Cri) Supp 317] after referring to
Ashwin case [Ashwin Nanubhai Vyas v. State of
Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943] it

was held that heir of the complainant can be
allowed to file a petition under Section 302 of
the Code to continue the prosecution.

5. Section 302 of the Code reads as follows:

‘302. Permission to conduct prosecution. –(1)
Any Magistrate inquiring into or trying a
case may permit the prosecution to be
conducted by any person other than a police
officer below the rank of Inspector; but no
person, other than the Advocate General or
Government Advocate or a Public Prosecutor
or Assistant Public Prosecutor, shall be
entitled to do so without such permission:

Provided that no police officer shall be
permitted to conduct the prosecution if he
has taken part in the investigation into the

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offence with respect to which the accused is
being prosecuted.

.

(2) Any person conducting the prosecution may

do so personally or by a pleader.’

6. To bring in an application of Section 302 of
the Code, permission to conduct the

prosecution has to be obtained from the
Magistrate inquiring into or trying a case. The
Magistrate is empowered to permit the

of
prosecution to be conducted by any person
other than a police officer below the rank of
Inspector, but no person other than the
Advocate General or the Government Advocate
rt
or a Public Prosecutor or Assistant Public
Prosecutor shall be entitled to do so without
such permission.”

14. Two-Judge Bench in Jimmy Jahangir Madan v.
Bolly Cariyappa Hindley [Jimmy Jahangir Madan v.
Bolly Cariyappa Hindley, (2004) 12 SCC 509: 2004

SCC (Cri) Supp 317] referring to this Court’s
judgment in Ashwin Nanubhai Vyas [Ashwin
Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC
983: 1967 Cri LJ 943] had held that heirs of the

complainant can continue the prosecution. The
following was held in para 5: (SCC p. 512)

“5. The question as to whether the heirs of the
complainant can be allowed to file an

application under Section 302 of the Code to
continue the prosecution is no longer res
integra as the same has been concluded by a
decision of this Court in Ashwin Nanubhai Vyas v.
State of Maharashtra [Ashwin Nanubhai Vyas v.
State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ
943] in which case the Court was dealing with a
case under Section 495 of the Code of Criminal
Procedure, 1898, which is corresponding to
Section 302 of the Code. In that case, it was laid
down that upon the death of the complainant,
under the provisions of Section 495 of the said
Code, the mother of the complainant could be
allowed to continue the prosecution. It was
further laid down that she could make the
application either herself or through a pleader.
Undisputedly, in the present case, the heirs
themselves have not filed the applications to

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continue the prosecution; the same have been
filed by their power-of-attorney holders. …”

.

15. In view of what has been discussed above, we

are of the view that the High Court did not commit
any error in allowing the legal heirs of the
complainant to prosecute the criminal

miscellaneous petition before the High Court. We
do not find any error in the order of the High Court.
The appeal is dismissed.”

of

18. Thus, the objection taken by the

respondent/accused that the application is barred by

limitation cannot be accepted. It is undisputed that the
rt
legal representatives mentioned in the application as the

legal representatives of the deceased, out of whom one

legal representative has been arrayed as appellant no. 2.

Therefore, the present application is allowed, and the

name of Roshan Lal is ordered to be substituted by

Mahendra Gautam.

19. Necessary amendments be made in the memo

of parties, and the amended memo of parties be filed

within a week.

(Rakesh Kainthla)
Judge
22nd July, 2026
(Nikita)

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