‘The bar on review under Section 362 CrPC does not operate when an appeal was abated without adjudication on merits,’ Read Judgment

The Chhattisgarh High Court, while allowing a petition filed for recalling of the order dated 17.10.2023 passed by this Court, whereby the appeal preferred by the Appellant-Chandramani Naik was held to be abated on account of his death during the pendency of the said appeal, held if a person is convicted and has been awarded not only the jail sentence but also the fine amount, then, in the said eventuality, the appeal cannot be held to be abated.

Brief Facts:

An appeal was preferred by the deceased sole appellant, being aggrieved with the judgment dated 29.10.2004 passed by the learned Additional Sessions Judge, whereby he was convicted under Section 376(1) of IPC and was awarded rigorous imprisonment for 7 years and a fine amount of Rs.5,000/-. During the pendency of the said appeal, the said appellant Chandramani Naik passed away and the appeal preferred by him was held to be abated. Hence, the present petition.

Contentions of the Petitioner:

The Learned Counsel for the Petitioner submitted that since by virtue of judgment dated 29.10.2004 passed by the learned Additional Sessions Judge, the appellant-Chandramani Naik was not only sentenced to a rigorous imprisonment of 7 years but a fine amount of Rs.5,000/- was also imposed upon him, the said appeal cannot be held to be abated. He contended that the order impugned dated 17.10.2023 be recalled while permitting the proposed legal representative of said deceased sole appellant to continue the said appeal.

Contentions of the Respondent:

The Learned Counsel for the Respondent submitted that since an order has already been passed, therefore, the same cannot be reviewed.

Observations of the Court:

The Court noted that if the appeal is preferred by the State Government under Section 377 of Cr.P.C. being aggrieved with the inadequacy of sentence, or preferred under Section 378 of Cr.P.C. being aggrieved with the acquittal of the accused, then the same would be held to be abated on account of the death of the accused.

The Court observed that if a person is convicted and has been awarded not only the jail sentence but also the fine amount, then, in the said eventuality, the appeal cannot be held to be abated. The Court said that no judicial determination or decision of a Court was made while holding the appeal to be abated, and hence, the bar provided under Section 362 of Cr.P.C., would not be attracted, as alleged by the counsel appearing for the respondent/State.

The decision of the Court:

The Chhattisgarh High Court, allowing the petition, held that the order impugned dated 17.10.2023 passed in Criminal Appeal is recalled.

Case Title: Chandramani Naik v State Of Chhattisgarh

Coram: Hon’ble Justice Sanjay S. Agrawal

Case No.: CRMP No.2511 of 2023

Advocate for the Petitioner: Mr. Pawan Shrivastava

Advocate for the Respondents: Mr. Ratan Pusty

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