Bombay High Court
[email protected] Vishvanath Indore ... vs The State Of Maharashtra And ... on 2 February, 2022
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
950 CRIMINAL APPLICATION NO. 2854 OF 2021
IN APEAL/265/2011 WITH APEAL/262/2011 WITH
APEAL/265/2011 WITH APEAL/366/2011
DEVIDAS @ BHAU S/O VISHVANATH INDORE DECEASED
THROUGH HIS LEGAL HEIRS VARSHA WD/O. DEVIDAS INDORE
AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
.....
Advocate for Applicants : Mr. Langhe Vijay R. Mrs. Langhe Pooja V.
APP for Respondent-State : Mrs. P. V. Diggikar
.....
CORAM : V. K. JADHAV AND
SANDIPKUMAR. C. MORE, JJ.
DATED : 02nd FEBRUARY, 2022
PER COURT:-
1. Leave to correct the title of the application by mentioning that
the criminal application is filed "In Criminal Application No. 265 of
2011" in instead "In Criminal Application No. 366 of 2011" and also to
correct the prayer clause "C" to the same extent and effect.
2. Learned counsel for the applicants submits that the appellant
Devidas @ Bhau Vishwanath Indore-original accused no.2 in Sessions
Case No. 224 of 2006 died during pendency of the criminal appeal.
The appellant-accused Devidas came to be convicted by the trial court
under Sections 324 and 452 of IPC and sentenced to suffer rigorous
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imprisonment for six months and to pay fine of rupees five thousand
and in default, to undergo simple imprisonment for one month.
3. Learned counsel for the applicants submits that the appellant-
accused Devidas was serving as a Police Constable. Learned counsel
submits that the applicants are the legal heirs. Applicant no.1 is the
widow and applicant nos. 2 and 3 and the children of appellant-
accused Devidas. The retiral benefits of deceased Devidas are yet to
be released and in view of the same, it is necessary to bring the legal
representatives on record. Learned counsel submits that in terms of
the provisions of Section 394 of Cr.P.C., this application is filed.
However, due to the pandemic situation, the delay has occurred in
filing the present application.
4. We have also heard learned counsel for respondent no.2-
original complainant and the learned APP for the respondent State.
5. Both of them have stated that appropriate order may be passed.
6. Section 394 of Cr.P.C. is reproduced herein below:
"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 appeal shall not abate.
Explanation.- In this section, "near relative" means a
parent, spouse, lineal descendant, brother or sister.
7. In terms of the proviso to Sub-section (2) of Section 394 of
Cr.P.C., if the appellant dies during pendency of the appeal preferred
against conviction and sentence of imprisonment, 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. In view of the same and since the
applicants before us are the widow and children of appellant
deceased Devidas, we think that this is appropriate case to grant leave
to continue with the appeal since the retiral benefits of the appellant
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deceased Devidas are yet to be released because of pendency of the
appeal preferred against the judgment and order of conviction. So far
as the delay is concerned, since this application is filed during the
pandemic, we are inclined to condone the delay. Hence, the following
order:
ORDER
I. The criminal application is allowed in terms of payer clauses "B"
and "C".
II. The criminal application is accordingly disposed off.
(SANDIPKUMAR C. MORE, J.) (V. K. JADHAV, J.)
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