On The Death Of Late Abul Hussain By ... vs Abdul Jalil Munchi And 7 Ors
2021 Latest Caselaw 3576 Gua

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GAHC010160592021




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : I.A.(Crl.)/472/2021

         ON THE DEATH OF LATE ABUL HUSSAIN BY ONE HIS LEGAL HEIRS-
         AMRADUL HUSSAIN
         S/O LT ABUL HUSSAIN, R/O- AMLOKHI, P.O. AMLOKHI, P.S. BATADRABA,
         DIST-NAGAON, ASSAM. PIN-782122



         VERSUS

         ABDUL JALIL MUNCHI AND 7 ORS.
         S/O- LATE. ABDUL BAREK, R/O- VILLAGE CHOMOKA, P.S.- BATADEAVA,
         DISTRICT- NAGAON, ASSAM. PIN-782123.

         2:MD. JAHIRUL ISLAM
          S/O LATE. NASAR UDDIN
         R/O- VILLAGE TUKTUKI
         P.S- DHING
          DISTRICT- NAGAON
         ASSAM.
         PIN- 782123

         3:MD. ABDUL JALIL
          S/O- LATE. ABDUL RAHIM SARKAR
         R/O- KOBAIKOTA
         P.S- BATADRAVA
          DIST- NAGAON
         ASSAM.
         PIN-782122.

         4:MD. KHAIRUL ALOM
          S/O- LATE. ABDUL KHALEK
         R/O- VILLAGE- KOBAIKOTA
          P.S.- BATADRAVA
          DIST- NAGAON
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            ASSAM.
            PIN- 782122.

            5:MD. FAZLUL HOQUE
             S/O LATE. ABDUL MALEK
            R/O- VILLAGE CHOMOKA
            P.S.- BATADRAVA
             DIST- NAGAON
            ASSAM.
            PIN- 782123.

            6:MD. MARJAT ALI
             S/O LATE. ABDUL RAHMAN
            R/O- VILLAGE CHOMOKA
            P.S.-BATADRAVA
             DIST- NAGAON
            ASSAM.
            PIN-782123.

            7:MD. ABDUL MATIN
             S/O-LATE. ABED ALI
            R/O- VILLAGE KOBAIKOTA
            P.S- BATADRAVA
             DISTRICT- NAGAON
            ASSAM.
            PIN- 782122.

            8:THE STATE OF ASSAM.
             REPRESENTED BY PP
            ASSA
Advocate for the Petitioner : MR. A BISWAS
Advocate for the Respondent : MR. A GANGULY

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HONOURABLE MR. JUSTICE ROBIN PHUKAN

Date : 22-12-2021

JUDGMENT & ORDER (ORAL) (A.M.Bujor Barua,J)

Heard Mr. D Talukdar, learned counsel for the applicant/appellant, Ms. B Bhuyan, learned Additional Public Prosecutor for the State of Assam and Mr. A Ganguly, learned counsel for the accused respondents No. 1 to 7 in Crl.A. No. 350/2018 arising out of Sessions T(1) Case No. Page No.# 3/5

138(N)/2003 in the Court of the learned Additional District and Sessions Judge, Nagaon.

2. On being acquitted by the judgment dated 16.02.2016 in the aforesaid Sessions Case, the accompanying Criminal Appeal No. 350/2018 has been instituted by Md. Abul Hussain under the proviso to Section 372 of the Code of Criminal Procedure, 1973 (in short CrPC) by virtue of being the victim in the occurrence that had taken place. The appeal was admitted by the order dated 10.12.2018. In the meantime, the respondents No. 1 to 7 had been duly served and Mr. A Ganguly, learned counsel appears for them.

3. During the pendency of Criminal Appeal No. 350/2018, the appellant Md. Abul Hussain died on 30.07.2021. On his death, the instant interlocutory application has been instituted for allowing the applicant Amradul Hussain to further pursue with the Criminal Appeal No. 350/2018.

4. Mr. A Ganguly, learned counsel for the respondents No. 1 to 7 has raised an objection by referring to the provisions of Section 394 of the CrPC to raise the contention that on the death of the appellant Md. Abul Hussain, the Criminal Appeal No. 350/2018 stood abated and as the appeal itself is no longer in existence, therefore, there cannot be any order to allow the present applicant to further pursue the Criminal Appeal No. 350/2018. The learned counsel by referring to the objection filed also takes the stand that there is no specific provision in the CrPC to allow another person to pursue and continue with the appeal once the original appellant had died during the pendency of the appeal. Mr. Ganguly, learned counsel specifically urges that the said contention would also be applicable even in a case where it is an appeal against acquittal.

5. We have heard the learned counsel for the parties. We take note that the Criminal Appeal No. 350/2018 had been instituted by Md. Abul Hussain under the proviso to Section 372 of CrPC. We also take note that Md. Abul Hussain was the father of the deceased, whose death was the subject matter of Sessions T(1) Case No. 138(N)/2003. The proviso to Section 372 of CrPC reads as follows:-

"Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court"

6. A reading of the proviso to Section 372 CrPC makes it discernible that a victim shall have a Page No.# 4/5

right to prefer an appeal against any order passed by the Court acquitting the accused or convicting the accused for a lesser offence or imposing inadequate compensation, and that such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. In other words, the proviso to Section 372 CrPC entitles the victim to a right to prefer an appeal against any order acquitting the accused or convicting the accused for a lesser offence or imposing inadequate compensation.

7. Section 2(wa) of CrPC defines the victim as extracted:-

"'victim' means a person who has suffered any loss or injury caused by reason of the act or omission of which the accused person has been charged and the expression 'victim' includes his or her guardian or legal heir;"

8. The meaning given to the expression 'victim' under Section 2(wa) of CrPC is that the victim means a person who has suffered any loss or injury caused by reason of an act or omission for which the accused person has been charged.

9. In the instant case, as already noted Md. Abul Hussain was the father of the deceased in the occurrence related to Sessions T(1) Case No. 138(N)/2003 and therefore, he was a victim as per the meaning given to the expression 'victim' under Section 2(wa) of CrPC. In this case, on the death of Md. Abul Hussain, this application is instituted by Amradul Hussain, who is the son of Md. Abul Hussain. Section 2(wa) CrPC further provides that the expression 'victim' would also include his or her guardian or legal heir. In other words, the expression 'victim' also includes the legal heir of the person, who is otherwise is a victim by virtue of having suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged.

10. Admittedly, the applicant Amradul Hussain being the son of Md. Abul Hussain who had instituted the Criminal Appeal No. 350/2018 by virtue of being the victim is a legal heir of Md. Abul Hussain. As the definition of the expression 'victim' also includes the legal heir of the victim otherwise, from such point of view, we also have to accept that the present applicant Amradul Hussain is also a victim. Accordingly, a legal right flows in favour of the applicant Amradul Hussain to continue and pursue with the Criminal Appeal No. 350/2018.

11. As regards the contention raised by Mr. A Ganguly, learned counsel for the accused respondents No. 1 to 7 that as per the provision of Section 394 CrPC every appeal under Section 377 or under Section 378 CrPC shall finally abate on the death of the accused and therefore, in the instant case also, Page No.# 5/5

the Criminal Appeal No. 350/2018 had abated on the death of Md. Abul Hussain, we are of the view that such contention would be unacceptable in law for the reason that the provision of Section 394(1) of the CrPC as regards the abatement of an appeal is in respect of the death of the accused.

12. In the instant case, the death had occurred to the victim, who had instituted the appeal under the proviso to Section 372 and not that of the accused. From such point of view also, the provision of Section 394 CrPC would be inapplicable.

13. After the proviso to Section 372 of the Code of Criminal Procedure was brought in by the Act 005 of 2009 being the Code of Criminal Procedure (Amendment) Act, 2008.

14. The statement of objects and reasons of the Act 005 of 2009, amongst others, inter-alia provides:

"At present, the victims are the worst sufferers in a crime and they don't have much role in the court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system."

15. A reading of the statement and object of Act of 005 of 2009 also makes it imperative that the intention of the legislature was to provide certain rights to the victims so that there is no distortion of the criminal justice system and from such point of view also, we are of the view that the plea of an abatement of an appeal instituted under proviso to Section 372 of the Code of Criminal Procedure on the death of the appellant victim would be contrary to the intention and purpose of the Act 5 of 2009.

16. For the reasons above, we allow the applicant Amradul Hussain to pursue and continue with the Criminal Appeal No. 350/2018.

17. The interlocutory application stands allowed as indicated above.

                                       JUDGE                                                JUDGE


Comparing Assistant