Madhya Pradesh High Court
Smt. Prabha Singh vs The State Of Madhya Pradesh on 18 June, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 18 th OF JUNE, 2025
WRIT PETITION No. 18075 of 2025
SMT. PRABHA SINGH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Rajendra Pratap Singh, learned counsel for the petitioner
Shri Priyank Sandiyal, learned Panel Lawyer for respondent/State.
ORDER
The present petition has been filed seeking the relief in the nature of mandamus
to direct the respondents to sanction family pension to the petitioner from the date
of death of her husband.
2. It is contended by learned counsel for the petitioner that the husband of the
petitioner was working in MP Police Force as Assistant Sub Inspector and he was
subjected to a criminal case while working in Police Force. A prosecution was
instituted against the deceased husband of petitioner in the matter of custodial
death of a person who have been rounded up for interrogation. The criminal trial
was instituted against the deceased husband of the petitioner and he was ultimately
convicted by the Sessions Court under Section 304 part II/34 of IPC though
acquitted under Section 302 of IPC. This was vide judgment dated 18/01/2002
passed by the 3rd Additional Sessions Judge, Satna. The said judgment has been
challenged in Cr.A. No.209/2002 and during pendency of the aforesaid criminal
appeal, the husband of the petitioner expired on 24/03/2023. Upon expiry of
husband of the petitioner, an application was filed in the pending criminal appeal
before this Court for deletion of his name and this Court vide order dated
09/02/2024 deleted the name of husband of the petitioner namely Rajmani Singh
who was appellant No.3, from the array of parties.
3. It is the case of the petitioner that once the deceased husband of the petitioner
expired during pendency of appeal and the name was deleted from the array of
parties then it would amount to acquittal and therefore, the petitioner is now
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entitled for release of family pension from the date on which the name of the
husband of petitioner was deleted from array of parties. It is further contended that
one of the accused persons in the said case namely Bal Govind Mishra also
expired and his name was also deleted from the array of parties in criminal appeal
and his wife has been sanctioned family pension since 26/06/2009 and the case of
the petitioner being at par with the case of deceased Constable Bal Govind Mishra,
the petitioner is also entitled to receive family pension.
4. Per contra, the prayer is vehemently opposed by learned counsel for the
State on the ground that the husband of the petitioner was convicted for offence
involving moral turpitude and therefore, the petitioner does not become entitled
for family pension.
5. Upon hearing learned counsel for the rival parties, the ground on which
the petitioner seeks family pension is that upon the death of deceased husband of
petitioner in pending criminal appeal against conviction, deletion of name was on
account of abatement and it would amount to acquittal and therefore, there is no
disqualification of the petitioner under Section 8 of MP Civil Services Pension
Rules. It is not in dispute that conviction was recorded in the year 2002 while the
deceased husband of petitioner attained the age of superannuation in the year 2015
while he expired in the year 2023. The question of abatement of appeals is dealt
with under Section 394 of Cr.P.C. which is as under:
Section 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.
6. Upon perusal of the aforesaid provision it is evident that every appeal
except an appeal from sentence of funds shall finally abate on death of the
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appellant provided that where the appeal is against conviction and sentence of
death or of imprisonment then in the case of death of appellant during the
pendency of appeal against conviction any of his relatives as defined in the
explanation to the said provision can seek leave to continue the appeal and if leave
is sought then appeal shall not abate.
7. Such a provision has been engrafted only so that the family members of
the deceased convicted appellant may continue to prosecute the appeal so as to
remove the stigma against the deceased appellant. If there was legislative intention
of automatic deemed acquittal in case the appellant dies during pendency of
appeal against conviction then there was no need to insert Section 394(2) along
with its proviso.
8. Therefore, it is clear that it is optional for the family members of a
convicted appellant who expires during pendency of appeal against conviction of
sentence of imprisonment or death to continuing the appeal so as to remove the
stigma and this right is only given to parent, spouse, lineal descendent, brothers
and sisters.
9. In the present case the petitioner did not opt for seeking relief under
Section 394(2) but on the contrary the petitioner moved an application for deletion
of name of the deceased appellant No.3therein who was husband of the present
petitioner. Therefore, in the considered opinion of this Court in the present case it
cannot be inferred that it is deemed acquittal of the convicted appellant who died
during pendency of appeal.
10. The provision of Section 394(2) is inserted only because the adverse
affects of conviction of a person would fall on certain categories of relatives and
therefore, those categories of relatives only having given right to continue the
appeal so that stigma upon the convicted appellant who has expired can be
removed which is one aspect and adverse consequences of conviction can also be
avoided which normally would fall on such near relatives. In the present case, the
consequences were following on the petitioner being widow of deceased appellant
and her right to get family pension was being affected. However, the petitioner
consciously did not seek any leave to continue the appeal so as to remove the
stigma and only contrary had moved application for deletion of name of her
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husband. Now it is being argued and projected that abatement of appeal amounts
to automatic deemed acquittal. If the petitioner had sought such a leave from the
appellate Court in terms of Section 394(2) Cr.P.C. and the same had been refused,
then the petitioner could have certainly projected a valid right to get pension
because in that event, the appellate court would have refused to test the validity of
conviction and the petitioner could not have been put to any consequential
adversity.
11. The argument of the petitioner cannot be accepted because it is against
the scheme of criminal law and against the scheme of Code of Criminal Procedure,
1974. The husband of the petitioner cannot be deemed to be acquitted because it is
not a case of death during trial but it is a case of death during pendency of appeal
after judgment of conviction and sentence being passed against the deceased
appellant, and the petitioner having chosen not to continue the challenge to
conviction despite law having given her that right.
12. So far as the contention that widow of another appellant in the same
case has been granted family pension, this Court cannot mechanically apply the
aspects of parity and it is settled in law that wrong benefit given to one person
cannot be made a ground to grant wrong benefit to another person because the
Court has to protect the law and are not bound to perpetuate illegality in the name
of parity. Recently, upon considering this issue, the Hon'ble Supreme Court in the
case of Jyostnamayee Mishra Vs State of Odisha & Ors., reported in 2025 SCC
Online SC 117, has held as under :-
31. Another argument was raised while referring to two communications
dated 28.06.1999 appointing Ms. Jhina Rani Mansingh and Sri Lalatendu
Rath as Tracer on promotion, claiming to be from the post of Peon, on the
basis of which the petitioner is claiming violation of Article 14, namely the
discrimination. Suffice to add, this Court cannot put a stamp on the
illegalities committed by the department while perpetuating the same. A
litigant coming to the Court cannot claim negative discrimination seeking
direction from the Court to the department to act in violation of the law or
statutory Rules. It is a settled proposition of law that Article 14 does not
envisage negative equality. Reference for the purpose can be made to a
judgment of this Court in R. Muthukumar v. The Chairman and Managing
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Director TANGEDCO (2022 SCC Online SC 151). Relevant para thereof is
extracted below:
"28. A principle, axiomatic in this country's constitutional lore is that
there is no negative equality. In other words, if there has been a benefit
or advantage conferred on one or a set of people, without legal basis or
justification, that benefit cannot multiply, or be relied upon as a
principle of parity or equality. In Basawaraj v. Special Land Acquisition
Officer (2013 (14) SCC 81), this court ruled that:
"8. It is a settled legal proposition that
Article 14 ofthe Constitution is not meant to perpetuate illegality or
fraud, even by extending the wrong decisions made in other cases.
The said provision does not envisage negative equality but has only a
positive aspect. Thus, if some other similarly situated persons have
been granted some relief/benefit inadvertently or by mistake, such an
order does not confer any legal right on others to get the same relief
as well. If a wrong is committed in an earlier case, it cannot be
perpetuated."
(Emphasis in original)
13. In view of the above, there is no merit in the present petition. It
deserves to be and is hereby dismissed. However, liberty is reserved to the
petitioner to avail benefit of Section 394(2) of Cr.P.C. and renew this prayer as an
outcome of that.
(VIVEK JAIN)
JUDGE
RS
