Orissa High Court
Orissa State Civil Supplies ... vs Dayanidhi Baliarsingh And Another on 17 September, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.68 of 1992
Orissa State Civil Supplies Corporation .... Appellant
Ltd.
Mr. Amiya Kumar Mishra, Advocate
-versus-
Dayanidhi Baliarsingh and another .... Respondents
CORAM:
HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
Order No. ORDER
11. 17.09.2025
1. This appeal has been filed under Section 378(4) of the Code
of Criminal Procedure, 1973 against judgment dated 11 th October,
1991 of the learned Judicial Magistrate First Class, R. Udayagiri,
Ganjam, rendered in 1.C.C. No.26 of 1986 (T.R. No.367/87) wherein
and whereby the accused persons, namely, Dayanidhi Baliarsingh
and Duryodhan Baliarsingh, partners of Firm D. Baliarsingh and
brothers At/P.O.: Chandiput, P.O./P.S.: Mohana in the District of
Ganjam, were found "not guilty" for committing an offence
punishable under Section 409 of Indian Penal Code, 1860 and were
acquitted of the charge under Section 248(1) of the Code of Criminal
Procedure, 1973 ("Cr.P.C.", for short) and, consequently, they were
set at liberty.
1.1. To assailing said judgment against acquittal, the appellant has
approached this Court by way of filing Criminal Misc. Case No.1718
of 1991 for grant of leave to file an appeal under Section 378(4) of
the Cr.P.C. This Court by order dated 11th February, 1992 having
granted leave, this Criminal Appeal has been filed.
2. This Court vide order dated 9th July, 1992 admitted this
appeal and issued notice. However, on 16th November, 2016, when
the matter stood posted for hearing, since there was none appearance,
this Court directed issue of notice both to the appellant as well as the
respondents.
2.1. Today, when the matter is called for hearing, it is noticed that
the Office Note reveals that "unserved notice back from respondents
1 & 2 with postal endorsement 'addressee deceased' ".
3. Sri Amiya Kumar Mishra, learned counsel appearing for the
appellant-Orissa State Civil Supplies Corporation Limited did not
dispute the fact that both the respondents, i.e., Dayanidhi Baliarsingh
and Duryodhan Baliarsingh, have expired during pendency of the
Criminal Appeal and also submitted that the matter cannot be
proceeded with.
4. Considering the submission so made on behalf of the
appellant and after going through the records, it appears that this
appeal is filed under Section 378(4) of the Cr.P.C. At this juncture, it
may be pertinent to take note of provisions of Section 394 of the
Cr.P.C., which is quoted hereunder:
"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 the 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."
5. Having faced with situation that both the respondents have
suffered death, in view of the aforesaid provision envisaging without
ambiguity that on the death of the accused every appeal under Section
378, Cr.P.C. shall stand abated, the instant Criminal Appeal is,
accordingly, abated. Consequently, the Criminal Appeal stands
disposed of.
(M.S. Raman)
Judge
Laxmikant
Signed by: LAXMIKANT MOHAPATRA
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 18-Sep-2025 11:31:15
