Holding

Section 394 CrPC applies to Supreme Court appeals and the 30‑day deadline for filing a substitution application is mandatory; failure to comply results in abatement of the appeal.

Summary

Hari Prasad Chhapolia was convicted under the Customs Act, 1962 and the Gold (Control) Act, 1968; the High Court set aside the Customs conviction but upheld the Gold conviction. He appealed to the Supreme Court under special leave, but died while the appeal was pending. His legal heirs filed an application for substitution and condonation of delay more than a year after his death, seeking to continue the appeal. The Court examined whether Section 394 of the Code of Criminal Procedure, 1973 (and its proviso) applies to appeals before the Supreme Court and whether the statutory 30‑day deadline for such applications can be extended. It held that Section 394 does apply to Supreme Court appeals and that the 30‑day period is strict; no sufficient cause was shown for the delay. Consequently, the appeal was deemed to have abated on the appellant's death and was disposed of.

Issues considered

Whether Section 394 of the Code of Criminal Procedure, 1973 applies to appeals before the Supreme Court under Article 136.
Whether the 30‑day period for filing a substitution application by legal heirs can be condoned.
Whether an appeal abates on the death of the appellant if the substitution application is not filed within the prescribed period.

Legislation cited

Code of Criminal Procedure, 1973s. 394, s. 431
Customs Act, 1962s. 135(b)(1)
Gold (Control) Act, 1968s. 85

Subjects

Section 394 CrPCappeal abatementdeath of appellantsubstitution of legal heirscondonation of delaySupreme Court appealGold (Control) ActCustoms Actcriminal procedure

Judgment

(2008] 10 S.C.R. 62

A HARi PRASAD CHHAPOLIA (DEAD)
v.
UNION OF !NOIA
(Criminal Appeal No.82 of 2002)
JUNE 20, 2008
B
[DR. ARIJIT PASAYAT AND G,S. SJNGHVl 1 JJ.]

Code of Criminal Procedure, 1973:
s. 394, proviso - Appeal - Abatement of, on death of ap-
c pellant - Leave to continue the appeal by relative - Delay in
- Effect of - On facts, Conviction of appellant under t!:e Gold
Act challenged before Supreme Court - Death of appellant
during pendency of appeal - Matter adjourned several times
at request of counsel for allowing substitution of relative - Ap-
D plication for substitution filed after one year -· No sufficient
cause shown for delayed presentation - Held: Appeal sha!/
abate - Gold (Control) Act, 1968.
s. 394 ..,... Applicability of, to appeal before Supreme Court
- Held: Applicable.
E
The appellant was convicted for offences puni!it'tabte
under Customs Act, 1962 and under Gold (Control) Act,
1968 by the trial Court. The High. Court set aside the con-
viction for the offence punishable under Customs Act and
F upheld the conviction for the offence punishable under
Gold Act.
Appellant filed leave to appeal which was granted
by this Court by order dated 17.1.2002. The matter was
adjourned to 12.6.2007 when it was mentioned that the
G appellant has died.
The matter was again adjourned and on 25.10.2007 ,_
six weeks' time was granted to the counseJ to file
vakalatnama and memo of appearance on behalf of legal
H 62
HARi PRASAD CHHAPOLIA (DEAD) v. UNION 63
OF INDIA

.,._ heirs of the deceased appellant. No application was filed A
for bringing on record the legal heirs of the deceased ap-
pellant. On 4.1.2008, application was filed for substitu-
tion for bringing legal heirs of the appellant on record
along with the application for condonation of delay. The
only ground indicated in the application seeking condo- B
nation was that the legal heirs of the appellant were not
aware that the death of their father had to be intimated to
the counsel for preparing and filing the application for sub-
stitution and when they came to know about this require-
ment they contacted their counsel and filed the applica- C
tiQn.
The respondent submitted that there is no scope for
accepting the application; that s.394 Cr.P.C. has no appli-
cation to an appeal before the Supreme Court; that in any
event, time statutorily prescribed is 30 days and applica- D
~ion has been filed nearly after one year of the death of
the appellant and also no explanation was offered for
delayed application and therefore there was no scope for
condoning delay beyond the period of 30 days.
Dispos_ing of the appeal, the Court E

HELD: 1. S.394 Cr.P.C. reads that every appeal shall
finally abate on the death of the appellant. The proviso to
that section says that where the appeal is against a con-
viction and sentence of death or of imprisonment and the F
appellant dies during the pendency of the appeal, any of
his relatives, which expression is defined by the expla-
nation appended to this proviso may within 30 days of
the death of the appellant, apply to the appellate court for
leave to continue the appeal and if leave is granted, the G
appeal shall not abate. [Para 5] [68- B & C]
2. The principles embodied in s.394 Cr.P.C. can be
pressed into service in appeals before this Court. It is
• true that the period of 30 days has been statutorily fixed
for making an application by the legal heirs .. In the instant H
64 SUPREME COURT REPORTS (2008] 10 S.C.R.

A case, the application was filed nearly after one year. Sev-
eraltimes the matter was adjourned at the request of coun-
sel who appeared for the original appellant. The plea that
the legal heirs did not know the requirement is clearly With-
out any substance. The appeal has abated on the death
B of the appellant. [Paras 7, 8] [70-8, C & D] Q,. ,.. ,

S. V Kameswar Rao and Anr. v. State (A. C.B. Police, ~
Karnoo/ District, Andhra Pradesh) (1991) Supp 1 SCC 377 -
relied on.

c State of A.P v. S. Narasimha Kumar and Ors. (2006) 5
sec 683 and Harnam Singh V. The State of Himachal
Pradesh (1975) 3 SCC 343 - referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Ap-
peal No. 82 of 2002
D
From the final Judgment and Order dated 10.9.2001 of
the High Court of Orissa at Cuttack in Crl. Revision No. 470 of
1994
V.K. Monga for the Appellant.
E
P.P. Malhotra, A.S.G., Vikas Sharma, B.V. Balaram Das
and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. This appeal was filed chal- i I

F lenging the correctness of the judgment of a learned Single
Judge of the Orissa High Court. The appellant-Hari Prasad
Chhopolia was convicted for offences punishable under Sec-
tions 135(b)(1) of the Customs Act, 1962 (in short the 'Cus-
toms Act') and Section 85 (ii), (iii), (viii) and (ix) of the Gold
G (Control) Act, 1968 (in short the '~old Act') by the trial Court.
The High Court by the impugned order set aside the conviction
and sentence for the offence punishable under Section 135(b)(1)
of the Customs Act while upholding the conviction for the of-
fence punishable under Section 85 of the Gold Act. Leave was
H granted by this Court by order dated 17.1.2002. The matter was
HARi PRASAD CHHAPOLIA (DEAD) v. UNION 65
OF INDIA [DR. ARIJIT PASAYAT, J. ]

listed for hearing on 7.6.2007 when none appeared for the ap- A
pellant. The matter was adjourned to 12.6.2007 when it was
mentioned that the appellant-Hari Prasad Chhapolia has died.
Learned counsel for the appellant wanted to take instructions
and, therefore, the matter was directed to be listed after three
weeks. The matter was listed on 17. 7.2007 when on the prayer B
made by the learned counsel for the appellant the matter was
adjourned by four weeks. On 29.8.2007 the following order was
passed:

"Learned counsel for the appellant prays for time. From
the order sheet, it is clear that on June 12, 2007 the matter c
was called for final hearing before the vacation Bench. At
that time, it was stated that the appellant has expired. The
learned counsel for the appellant sought time to get
' ~
instructions. Accordingly, the matter was adjourned. Again
the matter was placed on July 17, 2007 and on that day D
also order was passed to list the matter after four weeks.
Even today, learned counsel for the appellant prays for
time. As a last chance, list the matter after two weeks."

2. On 25.10.2007 six weeks' time was granted to the coun- E
sel to file vakalatnama and memo of appearance on behalf of
legal heirs of the deceased appellant. It is to be noted that by
that time no application for bringing on record the legal heirs of
,. the deceased appellant had been filed. Again on 11.12.2007,
at the request of learned counsel who appeared for the de- F
ceased appellant, the matter was directed to be listed after one
week. On 11.6.2008, on request the matter was directed to be
listed today. It appears that an application has been filed on
4.1.2008 for substitution for bringing legal representatives of
the appellant on record along with the application for condona-
G
tion·of delay. The only ground indicated ir the application seek-
--: ing condonation was that the legal heirs of the appellant were
not aware that the death of their father has to be intimated to
the counsel at Delhi for preparing and filing the application for
substitution. The moment they knew about this requirement they
"· H
66 SUPREME COURT REPORTS [2008] 10 S.C.R.
...,,

A contacted their counsel and application has been filed on
4.1.2008. ,..
'
3. Learned Additional Solicitor General appearing for the
respondent submitted that there is no scope for accepting the
~
application. Section 394 of the Code of Criminal Procedure,
B 1973 (in short the 'Code') has no application to an appeal be-
fore the Supr~me Court. In any event, time statutorily prescribed
•
...

is 30 days. In the instant case, application has been filed nearly
after one year of the death of the appellant-Hari Prasad
Chhapolia. Therein also no explanation has been offered as to ,•
c why the application was filed after such a long time. Accord- I
~.

ingly, he submitted that there is no scope for condoning delay
beyond the period of 30 days.
4. In State of A.P v. S. Narasimha Kumar and Ors. (2006 ~

(5) sec 683), it was noted as follows:
D
~)
"6. In Bondada Gajapathi Rao v. State of Andhra Pradesh '
(AIR 1964 SC 1645) three-judge Bench of this Court was
dealing with the situation as to whether appeal by special
leave against sentence of imprisonment abates on the
E death of the accused/appellant. Three separate judgments
. were rendered by the Hon'ble Judges. The principles as
can be culled out from the said dP-cision are as follows: .(
(though rendered in the context of the Old Code are equally
applicable under the Cr.P.C.). -;

F ( 1) Section 431 of the Old Code does not apply proprio
vigore to a case of appeal filed with the special leave \

of the Supreme Court granted under Article 136 of
the Constitution of India, 1950 (in short the
{
'Constitution') when the appellant-accused dies l
~
G pending the appeal. '
"t·
(2) But where the appeal is against sentence of fine, the
appeal may be permitted to be continued by the legal
representatives of the deceased appellant accused.
There is no provision making such appeals abate. If , ..
H
HARi PRASAD CHHAPOLIA (DEAD) v. UNION 67
OF INDIA [DR. ARIJIT PASAYAT, J.]

they can be continued when arising under the Old A
Code, there is no reason why they should not be
continued when arising under the Constitution. If
revision petitions may be allowed to be continued
after the death of the accused so should appeals, for
between them no distinction in principle is possible B
for the purpose of continuance.
(3) The principle on which the hearing of a proceeding
may be continued after the death of an accused would
appear to be the effect of the sentence on his property
in the hands of his legal representatives. If the C
sentence affects that property, the legal
representatives can be said to be interested in the
proceeding and allowed to continue it.
(4) But where the sentence is not one of fine but of
0
imprisonment, which on the death of the accused
becomes infructuous, the sentence does not affect
the property of the deceased·accused in the hands
of his legal representatives, and therefore, the appeal,
in such a case, would abate, upon the death of the
accused. E
(5) In fact that the accused was a government servant
and was under suspension during the trial and the
fact that if the conviction and sentence were set
aside, his estate would be entitled to receive full pay F
for the period of suspension, cannot be said to affect
his estate, because, the setting aside of the sentence
would not automatically entitle the legal
representatives to the salary. It would be extending
the principle applied to the case of a sentence of G
fine, if on the basis of it appeal against imprisonment
is allowed to be continued by the legal representatives
after the· death of the appellant and for such an
extension there is no warrant. Reference was made
to Pranab Kumar Mitra vs. State of West Bengal H
68 SUPREME COURT REPORTS [2008] 10 S.C.R.

A and Anr. (AIR 1959 SC 144).
5. In S. V Kameswar Rao and Anr. v. State (A.C.B. Po-
lice, Karnool District, Andhra Pradesh) (1991 Supp (1) SCC
377), it was inter-alia observed as follows:

B "5. Section 394 of the Code of Criminal Procedure reads
that every appeal shall finally abate on the death of the
appellant. The proviso to that section says that where the
appeal is against a conviction and sentence of death or
of imprisonment and the appellant dies during the pendency
c of the appeal, any of his relatives, which expression is
defined by the explanation appended to 'this provicio may
within 30 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 the present
case, none of the relatives of the deceased within the
D
term of the explanation to the proviso has approached
this Court within 30 days for leave to continue the appeal.
This present application is filed nearly after a period of 10
years.' No explanation is given in this application for not
approaching the court within that prescribed period and
E no sufficient cause is shown for condonation of such undue
and inordinate delay of 10 years. A decision of this Court
in PS. R. Sadhanantham v. Arunachalam is relied on in
the petition wherein it has been held thus: (SCC p. 145,
para 7)
F
"Article 136 is a special jurisdiction. It is residuary
power; it is extraordinary in its amplitude, its limit,
when it chases injustice, is the sky itself." ,.~

6. In Harnam Singh v. The State of Himachal Pradesh
G (1975 (3) SCC 343 at paras 7, 14 and 15) it was observed as
follows:
"7. The appeal before us was filed by special leave granted
under Article 136 of the Constitution and is neither under
Section 411-A(2) nor under Section 417 nor under any
H
HARi PRASAD CHHAPOLIA (DEAD) v. UNION 69
OF INDIA [DR. ARIJIT PASAYAT, J. ]

other provision of Chapter XXXI of the Code. Plainly A
therefore, Section 431 has no application and the question
whether the appeal abated on the death of the appellant
is not governed strictly by the terms of that section. But, in
the interests of uniformity, there is no valid reason for
applying to appeals under Article 136 a set of rules different B
from those which govern appeals under the Code in the
matter of abatement. It is therefore necessary to find the
true meaning and scope of the provision contained in
Section 431 .
Xx xx c
14. If this be the true interpretation of Section 431, there
is no reason why the same principle ought not to be
extended to criminal appeals filed in this Court under Article
136 of the Constitution. Accordingly the widow of the D
deceased appellant who has been brought on the record
of the appeal ,as his legal representative is entitled to
continue the appeal as the sentence of fine directly affects
the property which would devolve on her on the death of
her husband.
E
15. In Bondada Gajapathy Rao v. State of A.P the appellant
was convicted by the High Court under Section 302 of the
Penal Code and was sentenced to imprisonment for life.
He filed an appeal in this Court by special leave but died
during the pendency of the appeal. His sons and daughter F
applied for substitution as his legal representatives
contending that the conviction of their father had resulted
in his removal from Government service and if the
conviction were set aside the estate will be able to claim
the arrears of salary from the date of conviction till the G
date of his death. This Court declined to permit the legal
representatives to continue the appeal on the ground that
the claim on the strength of which they sought permission
to continue the appeal was too remote. This decision is
distinguishable as the appeal was not from a sentence of , ,
r1
70 SUPREME COURT REPORTS [2008) 10 S.C.R.

A fine and as the interes_t of the legal representatives was
held to be contingent and not direct. Even if the conviction
were set aside, the legal representatives would n.ot have
automatically got the arrears of salary due to their father."
7. In view of what has been stated by this Court in the afore-
B noted cases the principles embodied in. Section 394 of the Code
can be pressed into service in appeals before this Court. It is
true that the period of 30 days has been statutorily fixed for
making an application by the legal heirs. In the instant case, the
application was filed nearly after one year. We need not go into
/
C the question as to whether there is scope for condonation of
delay as no acceptable explanation has been offered for the
delayed presentation.

8. Several times the matter was adjourned at the request
of learned counsel who appeared for the original appellant. The
·D
plea that the legal heirs did not know the requirement is clearly
without any substance. The appeal has abated on the death of
the appellant and is disposed of accordingly.
D.G. Appeal disposed of.