IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO. 168 OF 2007  

JUGAL KISHORE KHETAWAT APPELLANT

VERSUS

STATE OF WEST BENGAL RESPONDENT

WITH  

(Crl. A. No. 1399 of 2007)

ORDER  

The sole appellant in this appeal Smt. Bimala Devi Khetawat  

has  been  convicted  for  the  offence  punishable  under  Section  

120B/302 IPC on the allegation that she was a party to a conspiracy  

to  commit  murder  of  two  of  her  neighbours  and  sentenced  life  

imprisonment  by the learned Additional  Sessions Judge,  6th Court,  

Alipore.  The Criminal Appeal preferred by her in the High Court of  

Calcutta was dismissed.  She preferred a special leave petition under  

Article 136 of the Constitution of India against the said judgment and  

order dated 25.9.2006 passed by the High Court at Calcutta.  This

Court vide its order dated 5.2.2007 granted leave.  

That on 16.6.2008 the appellant died.  The husband of the  

deceased  appellant  Jugal  Kishore  Khetawat  filed  an  application  

seeking  leave  of  the  court  to  continue  the  appeal.  In   the  said  

application it is averred that “even though the appellant has died, the  

name of the appellant has not been cleared of the charges and of the  

conviction. It is further submitted that it is in the interest of justice  

that  the  stigma attached to  the  name of  the  appellant  is  cleared  

which is also adversely affecting the near family and relatives of the  

appellant.  It is under these circumstances, the applicant who is the  

husband of the deceased appellant has filed the present application  

seeking leave to continue with the appeal.”

The Registrar of this Court vide order dated 7.8.2008  passed  

the following order:  

“Crl.  M.P.  No.  11889/2009  is  allowed.  Amend  the  cause  title  accordingly.  Thereafter,  office to process for listing.”

A  short  question  that  arises  for   our  consideration  in  this  

appeal is whether the husband of the deceased appellant is entitled  

to  continue  the  appeal  and,  if  so,  whether  leave  to  continue  the  

appeal could have been granted by the Registrar of this Court.  

Section 394 of the Code of Criminal Procedure, 1973 which is  

relevant for our present purpose reads as under:

“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.”

A plain reading of sub-section (2) of Section 394 suggests that  

every appeal preferred under Chapter XXIX  except an appeal from a  

sentence of  fine  shall  finally  abate on the death of  the appellant.  

However, a provision is made 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; ‘near relative’ means a parent,  

spouse, lineal descendant, brother or sister.

Such  a  proviso  has  been  added  in  the  following  

circumstances:

An  amendment  to  Section  431  was  suggested  in  the  Bill  

introduced  in  the  Parliament  by  a  private  Member,  Shri  K.V.  

Raghunatha  Reddy.  The  main  object  of  the  amendment  was  to  

provide a machinery whereby the children or the members of the  

family  of  a  convicted  person  who  dies  during  the  appeal  could  

challenge the conviction and get rid of the odium attaching to the  

family as a result of the conviction. The Law Commission of India by  

its Forty-First Report (September 1969, Vol. I, pp. 279-81) found the  

proposed amendment “eminently sound” and recommended that the  

amendment be made with certain modifications. Accordingly Section  

394  of  the  Code of  Criminal  Procedure,  1973 has  made  the  said  

proviso.  

It  is thus clear that every appeal  under Chapter XXIX of the  

Code except an appeal from a sentence of fine shall finally abate on  

the  death  of  the  appellant  but  a  near  relative  of  the  deceased  

appellant 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.

It is thus clear that no near relative of the  deceased appellant is  

automatically entitled to come on record as a legal representative of  

the  deceased  appellant  and  continue  the  appeal  unless   leave  is

granted by the appellate court  to continue the appeal.   Once the  

leave is granted by the appellate court, the appeal shall not abate.  

It  is  true  the present  appeal  is  not  the  one  preferred  under  

Chapter XXIX but by way of Special Leave Petition under Article 136  

of the Constitution of India. While dealing with the nature, width and  

amplitude  of  jurisdiction  of  this  Court  under  Article  136  of  the  

Constitution  this  Court  in  P.S.R.  Sadhanantham  vs.  Arunachalam  

[ (1980) 3 SCC 141] observed:  

“In express terms, Article 136 does not confer a right  of  appeal  on a party as such but it  confers a wide  discretionary power on the Supreme Court to interfere  in  suitable  cases.  It  is  residuary  power  and  is  extraordinary in its amplitude.  But the Constitution  makers intended in the very terms of Article 136 that  it shall be exercised by the highest judges of the land  with scrupulous adherence to judicial  principles  well  established  by  precedents  in  our  jurisprudence.  Article 136 has a composite structure of power-cum- procedure inasmuch as there is an in-built prescription  of exercise of judicial discretion and mode of hearing.  It is fair to assume that while considering the petition  under Article 136 the court will pay attention to the  question of liberty, the person who seeks such leave  from the court, his motive and his locus standi and  the weighty factors which persuade the court to grant  special  leave.   When  this  conspectus  of  processual  circumstances and criteria play upon the jurisdiction  of  the  court  under  Article  136,  it  is  reasonable  to  conclude  that  the  desideratum  of  fair  procedure  implied in Article 21 is adequately answered. Though  parties  promiscuously  ‘provoke’  this  jurisdiction,  the  court  parsimoniously  invokes  the  power.  Moreover,  the court  may not,  save in special  situations,  grant

leave to one who is  not  eo nomine a party on the  record.  Thus,  procedural  limitations  exist  and  are  governed by well-worn rules of guidance.

This Court in exercise of its powers under Article 136 may grant  

leave in appropriate cases on an application by a near relative of the  

deceased  appellant;  and  if  leave  is  granted,  the  appeal  shall  not  

abate.  

In  our  opinion,  the  principle  embodied in  Section 394 of  the  

Code can be pressed into  service  in  appeals  before  this  Court  so  

preferred under Article 136 of the Constitution of India. This Court in  

Hari  Prasad  Chhapolia  vs.  Union  of  India  [  (2008)  7  SCC  690]  

observed:  

“In view of what has been stated by this Court in the  aforenoted 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  the  question  as  to  whether  there  is  scope  for  condonation of delay as no acceptable explanation has  been offered for the delayed presentation.”

In the present appeal the spouse of the deceased appellant  

filed application seeking leave of the court to continue the appeal.  

The Registrar of this Court allowed the application and directed the  

cause title  to  be amended accordingly.   No leave to continue the

appeal  has  been granted  by the  Registrar.   The  Registrar  of  this  

Court  in  our  considered  opinion  could  not  have  granted  leave  to  

continue the appeal.  Order VI of the Supreme Court Rules, 1966  

confers the powers of the Court in relation to the matters mentioned  

therein to be exercised by the Registrar which includes application for  

substitution,  except  where  the  substitution  would  involve  setting  

aside an abatement. The application filed in the instant case by the  

spouse of the deceased appellant is not one for substitution but an  

application seeking  the leave of the court to continue the appeal.  

The Registrar of this Court is not conferred with any such power to  

grant leave to continue the appeal.  That power can be exercised only  

by the Court and by none else.  

For the aforesaid reasons, we are of the opinion that: (a)   

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;

(b) the power to grant leave to continue the appeal is conferred  

on the court and not on the Registrar under Order VI of the Supreme  

Court Rules, 1966.

For the aforesaid reasons, the order passed by the Registrar  

on 7.8.2008 is  set aside.   The Criminal  Miscellaneous Petition No.  

11889 of  2009 filed  by the husband of  the deceased appellant  is  

allowed and leave is accordingly granted to continue the appeal

List the appeal for hearing.  

……………………………………….J (B. SUDERSHAN REDDY)

……………………………………….J (SURINDER SINGH NIJJAR)

New Delhi; February 25, 2011