The Karnataka High Court has dismissed a petition assailing the constitutional validity of section 394(1) of the Code of Criminal Procedure, 1973, which provides for abatement of criminal appeals on the death of accused.
A single judge bench of Justice Krishna S Dixit dismissed the petition filed by G Varadaraju and said,
"The proceedings for criminal prosecution of offenders involve personal elements such as mens rea which pertain to the domain of mind; if commission of offence is proved, the person of the offender as such, is required for undergoing the punishment for purging the guilt. Therefore, ordinarily, the criminal proceedings abate on the death of the accused."
It added, "On the death of the complainant, the legal heirs of the deceased complainant can move an application under section 302 of the 1973 Code to prosecute the cheque bounce case."
The petitioner appearing in person had contended that the provisions of section 394 of CrPC which provide for abatement of criminal appeals on the death of accused, firstly, do not apply to the Cheque Bounce cases which are governed by the Negotiable Instruments Act, 1881, which is as a complete Code in itself.
Further, if the said provisions are held to be applicable, the same are liable to be voided on the ground of being discriminatory & arbitrary. It was said that to the extent the Parliament has not enacted an appropriate provision for continuing the criminal proceedings in general and criminal appeals in particular, despite the death of the accused, who has left the persons representing his estate, the court should step in and provide a remedy to the aggrieved.
However, the Court said, "Legal systems in most civilised jurisdictions operate with a premise that the personality of an individual begins with birth and ends with death. In certain systems, personality may be assumed even for a 'child in the womb', is not much relevant. "If birth is necessary to create rights, so death in general ends rights."
The bench referred to a decision of the US Supreme Court in Durham vs. US, 401 U.S. 481 (1971), which recognizes the doctrine of abatement ab initio on the death of accused or convict pendente criminal proceedings including appeals.
It said, "The provisions of law such as section 394 of Code of Criminal Procedure, 1973 providing for abatement of proceedings are universal and time tested."
Then it held,
"The policy of the State as enacted in statutes which provide for the final abatement of appeals on the death of accused are animated with legislative wisdom & logic. It is a matter of pure legislative policy that death of the accused should put an end to criminal proceedings. Therefore, the said provision cannot be voided."
It added, "In what circumstances, abatement should happen, is left to the legislative wisdom gained through the experience of ages. It is not that in the recent past, such a provision has been enacted and to a scrupulous complainant it is proving to be a bolt from the blue."
As regards the contention that appeal against conviction and sentence of death or of imprisonment, does not abate if the near relatives obtain leave to continue the same and therefore, similar facility not being provided for, there is discrimination offending Article 14 of the Constitution.
The bench observed,
"It is too far-fetched an argument. A conviction resulting in the sentence of death or imprisonment stands on a different footing and such cases constitute a separate class from the rest, in the view of law makers. That per se does not render the law falling foul of the equality Clause."
Finally the bench dismissed the contention that the provisions of CrPC do not apply to the trial of cheque bounce cases and therefore, the appeal against the acquittal entered therein, could not have been disposed off as having abated on the death of the accused.
The bench said, "Section 4 of the Code r/w Sec. 143 of NI Act makes its provisions applicable to the trial of offences punishable under law other than IPC, 1862 as well. Some of the provisions of the Code are excluded from application does not mean other relevant provisions do not govern the criminal proceedings under the NI Act."
Case Title: G VARADARAJU v. UNION OF INDIA
Case No: WRIT PETITION NO.13145 OF 2022
Citation: 2022 LiveLaw (Kar) 327
Date of Order: 12TH DAY OF AUGUST, 2022
Appearance: G VARADARAJU, PARTY IN PERSON; KUMAR M N, CGC FOR R1 & R2