A.S. Srivastava, J.
1. This appeal was filed by Chunchun against the judgment and order dated 22-9-1980 of Sri Ravi Verma, Special Judicial Magistrate, Allahabad, in Criminal Case No. 244 of 1979, acquitting the respondents Gokul, Ram Sumer, Binaik and Raj Karan of a charge under Section 506/427, I. P. C. These respondents were prosecuted in this case on a complaint filed by Chunchun appellant.
2. During the pendency of this appeal. Chunchun died on 15-1-1983 leaving behind him his sons Shesh Dhar and Shyam Dhar and brother Doodh Nath. The present application has been made by Doodh Nath with a prayer to permit him to prosecute this appeal by bringing his name on the record. The counsel for the appellant vehemently argued that such a prayer of Doodh Nath can be granted under Section 302 Cr. P.C The contention of the counsel is rather misconceived. The relevant portion of Section 302, Cr. P. C. reads as under:-
Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector, but no person, other than the Advocate-General, or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission....
3. A mere reading of this section leaves no room for doubt that its object is to empower a trial Court to permit any person other than the Public Prosecutor to conduct a trial before it. Such a power has been given to the trial Court to be exercised where it is necessary for the ends of justice but it has not conferred any such power on any person to assert such a claim for the conduct of a trial as of right.
4. Further the provisions of this section have an application to the conduct of a case before a trial Court and they cannot be extended to an appeal. Such a contention of the counsel is again not tenable. The counsel is referred to Section 386,Cr. P. C. which prescribes a complete procedure which is followed for decision of an appeal by the appellate Court. Section 386, Cr. P. C. provides that :-
After perusing such record and hearing the appellant or his pleader if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal; or may....
It is evident from this section that perusal of the record is essential for the decision of the appeal. Hearing of a party is not essential. A party to the appeal has to be heard only if it appears otherwise not. This section is subject to only to Section 394, Cr. P. C. when an appeal cannot be decided on account of the abatement of the appeal itself. So, in the present case also, this appeal will be decided on merits in accordance with the provisions of Section 386, Cr. P. C. in case it is not found to have abated under Section 394, Cr. P. C.
5. Now when an appeal does no abate on the death of an appellant, and the appellate Court proceeds to decide it on merits by perusing the record, it will not allow any third person to argue that appeal. Section 386, Cr. P. C. gives a right of hearing only to the 'appellant' and the State counsel. The word 'appellant' in Section 386, Cr.P.C. refers to the person who has filed the appeal. No other person can be substituted in his place even if he is dead. Therefore, in a case where the appellant does not, on account of his death or for any reason, appear, the appellate Court will follow the procedure laid down in Section 386, Cr. P. C. and decide the appeal on merits after perusing the record.
6. For reasons given above, Doodh Nath applicant cannot be permitted to be substituted fur Chunchun appellant and argue this appeal on his behalf.
7. The case of Ashwin Nanubhai Vyas v. State of Maharashtra : 1967CriLJ943 relied upon by the counsel for Doodh Nath has no application in this case. In that case Section 495(now Section 302) Cr. P.C. has been interpreted with respect to a case pending in the trial Court. It does not lay down that such a permission can be granted to any person other than the complainant in appeal also.
8. For reasons given above, this application is rejected. This appeal may now be listed for final disposal and deciding the question of its abatement or otherwise under, Section 394, Cr. P.C.