1. This Criminal Appeal No. 302 of 1961 is a criminal appeal filed by the State against the order of acquittal of respondents Nos. 1 and 2 by. the Judicial Magistrate, First Class. Mehsana The appeal was admitted by a Division Bench of this Court on 28-6-61. The Government Pleader has now stated that respondent No. 1 is dead as he has been reported to be murdered. He, therefore, requests this Court to pass an order that Criminal Appeal No. 302 of 1961 abates as regards respondent No. 1 and that it should be decided, as regards respondent No. 2.
2. Mr. Patel who appears for the respondents; urges that under Section 431, Criminal Procedure Code, the appeal abates as a whole. This section reads as follows :
, 'Every appeal under Section 411-A Subsection (2), or Section 417, shall finally abate on the death of the accused, and every other appeal under this Chapter (except an appeal from a sentence, of fine) shall finally abate on the death of the appellant.'
This section has not been construed by their Lordships of the Supreme Court but their Lordships have construed Section 421, Criminal Procedure Code in Ghela Jadav v. State of Bombay, MR 1960 SC 748, and have declared the law, that Section 421, Criminal procedure Code, does not contemplate an order of partial summary dismissal e.g. in so far as the conviction is appealed against. Their Lordships have declared the law in clear terms that Section 421, Criminal Procedure Code does not contemplate a partial summary dismissal of a criminal appeal. On the same reasoning, Section 431, Criminal procedure Code cannot contemplate the possibility of a partial abatement of Criminal Appeal No. 302 of 1961. Their Lordships have stated that an order of partial summary dismissal of an appeal would be an invalid order. Although their Lordships have not referred to Section 431, Criminal Procedure Code, on the same reasoning an order of partial abatement of criminal appeal No. 302 of 1961 Would be an invalid order. No. doubt, the Division Court consisting of three Judges in Lalu Jela v. State of Gujarat, Criminal Appeal No. 395 of 1961 : (AIR 1962 Gujarat 125) (FB) referred to the observations of this Division Court with reference to Section 431, Criminal procedure Code, and made the following observations;
'In connection with Section, 431, it is urged that the death of an accused in the cases mentioned therein would operate by way of abatement of the appeal. If more than one accused are permitted to file one single appeal, then, in spite of the death of one of the accused, the appeal cannot be said to abate. If it is directed that such appeal abates, then it would abate as regards all the accused. In the referring judgment it has been stated that all these provisions Cleary indicate that there should be a separate appeal filed by each person who is aggrieved by a conviction against him. At first blush, this approach appears to be logical. What these sections however lay down are the powers of the Court relating to summary dismissal, the powers of the Court relating to an appeal and the abatement of an appeal when filed. These sections do not deal with the question of joinder of parties for the purpose of an appeal and the effect of such joinder.'
They further observed that Section 431 which dealt with powers of Court relating to an appeal and the abatement of appeal when filed did not deal with the question of joinder of parties for the purpose of an appeal and the effect of joinder which was the only question before their Lordships. There is thus only a passing reference to Section 431, Criminal Procedure Code, and the Division Bench consisting of three Judges has not given any decision On the question whether if an order is passed that Criminal Appeal No. 302 of 1961 abates as against respondent No. 1 and should be proceeded with as against respondent No. 2, that would be as invalid order. Moreover, for the reasons stated by me in Criminal Appeal No. 395 of 1961 ; (AIR 1962 Guj 250), the judgment, to use the expression for convenience, of the Division Bench consisting of three Judges in Criminal Appeal No. 395 of 1961 : (AIR 1962 Guj 125) (FB) is obiter, per incuriam, beyond jurisdiction and inconsistent with the declaration of law made by their Lordships of the Supreme Court in AIR 1960 SC 748 'and Section 419, Criminal Procedure Code.
3. With great respect, therefore, to pass an order declaring that Criminal Appeal No. 302 Of 1981 abates as against respondent No. 1 and should be proceeded with as against respondent No. 2 would be an invalid order. The learned Assistant Government pleader, who appeared for the State at the first stage, was given an opportunity to separate the two appeals against thy two orders of acquittal, so that the appeal against the order of acquittal of respondent No. 2 who is alive may be proceeded with and decided on merits. But he insisted on treating Criminal Appeal No. 302 of 1961 as it is, namely as an appeal against the order of acquittal of respondents Nos. 1 and 2. At a subsequent stage, the learned Government Pleader Mr. Chokshi was also told that if he separated the two appeals against the two orders of acquittal the appeal against the Order of acquittal of respondent No. 2 would be proceeded with and decided on its merits. But, the learned Government pleader Mr. Chokshi refused to do so on the ground that it was not necessary in view of the observations of the Division Court consisting of three Judges in Criminal Appeal No, 395 of 1961 : (AIR 1962 Guj, 125) (FB). The learned Government Pleader has refused to separate the two appeals and wants that this Court should pass an order in the following terms:
'Criminal Appeal No. 302 of 1961 abates as against the respondent No. 1 and should be proceeded with as against respondent No. 2.'
Such an order would be an invalid order under Section 431 Criminal Procedure Code in view of the declaration of law made by their Lordships of the Supreme Court in AIR 1960 SC 748. I am, therefore, not prepared to pass the order. No doubt, when the State files an appeal against the acquittal of accused No. 2 the appeal must be heard and decided if it is not summarily dismissed. But for doing so illegal orders should not be passed such as the one sought in this case. Instead of asking that illegal orders should be passed the State should, have separated the appeals even at this stage, which was a very trifling matter. But the State refuses to follow this course. So, it is not possible to treat this appeal as two appeals.
4. The next question is in what terms the order should be passed. In view of the fact that respondent No. 1 is dead that would turn on the meaning of the expression 'the accused' in Section 431, Cri. Pro. Code, if an appeal against an order of acquittal can be filed only in respect of one order of acquittal of one accused person then no difficulty would arise, because in that cast the expression 'the accused'' in Section 431, Cri. Pro. Code, would mean the accused against whose acquittal an appeal has been filed. If an appeal is filed against the acquittal of two or more accused persons, then the question would be whether the expression 'the accused' would meanany of the accused or all the accused. Theremay be cases where only one accused dies or some of the accused die but not all the accused.This difficulty again shows that Chapter XXXI ofCriminal Procedure Code, in which Section 431 isfound, does not contemplate an appeal againstorders of acquittal of two different accused persons. However, the appeal against the order ofacquittal of two accused persons has been filedand has been admitted, and even now the learned Government pleader is not prepared to pay additional court-tee of Rs. 5/- so that the appeal canbe treated as two appeals and so that the appealagainst the order of acquittal of the accused person who is alive, may be proceeded with anddecided on merits. In these circumstances, theOnly alternative is to pass an order that Criminal Appeal No. 302 of 1961 abates because respondent No. 1 is dead. The expression 'the accused' in Section 431 would apply to respondentNo. 1. Of course, he is not the only respondent,but in view of the insistence of the learnedGovernment pleader, there is no alternative butto pass an order that Criminal Appeal No. 302of 1961 abates, I would, therefore, order thatCriminal Appeal No. 302 of 1961 abates.