K.D. Sharma, J.
1. This is an application in-revision filed by Ganga Bai, widow, Kamla and Devi, Daughters of Durga Dass deceased, appellant, against an order passed by the Session Judge, Pali. dated 16th October 1975, by which the appeal filed by Durg Dass under Section 520, old Cr.P.C. was held to have abated on the death 6f the appellant.
2. The relevant facts giving rise to this revision petition maybe, briefly stated, as follows Durga Das deceased lodged a written report with the police at police station, Pali, on 18 June, 1937. If was alleged in the report that one Mangi Ram being a relative of Durga Das was allowed to stay at his house as a guest. On the day of the 'Amavashya' at about 5 am Durga Das and his wife Ganga Bai left their house for passing stool in a nearby jungle. When they returned after sometimes, they did not find their guest Mangiram in the house. A suspicion arose in their minds on account of absence of Mangi Ram, Hence, they tried to find out whether any article had been missing from their house. Upon checking, they found one old locket (Timnia) weighing about 4 1/2 tolas and one pair of a silver anklet weighing about 7 1/2 tolas missing from a box lying in their room. On the basis of the above mentioned report the police registered a clinical case under Section 379; I.P.C. against Mangi Ram and made the usual investigation Mangi Ram was arrested on 25th July, 1967. After his arrest, be furnished an information to the Police that he had pledged an old locket with Manohai Das and that he was Prepared to get it recovered at his instance from the possession of the pledgee. The investigation officer recorded the above information and thereafter recorded the gold locket from the possession of Manohar Das in consequence thereof. On completion of investigation, the police filed a separate challan against Mangi Ram who confessed his guilt before the trial court and was convicted on his plea a of guilty under Section 380. IPC. The trial court, however, gave benefit of Section 3 of the Probation of Offenders Act to the accused and let him off after due admonition instead of sentencing him to imprisonment. A separate challan was filed against Manohar Das under Section 411, IPC in the court of the Munsiff Magistrate, Pali. The learned Magistrate tried Manohar Das for the aforesaid offence and acquitted him of the same. As the learned Magistrate entertained some doubt as to the ownership of the gold locket (Timniya) be directed ret ice to be giver to Durga Das complainant, Manohar Das and Mangi Ram to attend his court end to submit their claims as regards ownership of the said ornament. It appears from the record of the lower court that Durga Das complainant and Mangi Ram accused put forward separate claims as to the ownership of the ornament. the learned Magistrate considered their claims and passed an order that Manohar Das was entitled to the possession of the gold locket, because he had produced a receipt to that effect before the police during the course of investigation. the learned Magistrate, however, ordered that the gold locket be delivered to Manohar Das upon his furnishing a personal bond in the amount of Rs. 1500/-, with one surety in the like amount with a stipulation to produce the said ornaments before the court as and when required. Aggrieved by that order, Durga Das filed an appeal under Section 520, Cr.P.C. in the court of the Sessions Judge, Pali. During the pendency of the appeal. Durga Das died and his wife Ganga Bai and daughters Kamla and Devi presented an application for being impleaded in the appeal as legal representatives of the deceased. As stated earlier, the learned Sessions Judge dismissed their application and passed an order that the appeal has abated on the death of the appellant. Mst. Ganga Bai, Kamla and Devi have, therefore, challenged this order by way of revision petition in this Court.
3. I have carefully gone through the record and heard Mr. S.D. Rajpurohit, for the petitioners and Mr. R.P. Vyas appearing on behalf of Manohar Das. It has been contended before me on behalf of the petitioners that Section 431 of the old Code of Criminal Procedure has no application to an appeal filed under Section 430 thereof, and that the Sessions Judge, Pali committed an error of law in holding that the appeal filed by Durga Das had abated upon his death. The above contention is not devoid of force. Section 431, old Cr. P.C. reads as follows:
Abatement of appeals: Every appeal under Section 411A, Sub-section (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.
From a bare perusal of this section, it is clear that it deals with the question of abatement of appeals. It clearly lays down that an appeal under Section 417 or under Section 411A(2) abates on the death of the accused and every other appeal under Chapter XXXI, old Cr.P.C. except an appeal from a sentence of fine shall abate on the death of tie appellant It will not be out of place to mention that an appeal under S.520, old Cr.P.C is not an appeal under Chapter XXXI Hence such an appeal will not abate on the death 'of the 'appellant! The learned Sessions Judge erroneously held that the appeal had abated on the death of Durga Das.
4. Mr. R.P. Vyas appearing en behalf of Manohar Das vehemently contended before me that there was no provision in the old Criminal Procedure Code for substitution of anyone in place of a deceased appellant and, therefore, the application of the petitioners far being impleaded as legal representatives of Durga Dass deceased is the appeal. It is undoubtedly true that there is no specific provision for legal representatives of the deceased appellant to be brought on record in an appeal under Section 520, old Cr. PC, but the court may by way of caution order their substitution in place of the deceased appellant or may dispose of the appeal la accordance with law, without impleading them as parties to the appeal. Apart from this, a special jurisdiction is given to the courts of appeal, conformance, reference or revision under Section 520, old Cr. P.C. to modify alter or annul orders passed by a subordinate cause under Section 517, 518, 519 thereof had to make any further order as it thinks fit. It is, therefore, not permissible to read into it the provisions of abatement regarding appeals.
5. It has been further urged by Mr. R.P. Vyas of behalf of Manohar Das, non petitioner, that the Sessions Judge is not empowered to decide the question that may arise as to who are the legal representatives of the appellant for the purpose of this appeal and, therefore, on substitution of the legal representatives in place of the deceased appellant is possible in such cases. The above contention is not acceptable, because all that the appellate court has to see is that all interested persons claiming to be representatives of the deceased appellant may come on the record. The Court is not required to go into the question and decide as to who are the legal representatives of a deceased in the instant case, there is on dispute inter se between the persons sought to be impleaded as to who is or who is not the legal representative of Durga Das. Out of the petitioners, Ganga Bai is the widow of Durga Das and Kamla and Devi are his daughters. No other person is claiming to be legal representatives of the deceased. Hence, there is no such difficulty as envisaged by the learned Counsel for the non-petitioners in impleading the petitioners as legal representatives of the deceased appellant.
6. Mr. R.P. Vyas contended before me that an objection has been taken in the civil suit that the petitioners are not legal representatives of the deceased Durga Das and that the observations made by me in this revision-petition pertaining to the legal representatives of Durga Das may prejudice the decision of the civil court on this paint. The above contention has no force The apprehension in the mind of the learned Counsel for the non-petitioner is imaginary rather thin real. However, as an abundant caution, I would like to mention here that it will be open for the civil court to decide this question, if raised before it, upon materials or evidence placed on the record before it uninfluenced by observations made by me in this case pertaining to the legal representatives of Durga Das deceased.
7. Lastly, Mr. R.P. Vyas, learned Counsel for the non-petitioner Manohar Das argued before me that the proceedings may be stayed till the disposal of the civil suit instituted by the petitioners for ownership & recovery of possession of the gold locket (Timniya). The above contention also has no force, because these proceedings cannot be stayed, merely because a, civil suit is pending to a civil court between the parties relating to ownership and recovery of possession of this ornament, Besides, the ultimate decision of the civil suit may take long time during which the proceedings, if stayed, shall unnecessarily remain suspended.
8. The result of the above discussion is that this revision petition is accepted, the Sessions Judge. Pali, dated 16th October, 1976, is set aside and the case is sent back to his Court for decision of the appeal after substitution of the name of the petitioners in place of the deceased appellant.