Amaresh Roy, J.
1. This appeal against an order of acquittal passed by a Magistrate of Alipore on November 21, 1961, was preferred in this Court on January 16, 1961, by the complainant Nanilal Samanta upon obtaining special leave under Section 417(3) of the Code of Criminal Procedure. That leave was granted on February 13, 1962 and by the same order the appeal was admitted on preliminary hearing. Notice of the appeal was served on the accused Respondent on March 4, 1962 and appearance was entered on behalf of Respondent No. 1 on March 13, 1962, by filing a Vakalatnama through Mrs. Archana Sen Gupta Advocate.
2. When the 'appeal was remaining pending in this Court on April 1, 1963, an application on behalf of one Premada Samanta (widow, of Nanilal Samanta) was filed stating therein that the complainant appellant Nanilal Samanta died on March 18, 1962 and praying
'To allow your petitioner to prosecute the appeal after substituting her name in place of deceased appellant and after serving the copy of this petition on the accused respondents as also on the other legal heir of the deceased namely the appellant's son Satish Chandra Samanta.'
This application was made after giving notice to Satish Chandra Samanta by registered post and also to the Advocate for Respondent No. 1, and was filed by Mr. Arun Kumar Mukherjee Advocate who was the learned Advocate through whom the appeal had been filed on January 16, '1961; but no Vakalatnama executed by Premada Samanta, on whose behalf the application was made, was filed with that application by the learned Advocate Mr. Arun Mukherjee. On that application my learned brother K.C. Sen J. directed a Rule to issue in terms of the prayer on April 4, 1963. Upon an office report dated April 5, 1963, it was 'directed by that teamed Judge that a Vakalatnama should be filed within time granted by the order. That Vakalatnama has been filed on April 10, 1963. That Rule came up for hearing before me on May 16, 1963 and (directed the Rule to be heard along with the appeal the point involved in the Rule is the same that arises on the preliminary objection in the appeal.
3. The Rule and the appeal were heard together on May 29, 1963. Mr. J.M. Banerjee leading Mrs. Archna Sen Gupta on behalf of Respondent No. 1 in the appeal has opposed the Rule for substitution and also took the preliminary point in the appeal by raising the contentions that
(1) The complainant to whom the right of appeal has been given by Section 417 (3) of the Code of Criminal Procedure having died, the appeal has abated and should be dismissed on that ground.
(2) There is no provision In Criminal Procedure Code for substitution in place of a deceased party andso the prayer for substitution cannot be made in the appeal and the Rule should be discharged.
This point needs be disposed of first. Mr. Banerjee's contention that right of appeal under Section 417(3) of the Code of Criminal Procedure is a personal right given to the person on whose complaint cognizance was taken of the alleged offence is borne out by the clear language, of that sub-section which reads:
'If such an order of acquittal is passed in any case-instituted upon complaint and the Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.'
But that is at the stage when the 'complainant may present such an appeal to the High Court.' 'Complainant' has not been defined in Criminal Procedure Code. But that can only mean the person who was examined as complainant under Section 200 of the Code of Criminal Procedure. No other person can be deemed to be a complainant however much he may be interested in the prosecution of the accused or in the property which is me subject-matter of the alleged offence.
4. If the complainant dies before such presentation of the appeal, no other person, not even his legal heirs may have that right. In such a case the right to present an appeal from the order of acquittal shall be only of the State Government under Sub-section (1) of Section 417 of the Code of Criminal Procedure.
5. If the appeal has been presented by a complainant during his life time and he dies before grant ofspecial leave under Sub-section (3), then a question mayarise if such leave can be granted on an application madeby a person who was alive on the day the applicationfor special leave was made, but has died before grantof such leave. It is possible to argue that leave underSection 417(3) cannot be granted to a dead complainantand even if it is granted, it is of no use, because, onthe language of Sub-section (3), presentation of appeal mustfollow grant of special leave and the complainant havingdied before grant of leave, there will not be any personin existence who 'may present such an appeal to theHigh Court.'
6. But when complainant has obtained leave and has also presented the appeal in High Court in his life time but has died since, as in the present case, then no such question arises and the only question in such 8 case is whether the appeal will abate on the death of the complainant appellant.
7. There cannot be any doubt at all that abatement' of an appeal which is pending is a consequence that is brought about only when there is a provision in the statute and not otherwise. In that sense abatement is a creature of the statute. In the Civil Procedure Code abatament of a suit or appeal is a consequence by dint of provisions in Order XXII in that Code. There abatement occurs not on the death of a party, but by omission to substitute the legal heirs of the dead person in his place within the time prescribed by law, by effect of Rule 3(2) and Rule 4(3) of Order XXII, Civil Procedure Code. If the heirs and legal representatives are already on record, then there is no abatement and only an entry in the record need be made under Order XXII, Rule 2 of the Code of Civil Procedure.There are provisions in Order XXII for setting aside an abatement upon application made within time prescribed for such step being taken.
8. In the Criminal Procedure Code the only provision for abatement of an appeal is in Section 431 which is in these terms:
'431. Abatement of appeals. Every appeal under Section 411-A, Sub-section (2), or Section 417, shall finally abate on the death of the accused, and every ether appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant.'
9. By it the distinction made between en appeal against order of acquittal under Section 411-A(2) and Section. 417 on one hand and an appeal against order of conviction and other appeals on the other is clear and unmistakable. In appeals against order of acquittal theconsequence of abatement is brought about only uy the death of the accused, and not of the appellant. In every other appeal (which will include not only appeals Jy ac cased against order of conviction but also appeals under Sections 405, 406, 406-A, 476-B, 515 and 520) abatement to the consequence bf the death of appellant (who may not be an accused). Criminal Procedure Code does not provide for abatement of an appeal under Section 41' the Code of Criminal Procedure on the death of the appellant in such appeal.
10. therefore an admitted appeal against order of acquittal presented to the High Court under Sec. 417(3) of the Code of Criminal Procedure does not abate on the death of the appellant, it 'finally abates' on the death of the accused as enjoined by Sec. 431 of the Code of Criminal Procedure. It is the fact of death of the accused in an appeal against order of acquittal, and of the appellant in any other appeal that entails the consequence of abatement, unlike suits and appeals under Civil Procedure Code where abatement is not upon death hut only by omission to substitute heirs and legal representatives within the time prescribed by law. As abatement under Section 431 of the Code of Criminal Procedure, when it occurs, is final, therefore no question of substitution can arise at all- That is the reason why Criminal Procedure Code does not contain any provision for substitution of any one in place of a deceased party in any appeal, be it an appeal against an order of acquittal, or be it any other appeal. Mr. Banerjee is, therefore, right in contending that in a Criminal Appeal no order can be made for substitution in place of a deceased party.
11. What then will happen to an appeal against order of acquittal under Section 417(3) when the complainant-appellant has died during its pendency? Answer to that question is provided by Sections 421, 422 and 423 of the Code of Criminal Procedure. Those sections apply 'to all appeals, including appeals under Section 417(3). By Sub-section (1) of Section 423 duties of the Appellate Court are prescribed and the language therein makes it clear that those duties have to be performed by the Appellate court who 'shall then send for the records of the case' and dispose of the appeal in one of the other manner mentioned in Clauses (a), (b), (c) and (d) of Sub-section (1) 'after perusing such record' whether the appellant or the Public Prosecutor or the respondent-accused in appeal against order of acquittal appeal or not. If those partiesappear the Appellate Court must hear them. That Isthe reason why a criminal appeal cannot be dismissed for default of appearance by appellant, be he the accuse in an appeal against order of conviction or be be thePublic Prosecutor or the complainant in appeal against order of acquittal. Even the appellant himself cannot withdraw an appeal once it has been filed. This has been settled law since long and reference may be made to a recent decision of a Division Bench (Chakravartti C, J. and Das Gupta, J.) of this Court in the case of Sirdhindra Nath Dutt v. The State, (S) : AIR1957Cal677 . In that case a convicted accused wanted to withdraw the appeal he had preferred in this Court. That was disallowed and it was held:
'After the present appeal had been admitted and when the preparation of the paper book had made some progress, the appellant sent an application or rather a letter from jail by which he represented that he was not desirous of prosecuting the appeal further and, therefore,, the appeal might be struck out. He was informed in reply that inasmuch as he had a solicitor on record, no-personal representation by him could be entertained and that if he desired to make any prayer to the Court, he should do so by means of an application filed through-the Solicitor in the ordinary way. An application was thereafter filed and a learned Advocate of this Court was briefed by the appellant to appear in support of the application. The State also was given notice and appeared at the hearing. The prayer in that application was that the appellant might be permitted to withdraw the appeal or it might be struck out, as he did not desire to proceed with the appeal any further. We rejected that application because, in our view, after a criminal appeal had been filed, it became the duty of the appellate Court to near and determine the appeal on its merits and the appeal could neither be allowed to be withdrawn, or be struck out on the ground that the appellant did not desire-to proceed with it.'
12. In the case of Biswanath Chakravarty v. Harlpada De, : AIR1959Cal443 , N.K. Sen, J. sitting singly followed the Division Bench decision mentioned above and? held that the principle applied equally to appeals against order of acquittal and said :
'The above cases no doubt are in connection with the appeals from orders of conviction, but in my Judgment that fact can hardly make any difference where appeals against orders of acquittal are to be dealt with. Chapter XXXI of the Code deals with the procedure relating to appeals and it makes no distinction regarding final disposal of appeals from conviction or appeals from the orders of acquittal so far as the present question is concerned.'
13. I respectfully agree with that view of N.K. Sen, J. and only add that in the matter of that principle in cases which are not within Section 431 of the Code of Criminal Procedure, there is no difference between' non-prosecution or intention to withdraw a pending appeal and death of the appellant.
14. Valuable guidance can also be had from the judgment of the Supreme Court in the case of Pranab Kumar v. State of West Bengal, : 1959CriLJ256 . In that case the question arose upon death of the accused against whom sentence of imprisonment and also of fine had been imposed upon his conviction, the death occurringduring the pendency of the Rule issued by this Court against the order of conviction and sentence. Their Lord-ships analysed Section 431 of the Code of Criminal Procedure and observed:
'It is manifest that the section, in terms, appliesonly to appeals, and lays down that an appeal againstan order of acquittal passed by the High Court in exercise of its original Criminal jurisdiction (Section 411-A(2)), oran appeal to the High Court from an order of acquittalpassed by any Court other than the High Court, shallfinally abate upon the death of the accused, and all appeals under Chapter XXXI, except an appeal from asentence of fine, shall finally abate on thedeath of the appellant. The first part of thesection dealing, as it does, with appeals against ordersof acquittal, naturally, provides that such appeals must,necessarily, abate because the accused person has passedbeyond the jurisdiction of the Court. The second partof the section deals with appeals by convicted personsor by a person who has been deprived of any property,or who has been ordered to furnish security, etc., andlays down that such appeals shall finally abate on thedeath of the appellant except appeals from a sentenceof fine. As in the instant case, we are not directly concerned with the legal position as it may emerge on thedeath of the appellant or of an accused person as respondent, we need not go into the question whether anappeal would abate if it is from a conviction and sentencenot only of fine but also of imprisonment though it maybe till the rising of the Court. We are here concernedwith a case in which the convicted person had servedout his nominal sentence of imprisonment (assuming thatit was a legal sentence of imprisonment), and his application in revision was pending and was mainly concerned with challenging the order of conviction andsentence of fine, when the petitioner in the High Courtdied. As already indicated, Section 431, in terms does notapply to such a case.'
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'On the other hand, as already indicated, a right of appeal is a statutory right which has got to be recognized by the Courts, and the right of appeal, where one exists, cannot be denied in exercise of the discretionary power even of the High Court. The Legislature, has therefore, specially provided, by Section. 431 of the Code the rules governing the right of substitution in case of death of an appellant.'
15. Therefore death of an appellant complainant in an appeal against order of acquittal under Section 417(3) of the Code of Criminal Procedure does not bring about the consequence of abatement of such appeal nor does such death relieve the Appellate Court of the duty to dispose of the appeal in accordance with Section 423 of the Code of Criminal Procedure.
16. Of course appellate Court's power to dismiss the appeal summarily under Sec. 421 of the Code of Criminal Procedure is there, but that also can be exercised only upon perusal of the petition of appeal and consideration on merits and not for default in appearance nor concession, nor withdrawal by appellant from prosecuting the appeal.
17. I, therefore, hold that in an admitted appeal, there is neither any necessity nor any scope for substitution of any one in place of a deceased appellant Whenthe appellant is the accused, or any one other than complainant on his death the appeal 'finally abates' (except an appeal from a sentence of fine). When the appeal is against order of acquittal under Section 411-A(2) or Section 417, only on the death of accused such appeal 'finally abates' and on the death of complainant appellant the appeal does not abate.
18. The application for substitution made on April 1, 1963, must, therefore, be held to be neither necessary nor maintainable and the Rule issued thereon is, therefore, discharged.
19. The appeal has not abated and must be disposed of on merits. Preliminary point raised by Mr. Banerjee against consideration of the appeal on merits is overruled.
20. On examining the' appeal on merits it appears that prosecution alleged that a Motor Cab No. WBT 2051 registered in the name of persons other than complainant was in possession of the complainant. That Taxi is alleged to have been taken away by the accused persons from the possession of one Jhantulal who was driving the Taxi on May 18, 1960. It is alleged that the accused persons boarded the Taxi at a place in Bhawanipur in 24-Parganas and asked it to be driven to a place within Jorasanho P. S. in Calcutta. When they had reached that place in Calcutta they took away the Taxi by securing the switch-key from the driver. On these allegations an offence under Section 417 of the Indian Penal Code was said to have been committed and the accused persons were tried on that charge before the Alipore Magistrate. The learned Magistrate considered the evidence that showed that on the same facts a complaint by the driver Jhantulal was made to Additional Chief Presidency Magistrate, Calcutta but that was dismissed under Section 203 of the Code of -Criminal Procedure. In the complaint filed before the Alipore Magistrate Jhantulal was cited as fin accused. But at the trial Jhantulal has been examined as prosecution witness. The material part of the prosecution allegation is dependent on the uncorroborated testimony of Jhantulal. The learned Magistrate considered Jhantulal to be an accomplice and refused to rely on his uncorroborated testimony. There the learned Magistrate was right and the order of acquittal has been rightly made. Even if Jhantulal's testimony could be acted upon, whatever other offence may or may not have been laid basis of, there is no element of cheating in that evidence because there is nothing to show that the accused persons had the alleged dishonest intention at the time when they are said to have engaged the text and boarded it in Bhawanipur. The charge framed under Section 417 of the Indian Penal Code was without any evidence to support it and the order acquitting the accused persons of that offence has been correct in law. If there has been any other offence committed either by these accused persons and/or any one else, in respect of WBT 2051 or any other property, appropriate proceedings can be taken only if Section 403 of the Code of Criminal Procedure does not bar it. But that is not a question relevant in the present appeal.
21. The appeal stands dismissed.