(Prayer: Appeal (disposed of on 1-5-1958) under S. 417 (3) Criminal Procedure Code, 1898, against the acquittal of the aforesaid respondents-accused 1 to 5 by the Sub-Magistrate, Tirupattur, in C. C. No. 28 of 1957 etc.,)

This is an appeal filed under S. 417 (3), Criminal Procedure Code. In the trial Court the appellant herein prosecuted the respondents for theft, in that they cut away the crops on the land which was said to be in the possession of the complainant. The lower Court found that the complainants possession has not been established beyond all reasonable doubt and therefore, acquitted the accused of the offence of theft. Against that acqurtral the complainant preferred under S. 417 (3), Criminal Procedure Code, this appeal. Leave of the Court has been granted and the appeal has been admitted. After admission of this appeal and before its hearing the appellant died. The question is whether the appeal abates under S. 431, Criminal Procedure Code.

Section 431 Criminal Procedure Code is as follows:

Every appeal under S. 411-A, Sub.S. (2), or S. 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 is an appeal under S. 417. Criminal Procedure Code. Under the terme of S. 431, Criminal Procedure Code this can abate only on the death of the accused. The other appeals, i.e., appeals which are filed under Sections other than S. 417, Criminal Procedure Code abate only on the death of the appellant. The fight of appeal which is given to the complainant was introduced by the Amending Act of 1955. Parliament is supposed to have taken notice of S. 431, Criminal Procedure Code also when the amendment was passed. But there is this lacuna in the Section, namely, as to what is to happen in case where the accused does not die and the appeal is not by the accused but by the complainant and he dies pending disposal.

In terms S. 417, Criminal Procedure Code which applies to this case, the appeal can abate only on the death of the accused which is not the case here. The question is therefore not free from doubt. It seems to me that Parliament or the local legislature should intervene and amend S. 431, Criminal Procedure Code so as to cover cases of this nature also. The question is as to what is to happen to this appeal now.

Mr. Gopalaswami appearing for the appellant very fairly brings to my notice the decision in Nehal Ahmed v. Ramji A.I.R. 1925 All. 620 [LQ/AllHC/1924/381] . That was a case of an appeal under S. 476-B. There the complainant died and the learned Judge has observed that the language of S. 476-B, Criminal Procedure Code does not indicate that any legal representative of the deceased may file an appeal or support it on the death of the appellant. The learned Judge also observed that neither S. 404, Criminal Procedure Code nor S. 431, Criminal Procedure Code had any application to that case. Similarly, in this case also S. 431 has no application. Nevertheless on the principle laid down by the learned Judge in the Allahabad case, I should think that in the absence of a specific provision for the legal representative to be brought on record, the appellant having died, the question of prosecuting the appeal further does not arise.

In the circumstances, the only order that could be passed is the dismissal of the application to bring on record the legal representative. On the merits also I am satisfied that the acquittal is justified.

The appeal is dismissed