Supreme Court of India
YERUVA SAYIREDDY versus THE STATE OF ANDHRA PRADESH & ANR. on 7 March 2022
882
[2022] 1 S.C.R. 882
SUPREME COURT REPORTS
[2022] 1 S.C.R.
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YERUVA SAYIREDDY
v.
THE STATE OF ANDHRA PRADESH & ANR.
(Criminal Appeal No. 233 of 2016)
BMARCH 07, 2022
[VINEET SARAN AND ANIRUDDHA BOSE, JJ.]
Code of Criminal Procedure, 1973: s. 394 – Abatement ofappeals – Appeal against conviction and sentence of death or ofCimprisonment – Death of appellant/convict during the pendency ofthe appeal – Amicus curiae, if a near relative of deceased to applyfor continuance of appeal – Held: Counsel appearing as an AmicusCuriae, cannot be treated as a near relative of the deceasedappellant/convict – On facts, application for continuance of theappeal having not been made within 30 days or even thereafter byDany near relative, as per the provision of s. 394, the instant appealwould abate.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.233 of 2016.
From the Judgment and Order dated 11.08.2011 of the High CourtEof Judicature of Andhra Pradesh at Hyderabad in Criminal AppealNo.1678 of 2007.
Shikhil Suri, Ms. Madhu Suri, Ms. Jyoti Suri, Ms. Nikita Thapar,Ms. Vinishma Kaul, Ms. Komal Gupta, Ms. Mahima Aggarwal, Ms.Nidhi, Advs. for the Appellant.
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Mahfooz A. Nazki, Polanki Gowtham, Shaik Mohamad Haneef,T. Vijaya Bhaskar Reddy, K. V. Girish Chowdary, Ms. RajeswariMukherjee, D. Mahesh Babu, Advs. for the Respondents.
The following Order of the Court was passed :
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ORDER
1. The appellant in this case was an accused who was convictedby the Trial Court under Section 302 of the Indian Penal Code, 1860(IPC) for murder of his daughter-in-law. The sentence was confirmedby the High Court and hence, this appeal has been filed.
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2. Admittedly, the appellant has died after being in jail for about 12years. As per Section 394 of the Code of Criminal Procedure, 1973(Cr.P.C.) on the death of the appellant/convict the appeal is to abate.The proviso thereof carries an exception to the effect that a near relativemay, within thirty days of the death of the appellant/convict, apply to theAppellate Court for leave to continue the appeal. The explanation to thesaid proviso defines ‘near relative’ to mean a parent, spouse, linealdescendant, brother or sister. In the present case, there is no applicationfor leave to continue the appeal after the death of the appellant/convict.
3. Mr. Shikhil Suri, learned counsel appearing as an Amicus Curiaeappointed by this Court on behalf of the deceased appellant/convict hassubmitted that this is a very good case where there is every chance ofthe appellant being acquitted and considering the intention of the legislaturein providing an appeal not abating even after the death of the appellant/convict, his oral prayer as an Amicus Curiae be considered as anapplication for continuance of this appeal and appeal be not abated.
4. The appeal is governed by the substantive provision of law.Section 394 of the Cr.P.C. reads as under:
“394. Abatement of appeals. - 1) Every appeal under section 377or section 378 shall finally abate on the death of the accused.
2) Every other appeal under this Chapter (except an appeal froma sentence of fine) shall finally abate on the death of the appellant:
Provided that where the appeal is against a conviction and sentenceof death or of imprisonment, and the appellant dies during thependency of the appeal, any of his near relatives may, within thirtydays of the death of the appellant, apply to the Appellate Courtfor leave to continue the appeal; and if leave is granted, the appealshall not abate.”
5. The counsel, as an Amicus, cannot be treated as a near relativeof the deceased appellant/convict. The application for continuance ofthe appeal having not been made within 30 days or even thereafter byany near relative, in our opinion, as per the provision of Section 394 ofthe Cr.P.C., this appeal would abate. Accordingly, the appeal standsdisposed of as having abated.
Nidhi Jain
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