Death Of Appellant Renders Power Of Attorney Inoperative; Legal Aid Counsel Cannot Be Appointed If LRs Fail To Seek Leave To Continue: P&H High Court

The Punjab & Haryana High Court has said that the death of the appellant during the pendency of the plea renders Power of Attorney (POA) inoperative hence legal aid cannot be appointed by the Court on behalf of the deceased appellant if the Legal Representatives fails to seek leave of the Court to continue the appeal.

These observations were made while hearing two appeals wherein the payment of the fines was stayed and during the pendency of the plea, the appellants passed away.

The Court noted that "in the present case, the issue is not that the appellant had failed to engage a legal counsel or the counsel was not putting in appearances; rather, the appellant's demise would have rendered the power of attorney legally inoperative and invalid. As a fundamental principle of law, only a living person possesses the capacity to confer authority upon another to act on their behalf."

Thus, upon the demise of an individual, if the legal heirs or representatives fail to substitute them within the prescribed timeframe, where the substitution is legally permissible subject to statutory limitations, the question arises as to whether the Court should appoint legal aid counsel to represent the deceased, added the Court.

It further said that "the unequivocal answer must be in the negative, as dictated by the well-established Latin maxim Actio Personalis Moritur Cum Persona, which asserts that a personal cause of action extinguishes with the person. However, this principle is not absolute; certain legal claims, particularly those pertaining to proprietary interests or liabilities against the estate of the deceased, remain unaffected and continue to be enforceable posthumously."

The judge said that the legislature has long recognized the inherent impossibility of subjecting a deceased individual to incarceration. Consequently, neither the Code of Criminal Procedure, 1973 (CrPC), nor its successor, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), contains provisions mandating the continuation of criminal proceedings against a deceased accused. 

"Under these procedural frameworks, all pending appeals, except those challenging a sentence of a fine, abate upon the appellant's death. However, in cases where a conviction has been recorded, certain close relatives—such as a parent, spouse, lineal descendant, brother, or sister—may seek leave of the Court to continue the appeal, thereby safeguarding the posthumous legal interests and reputational considerations of the deceased," said the Court.

The Court also concluded that if an appellant dies during the pendency of the appeal and the fine imposed on him by the trial court has been stayed or if the entire fine amount has been deposited with the Court before death, then the appeal will be abated.

In the present case, considering that during the lifetime of the appellant, the Court had stayed the payment of the fine, it held that all the appeals shall stand abated.

Also read: If Accused Dies During Pendency Of Appeal & Fine Imposed Is Stayed Or Deposited Before Death, Appeal Will Abate: Punjab & Haryana High Court

Mr. Deepanshu Kapur, Advocate for Mr. S.S. Rana, Advocate for the appellant in CRA-S-1747-SB-2005.

Mr. Aashish Bishnoi, D.A.G., Haryana and Ms. Trishanjali Sharma, DAG, Haryana.

Mr. Jasjit Singh, DAG, Punjab and Mr. Sukhdev Singh, A.A.G, Punjab.

Mr. Manish Bansal, P.P., U.T., Chandigarh along with Mr. Rajiv Vij, APP for U.T., Chandigarh

Title: Bhola @ Ram Dass v. State of Haryana

Click here to read/download the order