Counsel/Amicus Curiae Who Appeared For Deceased-Appellant Cannot Be Treated As 'Near Relative' For Continuance Of Appeal U/Sec 394 CrPC : Supreme Court

The Supreme Court observed that an amicus curiae who was appearing for deceased appellant cannot be treated as 'near relative' under Section 394 CrPC for the purpose of continuance of appeal.

The bench comprising Justices Vineet Saran and Aniruddha Bose noted that a criminal appeal filed by a convict will abate on his death if no application for leave to continue the appeal is made within 30 days by a near relative viz. a parent, spouse, lineal descendant, brother or sister.

In this case, the appellant before the Apex Court was convicted by the Trial Court for murder of his daughter in-law. The sentence was confirmed by the High Court. He died during the pendency of appeal before the Supreme Court.

The court noted that as per Section 394 of the Code of Criminal Procedure, 1973, on the death of the appellant/convict the appeal is to abate.

"The proviso thereof carries an exception to the effect that a near relative may, within thirty days of the death of the appellant/convict, apply to the Appellate Court for leave to continue the appeal. The explanation to the said proviso defines 'near relative' to mean a parent, spouse, lineal descendant, brother or sister.", the court noted. The court further noticed that there is no application for leave to continue the appeal after the death of the appellant/convict.

The counsel, who was appearing as an Amicus Curiae, for the deceased-appellant, submitted before the court that there is every chance of acquittal and considering the intention of the legislature in providing an appeal not abating even after the death of the appellant/convict, his oral prayer as an Amicus Curiae be considered as an application for continuance of this appeal and appeal be not abated. Rejected this plea, the court observed:

"The counsel, as an Amicus, cannot be treated as a near relative of the deceased appellant/convict. The application for continuance of the appeal having not been made within 30 days or even thereafter by any near relative, in our opinion, as per the provision of Section 394 of the Cr.P.C., this appeal would abate. Accordingly, the appeal stands disposed of as having abated."

Headnote

Code of Criminal Procedure, 1973 ; Section 394 - Abatement of criminal appeal - Appellant died during pendency of appeal - The counsel, as an Amicus, cannot be treated as a near relative of the deceased appellant/convict - The application for continuance of the appeal having not been made within 30 days or even thereafter by any near relative, as per the provision of Section 394 of the Cr.P.C., this appeal would abate.

Case details

Yeruva Sayireddy vs State of Andhra Pradesh | CrA 233 OF 2016 | 7 March 2022

Citation: 2022 LiveLaw (SC) 257

Coram: Justices Vineet Saran and Aniruddha Bose