9911796707
TMI Blog2008 (6) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... udge of the Orissa High Court. The appellant-Hari Prasad Chhopolia was convicted for offences punishable under Sections 135(b)(1) of the Customs Act, 1962 (in short the 'Customs Act') and Section 85 (ii), (iii), (viii) and (ix) of the Gold (Control) Act, 1968 (in short the 'Gold Act') by the trial Court. The High Court by the impugned order set aside the conviction and sentence for the offence punishable under Section 135(b)(1) of the Customs Act while upholding the conviction for the offence punishable under Section 85 of the Gold Act. Leave was granted by this Court by order dated 17.1.2002. The matter was listed for hearing on 7.6.2007 when none appeared for the appellant. The matter was adjourned to 12.6.2007 when it was mentioned that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1.2008 for substitution for bringing legal representatives of the appellant on record along with the application for condonation of delay. The only ground indicated in the application seeking condonation was that the legal heirs of the appellant were not aware that the death of their father has to be intimated to the counsel at Delhi for preparing and filing the application for substitution. The moment they knew about this requirement they contacted their counsel and application has been filed on 4.1.2008. 3. Learned Additional Solicitor General appearing for the respondent submitted that there is no scope for accepting the application. Section 394 of the Code of Criminal Procedure, 1973 (in short the 'Code') has no application to an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nued when arising under the Old Code, there is no reason why they should not be continued when arising under the Constitution. If revision petitions may be allowed to be continued after the death of the accused so should appeals, for between them no distinction in principle is possible for the purpose of continuance. (3) The principle on which the hearing of a proceeding may be continued after the death of an accused would appear to be the effect of the sentence on his property in the hands of his legal representatives. If the sentence affects that property, the legal representatives can be said to be interested in the proceeding and allowed to continue it. (4) But where the sentence is not one of fine but of imprisonment, which on the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the explanation appended to this proviso may within 30 days of the death of the appellant, apply to the appellate court for leave to continue the appeal; and if leave is granted, the appeal shall not abate. In the present case, none of the relatives of the deceased within the term of the explanation to the proviso has approached this Court within 30 days for leave to continue the appeal. This present application is filed nearly after a period of 10 years. No explanation is given in this application for not approaching the court within that prescribed period and no sufficient cause is shown for condonation of such undue and inordinate delay of 10 years. A decision of this Court in P.S.R. Sadhanantham v. Arunachalam is relied on in the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... death of her husband. 15. In Bondada Gajapathy Rao v. State of A.P. the appellant was convicted by the High Court under Section 302 of the Penal Code and was sentenced to imprisonment for life. He filed an appeal in this Court by special leave but died during the pendency of the appeal. His sons and daughter applied for substitution as his legal representatives contending that the conviction of their father had resulted in his removal from Government service and if the conviction were set aside the estate will be able to claim the arrears of salary from the date of conviction till the date of his death. This Court declined to permit the legal representatives to continue the appeal on the ground that the claim on the strength of which the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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