# Raj Narayan Singh v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 156
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-18
- **Case number:** Criminal Appeal U/S 372 Cr.P.C. No. 30 of 2020
- **Bench:** Vivek Kumar Birla, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-narayan-singh-v-state-of-u-p-ors-47797
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 372, 377, 378, 394,
394(1), 394(2) & 417 - Criminal Appeal -
against acquittal - concept of Substitution &
Impleadment in Criminal proceedings - during
pendency of the appeal, sole appellant had died
- legal heir filed an impleadment application -
11 All. Raj Narayan Singh Vs. State of U.P.& Ors.
157
Appeal is the creation of statute - there are no
such provisions in Criminal Law govern by the
Criminal Procedure Code to substitute or
implead like in Civil Law of provisions of Code of
Civil Procedure - held, neither the 'substitution
application' nor 'impleadment application' would
be maintainable in case of death of the
appellant in Appeal against acquittal filed under
section
372
Cr.P.C.
-
the
impleadment
application stands rejected - and since, the
appellant had died consequently, the appeal
stands dismissed accordingly. (Para - 7, 8, 10)

Appeal dismissed. (E-11)

List of Cases cited:

## Text

156 INDIAN LAW REPORTS ALLAHABAD SERIES
243Q having regard to the factors laid
down under clause (2), i.e., population of
the area, the density of the population
therein, the revenue generated for local
administration,
the
percentage
of
employment in non-agricultural activities,
the economic importance or such other
factor as he may deem fit. The objection
could be on any of the above aspects, apart
from
inclusion/exclusion. This
is
an
invaluable right conferred in the general
public with avowed object of strengthening
their hands in all facets of local self
governance. In the absence of these villages
being part of the proposal notified under
Section 4, the right to file objection has
been rendered illusory making Section 4 of
the Act redundant. It amounts to notifying
seven villages in the transitional area
without
there
being
any
previous
publication, as required by Section 4. What
cannot be done directly cannot be done
indirectly. It is nothing but colourable
exercise of power.

13.

Sri
Rajiv
Gupta,
learned
Additional
Chief
Standing
Counsel,
submitted that objections were invited from
the general public in respect of the proposal
for inclusion of seven additional villages.
However, we find no such material on
record. The constitutional scheme and the
provisions of the Act lays down the manner
in which objections/suggestions are to be
invited and for such purpose, a notification
under Section 4 of the Act is required to be
issued. This notification is annexure 1
dated 12.12.2020 but it does not make any
proposal for inclusion of the seven villages
in question. As such, we find no force in
the submission of Sri Rajiv Gupta.

14. In view of what has been stated
above, we are of the considered opinion
that the final notification dated 10.8.2022,
in so far as it includes the villages
Garthauli,
Sansaarpur,
Basawanpur,
Mishrauli, Kuraon and Mahulia Khajuha, is
illegal and unconstitutional and it is
quashed to that extent.

15. Although, notifications dated
12.12.2022 and 22.07.2022 are also under
challenge, but no argument has been
advanced in respect thereto. Consequently,
the challenge to these notifications fail.

16. As a result, the petition is allowed
in part.

17. No order as to costs.
----------
(2022) 11 ILRA 156
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.08.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal U/S 372 Cr.P.C. No. 30 of 2020

Raj Narayan Singh ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Dinesh Kumar Yadav, Sri A.R. Nadiawal,
Sri Krishna Prakash

Counsel for the Opposite Parties:
G.A., Sri A.K. Pandey, Sri Ajay Pandey, Sri
L.K. Pandey, Sri Rajiv Lochan Shukla

Criminal Law - Criminal Procedure Code,
1973 - Sections 372, 377, 378, 394,
394(1), 394(2) & 417 - Criminal Appeal -
against acquittal - concept of Substitution &
Impleadment in Criminal proceedings - during
pendency of the appeal, sole appellant had died
- legal heir filed an impleadment application -
11 All. Raj Narayan Singh Vs. State of U.P.& Ors.
157
Appeal is the creation of statute - there are no
such provisions in Criminal Law govern by the
Criminal Procedure Code to substitute or
implead like in Civil Law of provisions of Code of
Civil Procedure - held, neither the 'substitution
application' nor 'impleadment application' would
be maintainable in case of death of the
appellant in Appeal against acquittal filed under
section
372
Cr.P.C.
-
the
impleadment
application stands rejected - and since, the
appellant had died consequently, the appeal
stands dismissed accordingly. (Para - 7, 8, 10)

Appeal dismissed. (E-11)

List of Cases cited:

1. Prithvi Singh Vs St. of UP & ors. (2022 vol. 8 ADJ 29
(DB),

2. Khedu Mohton & ors. Vs St. of Bihar (1971 AIR 66
SC),

3. Jai Prasad Singh Vs St. of UP & ors. (Criminal Misc.
Application (U/section 372 Cr.P.C. (Leave to Appeal)
No. 15 of 2017 decided on 19.07.2022).

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Shiv Shanker Prasad, J.)

1. Heard Sri Dinesh Kumar Yadav,
learned counsel for the appellant, Sri Ajay
Kumar Pandey, learned counsel for accused
respondents and learned A.G.A. for the
State.

2. As per the death certificate
annexed as Annexure No.1 to the
affidavit
filed
in
support
of
the
impleadment application the appellant-
Raj Narayan Singh son of Late Hardutt
died on 20.12.2018. By this application,
the son of the deceased appellant namely
Yashwant Singh is seeking impleadment
as appellant in place of Raj Narayan
Singh to prosecute the present criminal
appeal. The affidavit filed in support of
the present impleadment application was
sworned by him on 18.11.2019 and the
present
application
was
filed
on
17.01.2020.
In
effect
this
is
an
application for substitution of Yashwant
Singh son of Late Raj Narayan Singh,
who was appellant in the present appeal.
Obviously, this application was not filed
immediately after death of the appellant.

3. At this stage, it would be relevant
to take note of Sections 372 and 394
Cr.P.C. which are quoted as under:-

"Section 372:- No appeal to lie,
unless otherwise provided. No appeal
shall lie from any judgment or order of a
Criminal Court except as provided for by
this Code or any other law for the time
being in force.

Section 394:- Abatement of
appeals.

(1) Every appeal under section
377 or section 378 shall finally abate on
the death of the accused.

(2) Every other appeal under
this Chapter (except an appeal from a
sentence of fine) shall finally abate on the
death of the appellant: Provided that
where the appeal is against a conviction
and
sentence
of
death
or
of
imprisonment, and the appellant dies
during the pendency of the appeal, any of
his near relatives may, within thirty 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."

4. A coordinate Bench (of which one
of us was a member) of this Court has
considered the 'proviso' to Section 372
Cr.P.C. as well as provisions of Section
394 Cr.P.C. in detail in the judgement of
Prithvi Singh Vs. State of U.P. and Ors.
2022 (8) ADJ 29 (DB), wherein it was held
158 INDIAN LAW REPORTS ALLAHABAD SERIES
that the appeal filed under 'proviso' to
Section 372 Cr.P.C. would stand abated in
case of death of appellant

5. In Prithvi Singh (Supra) in para 5
this Court has taken into account the
relevant provisions of Code of Criminal
Procedure, 1898, its relevant amendment
by Act No. 26 of 1955, Code of Criminal
Procedure, 1973 with its statements of
objects and reasons, relevant provisions
including Amendment Act 5 of 2009
whereby 'Proviso' to Section 372 Cr.P.C.
was added.

6. The law on the Section 417
Cr.P.C.,
1898,
judgment
of
Hon'ble
Supreme Court in Khedu Mohton and Ors.
Vs. State of Bihar; 1971 AIR 66 SC,
subsequent judgements of various High
Courts on Section 372 (with proviso) i.e.
after
2009
Amendment
have
been
considered in Prithvi Singh (Supra). Para
29, 30, 31, 32, 34, 37, 38, 39, 40, 41, 42,
43, 46 and 48 of the aforesaid judgment are
quoted as under:-

"29. It is, therefore, clear that as
per the golden rule of interpretation, this
''proviso' is a substantive enactment and it
is not merely excepting something out of, or
qualifying what was excepting or goes
before. Therefore, by adding the ''proviso'
in Section 372 of Cr.P.C. 1973 by this
amendment, a right has been created in
favour of the victim.

30. At this stage, it would be
appropriate to take note of the definition of
''victim' as inserted by the Code of
Criminal Procedure (Amendment) Act,
2008 (Act 5 of 2009) by adding sub-section
(wa) in Section 2, which provides that
"victim" means ''a person who has suffered
any loss or injury caused by reason of the
act or omission for which the accused
person
has
been
charged
and
the
expression "victim" includes his or her
guardian or legal heir'.

31. It is also a settled law, as
interpreted by the Supreme Court and
various High Courts, that victim does not
include each and every person or merely an
informant,
who
has
lodged
a
first
information report and the term ''victim'
has to be interpreted as per the definition
noted above. We need not go deep into the
same. Therefore, from a perusal of the
scheme of the right to appeal against
acquittal, as reflected from a reading of the
above noted provisions, it is clear that
initially the right to appeal was exclusively
with the State Government and it was not
available even to the complainant, even if a
public servant was a complainant, leave
alone a private individual or any other
agency.

32. As has already been noticed,
Section 417 of Cr.P.C. 1898 provided for
appeal on behalf of the government in
cases of acquittal and no other person was
authorized to file appeal and that this
provision has undergone a major change in
Cr.P.C.
1973,
Section
378
whereof
provides for appeal in cases of acquittal.
The term local government has been
substituted with several individual agencies
to which we are not concerned, however,
this is to be noted that even the right of a
public servant to file appeal, who is a
complainant, has been made limited to be
exercised within six months and private
complainant can come forward with an
application for grant of special leave to
appeal from the order of acquittal, which
has been limited to sixty days only.
Therefore, clearly, the legislature was
always conscious of the extent to which the
right to appeal is to be provided to different
agencies, where they appear in a different
capacities.
11 All. Raj Narayan Singh Vs. State of U.P.& Ors.
159

34. Now coming to the provisions
regarding abatement of appeals, we may
note that vide Section 431 of Cr.P.C. it was
provided that every appeal under Section
417 (appeal on behalf of government in
case of acquittal) 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
provision has also undergone a substantial
change in Cr.P.C. 1973. Sub-section (1) of
Section 394 of Cr.P.C. 1973 provides that
every appeal under Section 377 or Section
388 shall finally abate on the death of the
accused.

37. The second part of Section 431
of Cr.P.C. 1898, broadly speaking, has now
been changed as significantly a ''proviso' has
been added in sub-section (2) and an
explanation has also been added to the entire
Section 394 of Cr.P.C. 1973. We may take
note of the ''proviso' to Section 394 Cr.P.C.
once again, which provides that ''where the
appeal is against a conviction and sentence
of death or of imprisonment, and the
appellant dies during the pendency of the
appeal, any of his near relatives may, within
thirty 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'. The explanation to Section
394 provides that in this section ''near
relative' means a parent, spouse, lineal
descendant, brother or sister. In the ''proviso'
added to sub-section (2) in Section 394 of
Cr.P.C. 1973 it is important to note that it is
in respect of an appeal against conviction
and sentence of death or of imprisonment and
not in respect of an appeal against acquittal.
It further provides that if the appellant dies
during the pendency of the appeal, any of his
near relatives may, within thirty days from
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. Thus, clearly this proviso to
sub-section (2) of Section 394 Cr.P.C. 1973,
is only in respect of appeal against conviction
and sentence of death or of imprisonment and
only near relatives as provided in the
explanation, may apply for leave to continue
the appeal within thirty days from the death
of the appellant, and if leave is granted, the
appeal shall not abate. Why this provision
was added has been taken note of by the
Supreme Court in Jugal Kishore Khetawat
vs. State of West Bengal (2011) 11 SCC 502
wherein it was held that this is to provide a
machinery whereby the children or the
members of the family of a convicted person
who dies during the appeal, could challenge
the conviction and get rid of the odium
attaching to the family due to such
conviction. Paragraph 7 of the aforesaid
judgment is quoted as under:-

"7. Such a proviso has been added
in
the
following
circumstances:
An
amendment to Section 431 was suggested in
the Bill introduced in the Parliament by a
private Member, Shri K.V. Raghunatha
Reddy. The main object of the amendment
was to provide a machinery whereby the
children or the members of the family of a
convicted person who dies during the appeal
could challenge the conviction and get rid of
the odium attaching to the family as a result
of the conviction. The Law Commission of
India by its Forty-First Report (September
1969, Vol. I, pp. 279-81) found the proposed
amendment
"eminently
sound"
and
recommended that the amendment be made
with certain modifications. Accordingly
Section 394 of the Code of Criminal
Procedure, 1973 has made the said proviso."

 (emphasis supplied)

38. Now, insofar as the appeal
filed against acquittal by the victim under
Section 372 of Cr.P.C. 1973 is concerned,
it would be covered by the plain words of
160 INDIAN LAW REPORTS ALLAHABAD SERIES
sub-section (2) of Section 394 Cr.P.C.
1973, which provides that every other
appeal under this Chapter (except an
appeal from sentence of fine) shall finally
abate on the death of the appellant. In subsection (2) an exception has been carved
out in respect of an appeal from a sentence
of fine, obviously for the reason that it
involves monetary reasons to the benefit of
the victim.

39.
As
already
noticed,
a
substantive right to prefer an appeal against
acquittal was added by the amending Act No.
5 of 2009 by adding a ''proviso' to Section
372 of Cr.P.C. 1973. However, significantly,
no amendment was made in Section 394
Cr.P.C. 1973, which provides for abatement
of appeals.

40. As already noticed, the golden
rule of interpretation is that if the meaning of
words of a statute are plain, effect must be
given irrespective of the consequences. We
may refer to the judgments of the Supreme
Court in cases of Nelson Motis (supra),
Kanailal Sur (supra), Vijay Anand Maharaj
(supra),
Gwalior
Rayan
Silk
(supra),
Raghunath Rai Bareja (supra).

41. In the light of Shah Bhojraj
(supra) and Khedu Mohton (supra) it may be
argued that once an appeal against acquittal
is entertained by the High Court, it becomes
the duty of the High Court to decide the same
irrespective of the fact that the appellant
either does not choose to prosecute it or is
unable to prosecute it for one reason or the
other. In Motiram Ghelabhai (supra) and
Sundaram Pillai (supra), the Supreme Court
laid down that the ''proviso' added to Section
372 Cr.P.C. 1973 is a fresh enactment giving
a substantive right to file appeal against
acquittal to the victim [as defined in Section 2
(wa)], which was added by the same
amending act, being Act No. 5 of 2009.

42. As observed in P. Laxmi Devi
(supra) and Super Cassettes Industries
(supra) it is a settled law that the right to file
an appeal is a statutory right and it can be
circumscribed by condition / conditions of the
statute granting it. In this view of the settled
law, it is extremely important to note that at
the time when the judgment in Khedu Mohton
(supra) was passed by the Supreme Court,
the proviso to Section 372 of Cr.P.C. 1973
was not in existence and in Cr.P.C. 1973
provision of abatement of appeals was
substantially changed in comparison to
Section 431 Cr.P.C. 1898.

43.
In
an
appeal
against
conviction, the right of near relatives to get
themselves substituted within a limited
period was protected so that they may come
forward to prosecute the appeal for the
purpose of removing the stigma on the
family. However, no such right of a victim
was protected. No right to substitute the
victim has been granted under Section 394
Cr.P.C. 1973. It is also pertinent to note
that sub-section (2) of Section 394 Cr.P.C.
1973 provides that every other appeal shall
abate on the death of the appellant.

46. This clearly indicates that the
Supreme Court has also held that the right
to file appeal under Section 372 Cr.P.C.
1973, as added by proviso by amending Act
No. 5 of 2009, is different from the right to
file appeal in case of acquittal as provided
under Section 378 Cr.P.C. 1973. A clear
distinction, therefore, has been noted by the
Supreme Court between Section 372
Cr.P.C. 1973 and Section 378 Cr.P.C.
1973. It may also be noticed that there is
also a difference in the definition of
''victim' as provided under Section 2(wa) of
Cr.P.C.
1973
and
of
the
word
''complainant' as defined under Section
2(d) of Cr.P.C. 1973.

47. It is, therefore, clear that in
view of the amended provision of the Code
of Criminal Procedure, the judgment of the
Supreme Court in case of Khedu Mohton
11 All. Raj Narayan Singh Vs. State of U.P.& Ors.
161
(supra) would not be applicable now and
is, thus, clearly distinguishable.

48. There is yet another aspect of
the matter. Insofar as the rules of
interpretation are concerned, there is a
rule which provides that ''regard to
consequences' are also be taken into
consideration
while
interpreting
any
statutory provision. However, as already
noticed in the preceding paragraphs, this
rule has no application when the words are
acceptable to only one meaning and no
alternate consideration is reasonably open.
There can be no dispute that the provisions
of sub-section (2) of Section 394 Cr.P.C.
1973 are absolutely plain in their language
and must be given effect to irrespective of
the consequences. Therefore, the view that
in case the appeal filed by the victim is not
abated on the death of the appellant, the
consequences may be serious, would not be
applicable in the present case."

 (Emphasis supplied)

7. There is yet another aspect of the
matter. The concept of substitution and
impleadment is foreign to the criminal law.
Appeal is the creation of statute. General
provisions of appeal in criminal law are
governed by the Code of Criminal
Procedure. In Civil Law provisions of Code
of Civil Procedure are applicable which
also provides for substitution as well as for
impleadment. However, there are no such
provisions in the Criminal Procedure Code.
Regarding the issue involved herein the
only exception that may be noted in Section
394 (2) proviso and Explanation to the
Section, which, as already considered in
Prithvi Singh (Supra), does not cover
appeal against acquittal.

8. Therefore, we find that the
appellant cannot be substituted by his son
even by filing an application filed as
'impleadment' application as done in the
present appeal, or say that even if, the
application has been filed as 'impleadment'
application
and
not
as
'substitution'
application.
In
other
words,
neither
substitution application, nor impleadment
application would be maintainable in case
of death of the appellant in appeal against
acquittal filed under Section 372 Cr.P.C.

9. In Prithvi Singh (Supra) it was
also considered that as provided by Section
394 Cr.P.C. even in a case of appeal against
conviction only a limited right has been
given for the purpose of filing substitution
which too could have been filed only
within 30 days and not beyond that.
Whereas this is an appeal against acquittal
wherein the aforesaid provision is not at all
attracted.

10. While considering the judgement
of Prithvi Singh (supra), we have rejected
one substitution application filed under
similar circumstance in Criminal Misc.
Application U/S 372 Cr.P.C. (Leave to
Appeal) No. 15 of 2017 (Jai Prasad Singh
Vs. State of U.P. and Ors.) as not
maintainable. Consequently, the delay
condonation application filed in support of
the substitution application was also
rejected and the appeal was dismissed as
abated.

11. Accordingly, the impleadment
application filed by son of the deceased
appellant
stands
rejected
as
not
maintainable.

In Appeal

1. Since the appellant in the present
case had died consequently, for the
discussions made herein above, the appeal
stands dismissed as abated.
162 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022) 11 ILRA 162
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.11.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal U/S 372 Cr.P.C. No. 79 of 2022

Haji Mahboob Ahmad & Anr. ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Khaleeq Ahmad Khan, Mohemmed Amir
Naqvi, Najam Zafar, Rafat Farooqui

Counsel for the Respondents:
G.A., Shiv P. Shukla

Criminal Law - Criminal Procedure Code,
1973- Section - 2(w)(a), 24 (8), 173, 313,
372, - Indian Penal Code, 1860 - Sections
93, 114, 147, 149, 120-B, 114, 147, 153-A,
153-B, 201, 238, 295, 295-A, 297, 332,
336, 337, 338, 392, 394, 395, 427 & 505 (I)
(b) - Criminal Appeal - against acquittal - two
FIR - with allegations that, the disputed
structure, popularly known as 'Ram Janam
Bhoomi/Badri Masjid' at Ayodhya was demolished
by a group of persons - definition of victim -
appellants application u/section 2 (wa) and 24 (8)
was rejected by trial court - which was never
challenged before superior court - trial court
acquitted all the accused persons - court held
that, - since, the order of trial court while
rejecting the applications of appellants attained
finality - as such in the light of judgement of full
bench court i.e. 'Manoj Kumar Singh Vs St. of UP"
appellants herein cannot be treated as 'Victims' -
thus, they have no locus to challenged the
impugned judgment - accordingly, appeal is
dismissed. (Para - 22, 26, 27)

Appeal dismissed. (E-11)

List of Cases cited:
1. Ashok Singhal and Acharya Giriraj Kishore Vs St. of
U.P., Criminal Revision No. 492 of 2003

2. Dr. Murli Manohar Joshi Vs St. of U.P., Criminal
Revision No. 482 of 2003, (2017) 7 SCC 444

3. St. Vs Pawan Kumar Pandey & ors., Lucknow in
Sessions Trial No. 344 of 1994

4. St. Vs Lal Krishna Advani & ors., Case Crime No.
197 of 1992 and Sessions Trial No. 423 of 2017

5. St. Vs Lutawan & ors., Sessions Trial No. 681 of
1994

6. Manoj Kumar Singh v. St. of U.P. & ors. : 2016
(97) ACC 861

7. Miss Uma Bharti Vs St. of U.P., Criminal Revision
No. 493 of 2003

8. Haji Mahboob Ahmad and Mohammad Siddiq @
Hatiz Mohammad Siddiq Vs St. of U.P. & ors.,
Criminal Revision No. 619 of 2003

9. St. Vs Lal Krishna Advani & ors., Criminal Case No.
768 of 2003

10. Sukhdev Singh Vs St. of Punj., 1982 (2) SCC 439

11. Balraj Vs St. of U.P., 1994 (4) SCC 29

12. Giani Ram Vs St. of Har. & ors., AIR 1995 SC
2452

13. Baldev Singh & anr. Vs St. of Pun., AIR 1996 SC
372

14. Shri Bodhisattwa Gautam Vs Miss. Subhra
Chakraborty, AIR 1996 SC 922

15. Rudul Sah Vs St. of Bihar & anr., AIR 1983 SC
1086

16. St. (through Central Bureau of Investigation) Vs
Kalyan Singh (Former Chief Minister of Uttar Pradesh)
& ors.

17. Vinay Katiyar Vs St. of U.P., Criminal Revision No.
494 of 2003

18. Vishnu Hari Dalmia and Sadhvi Ritambhara Vs St.
of U.P., Criminal Revision No. 495 of 2003