Nihal Ahmad v. Ramji Das

Mukerji, J.:— These appeals Nos. 906-920 are under section 476B of the Code of Criminal Procedure filed by one Nihal Ahmad who has since died.

It appears that several people were prosecuted on a charge of dacoity at Saharanpur, the case being one of the now notorious Saharanpur not cases. The learned Sessions Judge acquitted some of the accused persons and convicted others. Nihal Ahmad was one of the persons who was prosecuted and acquitted. On his acquittal Nihal Ahmad presented sixteen petitions before the learned Sessions Judge asking the court to take action under section 476 of the Code of Criminal Procedure and to file a complaint for the prosecution of the witnesses for the prosecution. The learned Sessions Judge took action against only one, viz.: Badri Das who has filed an appeal No. 695 of 1924. He dismissed the application against the rest. Nihal Ahmad came up to this Court in appeal.

Nihal Ahmad is dead and with his death the power which he gave to Mr. A. Aziz, Vakil, to prosecute the case on his behalf came to an end. Mr. Aziz, yesterday, mentioned these cases and stated that it was possible that he would be able to show that without a vakalatnama he was entitled to argue the appeals. His argument seemed to be that it was after all the duty of the court to take up the prosecution and any member of the public could represent matters before an appellate court, Mr. Aziz told the court that he was going away and asked for a postponement. Mr. Nihal Chand, the learned counsel appearing for the opposite parties, objected to a postponement on the ground that his clients were already here and waiting for the disposal of the appeals. Mr. Aziz was therefore told that if he was going away he should hand over his brief (if indeed any brief is left) with a brother practitioner to argue the point if he was so advised. Evidently Mr. Aziz left no instructions; for nobody is appearing to-day on behalf of his client.

The learned Government Advocate appeared and stated that as a Government counsel he had examined the cases and he was not prepared to take up the appeal preferred by Nihal Ahmad and to prosecute them before this Court.

I do not quite see how the learned Government Advocate could come in and express his opinion on the merits. Section 476B gives a right of appeal to a private person and it has nothing to do with the Government. Indeed, it is a Government Officer who has refused to order prosecution and unless there is an instruction to the contrary from the Government, the learned Government Advocate is not likely to make an application to upset the judgment of a Government Officer. However, the matter is not of any importance. The fact remains that the private party who was entitled to move in the matter did move, but has died and there is no question of any survival of the right of appeal. Section 476B says that any person on whose application a Civil Revenue or Criminal Court has refused to make a complaint may appeal etc. etc., The language does not indicate that any legal representative of the deceased appellant may file an appeal, or support it on the death of the appellant.

Mr. Nihal Chand, the learned counsel representing the other side, has argued that under sections 404 and 431 of the Code of Criminal Procedure the appeal abate on the death of the appellant. But so far as I can see, the appeal referred to in section 431 is an appeal either against an acquittal or by a convicted person. This is not a case like that. Section 404 has apparently no application for this is an appeal under the Code.

Although sections 404 and 431 have no application, in my opinion, the right of appeal does not survive.

I declare that the appeals have all abated.

Appeals abated.