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CR.MA/11560/2006 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 11560 of 2006
In
CRIMINAL
APPEAL No. 1010 of 1985
=========================================================
DHARMENDRA
JATASHANKER PANDE
Versus
THE
STATE OF GUJARAT
=========================================================
Appearance :
MR
AD SHAH for Applicant
MR KC SHAH for
Respondent
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.R.VORA
and
HONOURABLE
MR.JUSTICE SHARAD D.DAVE
Date
: 07/03/2007
ORAL
ORDER
: Per : HONOURABLE MR.JUSTICE J.R.VORA)
1 Heard
learned Senior Counsel Mr. A.D. Shah for the applicant and learned
APP Mr. K.C. Shah on behalf the respondent ? State.
2 Criminal
Appeal No. 1010 of 1985 came to be filed by Jatashankar Asharam
Pande, one of the accused of Sessions Case No. 115 of 1984,
against his conviction and sentence for the offence punishable under
Section 304 Part-I of the Indian Penal Code by learned Additional
Sessions Judge, Court No.3, Ahmedabad, on 17th of
October, 1985.
3 During
pendency of the said Appeal No. 1010 of 1985, appellant Jatashankar
Asharam Pande died and, hence, this Application came to be filed by
the applicant Dharmendra Jatashankar Pande, being legal
representative of the appellant, under Section 394 of the Code of
Criminal Procedure for continuation of the said Appeal preferred by
deceased Jatashankar Asharam Pande.
4 Learned
Counsel for the applicant places on record an affidavit sworn by the
applicant stating grounds for continuance of the above said
Criminal Appeal.
5 As
per the provision of the law as contained in Section 394 of the Code
of Criminal Procedure, though it is a normal rule that every
Appeal filed under Section 377 shall finally abate on the death of
the accused, but so far as the appeal against conviction and
sentence is concerned, if the appellant dies during the pendency of
the appeal and within 30 days of the death of the appellant, his near
relative applies to the appellate court for Leave to continue the
appeal, the court may grant the Leave and thereupon the appeal
shall not abate.
6 Having
heard learned counsels for the parties and for the grounds mentioned
in para-2 of the affidavit preferred by the present applicant that on
account of conviction, his father was dismissed from service and,
therefore, the appeal is required to be continued and Leave is
sought for, we consider that this is a fit case in which Leave to
continue the Appeal be granted.
7 In
above view of matter, this Application is allowed. Present applicant
is permitted to continue the appeal and Criminal Appeal No. 1010 of
1985 shall not abate and be continued as aforesaid. Rule is made
absolute.
(J.
R. VORA, J.)
(SHARAD
D DAVE, J.)
pnnair
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