Victim's Legal Heirs Can Continue Appeal Against Acquittal; Section 394 CrPC Silence Is Discriminatory, Says Rajasthan HC

Rajasthan High Court holds that legal heirs of a deceased complainant-victim fall within Section 2(wa) CrPC and can seek leave to continue an appeal against acquittal, flagging a legislative gap in Section 394 CrPC as violating Article 14.

The Rajasthan High Court has ruled that the legal heirs of a deceased complainant-victim are entitled to seek leave to continue a criminal appeal against acquittal, and that an appellate court cannot simply abate such an appeal on the victim's death without giving the heirs an opportunity to be heard. Justice Anoop Kumar Dhand, sitting singly at the Jaipur Bench, quashed an abatement order passed in 2013 by the Additional District & Sessions Judge No. 8, Jaipur Metropolitan, and restored the underlying appeal. The court went further, observing that the legislature's failure to extend to victims' heirs the same right already available to the near relatives of a deceased accused-appellant under the proviso to Section 394 CrPC amounts to a violation of Article 14 of the Constitution. A copy of the order has been directed to be sent to the Law Commission of India.

The Dispute Before the High Court

The original complainant, Smt. Shimla Sharma, had filed a criminal complaint against three accused persons—Damodar Sharma, Purshottam Sharma, and Ghasi Lal—alleging that they had fraudulently opened a revenue mutation over Khasra No. 102, measuring 1 Beegha 5 Bisva, in their own names after the death of her grandfather, Shri Govind Narayan. The accused allegedly furnished false information to revenue officers and the Sarpanch of the Gram Panchayat, claiming that Govind Narayan had died issueless, when in fact Smt. Shimla Sharma's father, Dhanna Lal Sharma, was his son and legal heir.

On the basis of the complaint, FIR No. 22/2011 was registered at Police Station Kanota, District Jaipur Rural. After investigation, the accused were charge-sheeted for offences under Sections 420, 467, 468, 471 and 120B IPC before the Court of Metropolitan Magistrate No. 24, Bassi, Jaipur Metropolitan. They were acquitted by judgment dated 20.12.2012.

Smt. Shimla Sharma challenged the acquittal before the Additional District & Sessions Judge No. 8, Jaipur Metropolitan. She died on 25.09.2013 during the pendency of that appeal. The appellate court abated the appeal by order dated 21.10.2013 without taking her legal heirs on record. Her husband Brijkishore Pathak (since deceased), and their children Vinay Pathak, Vinita Pathak, and Bulbul Pathak, then filed S.B. Criminal Miscellaneous (Petition) No. 111/2014 before the High Court challenging the abatement order.

The Legal Issue

The central question was whether the petitioners, as legal heirs of the deceased complainant-victim, fall within the definition of “victim” under Section 2(wa) CrPC and are therefore entitled to continue the appeal against acquittal under the proviso to Section 372 CrPC.

The accused raised two objections. First, a maintainability objection: the abatement order was a final and revisable order, so only a revision petition lay against it, not a miscellaneous petition. Second, on merits: even if the definition of “victim” under Section 2(wa) was amended to include legal heirs, Section 394 CrPC—which governs abatement of appeals—had not been correspondingly amended. The proviso to Section 394(2) permits only the near relatives of a deceased accused-appellant to apply for leave to continue an appeal against conviction. No equivalent provision exists for the legal heirs of a deceased complainant-appellant. The accused relied on judgments of the Punjab and Haryana High Court in Avtar Singh Dhesi v. Ajaib Singh @ Jabba, 2015 SCC OnLine P&H 10017, and the Allahabad High Court in Prithvi Singh v. State of U.P., 2022 SCC OnLine All 1253, in support of this position.

How the Bench Reasoned

Justice Dhand began by setting out the statutory framework. Section 394(1) CrPC provides that every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. Section 394(2) provides that every other appeal (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. The proviso to Section 394(2) allows near relatives of a deceased accused-appellant to apply within thirty days for leave to continue an appeal against conviction or sentence of death or imprisonment. No corresponding provision exists for the heirs of a deceased victim-appellant.

The court then turned to Section 2(wa), which defines “victim” as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused has been charged, and expressly includes “his or her guardian or legal heir.” The proviso to Section 372 CrPC gives the victim a right to prefer an appeal against an order of acquittal, conviction for a lesser offence, or imposition of inadequate compensation.

Justice Dhand held that Section 2(wa) must be read expansively, not narrowly. The definition having been deliberately extended to include legal heirs, the right conferred by the proviso to Section 372 must travel with that definition. The court drew on the Supreme Court's reasoning in Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, where the apex court held that the proviso to Section 372 must be given a realistic, liberal, and progressive meaning in favour of the victim, and that a victim as defined in Section 2(wa) is entitled to file an appeal before the court to which an appeal ordinarily lies against an order of conviction.

The court also relied on Mahabir v. State of Haryana, 2025 SCC OnLine SC 184, where the Supreme Court held that the proviso to Section 372 is a substantive enactment creating a right in favour of the victim to prefer an appeal as a matter of right—not merely a procedural carve-out.

Most directly, the court applied the Supreme Court's recent decision in Khem Singh (D) through LRs v. State of Uttaranchal (Now State of Uttarakhand) & Anr., 2025 SCC OnLine SC 1778. In that case, the apex court held that the expression “prefer an appeal” in the proviso to Section 372 must be given an expanded meaning to include prosecution or effective pursuit of an appeal. It further held that Section 394(2) CrPC, which speaks of abatement on the death of the appellant, cannot be simply applied to an appeal filed by a victim or the heir of a victim. The Supreme Court reasoned that Sections 377 and 378 deal with appeals filed by the State against the accused, and that “every other appeal” in Section 394(2) refers to appeals against conviction such as under Section 374—not to appeals filed by victims under the proviso to Section 372. Applying the same logic as the proviso to Section 394(2) for accused-appellants, the heirs of a victim must equally be permitted to continue an appeal filed under the proviso to Section 372.

The court also noted the Supreme Court's observations in Jimmy Jahangir Madan v. Bolly Cariyappa Hindley (dead) by LRs, (2004) 12 SCC 509, and Shri Balasaheb K. Thackerey & Anr. v. Shri Venkat @ Babru, AIRONLINE 2006 SC 316, to the effect that heirs of a deceased complainant can continue prosecution and that a court has the power to permit a relative of the complainant to act as complainant for that purpose.

On the basis of this line of authority, Justice Dhand concluded that the petitioners, being legal heirs of the deceased victim Smt. Shimla Sharma, fall within the definition of “victim” under Section 2(wa) and are entitled to file an application seeking leave to continue the appeal against acquittal.

The Legislative Gap and the Article 14 Observation

Justice Dhand did not stop at deciding the petition. In parting remarks, the court observed that Section 2(wa) and the proviso to Section 372 CrPC were introduced by the Code of Criminal Procedure (Amendment) Act, 2008 (Act No. 5 of 2009), with effect from 31.12.2009. Prior to that amendment, victims had no statutory right to file an appeal against acquittal.

However, when Parliament made those amendments, it did not amend the proviso to Section 394 CrPC. As a result, the proviso to Section 394(2) continues to give near relatives of a deceased accused-appellant the right to apply for leave to continue an appeal against conviction, while no equivalent right is expressly granted to the legal heirs of a deceased victim-appellant. The court observed that the purpose of the existing proviso is to save the convict's family's honour, and that the victim's family members must have the same right to save the victim's family's honour.

The court held that this omission is discriminatory, creates a differentiation between two equals, and amounts to a violation of Article 14 of the Constitution of India. It expressed the hope that the legislature would deliberate on the issue and bring necessary amendments to the proviso to Section 394 CrPC, extending a similar liberty to the legal heirs of a deceased victim-appellant.

Outcome

The impugned order dated 21.10.2013 passed by the Additional District & Sessions Judge No. 8, Jaipur Metropolitan, abating the appeal filed by Smt. Shimla Sharma, was quashed and set aside. The appeal was ordered to be restored to its original number before the appellate court.

The petitioners—Brijkishore Pathak (husband), Vinay Pathak (son), Vinita Pathak (daughter), and Bulbul Pathak (daughter)—were permitted to file an application seeking leave to continue the appeal originally filed by Smt. Shimla Sharma. The appellate court was directed to decide that application on its merits, after hearing both sides, strictly in accordance with law.

The parties were directed to appear before the appellate court on 20.05.2026 and on subsequent dates fixed by that court.

A copy of the order was directed to be sent to the Law Commission of India, New Delhi, to consider and suggest necessary amendments to the proviso to Section 394 CrPC in the interest of legal heirs of deceased victim-appellants.