‘Section 394 CrPC is discriminatory’: Rajasthan HC lets victim’s heirs continue acquittal appeal

Jaipur: The Rajasthan High Court has held that the legal heirs of a deceased complainant fall within the definition of “victim” under the CrPC. They can therefore continue an appeal against acquittal even if the original complainant dies during the proceedings. Justice Anoop Kumar Dhand passed the judgment on 18 April 2026.

The Court also flagged a legislative gap. Section 394 CrPC lets near relatives of a deceased accused-appellant continue the appeal, but does not extend the same right to the heirs of a deceased victim-appellant. The bench called this “discriminatory” and a violation of Article 14. It directed that a copy of the order be sent to the Law Commission of India for a corrective amendment.

The case began with a complaint by Smt. Shimla Sharma of Murlipura Scheme, Jaipur. She alleged that her grandfather Shri Govind Narayan was the khatedar of a 1 bigha 5 biswa piece of land under Khasra No. 102. After his death in 1974, her father Dhanna Lal was his legal heir. But accused Damodar Sharma, Purshottam Sharma and Ghasi Lal had allegedly colluded with the village Sarpanch and revenue officers to get the land mutated in their own names, by falsely showing that Govind Narayan had died issueless.

FIR No. 22/2011 was registered at Police Station Kanota. The accused were charge-sheeted under Sections 420, 467, 468, 471 and 120B IPC — the clauses covering cheating, forgery, use of forged documents and criminal conspiracy. The Metropolitan Magistrate No. 24, Bassi, acquitted them on 20 December 2012.

Shimla Sharma filed an appeal against the acquittal before the Additional District and Sessions Judge No. 8, Jaipur Metropolitan. She passed away on 25 September 2013 during the appeal. On 21 October 2013, the appellate court abated the appeal without taking her heirs — husband Brijkishore Pathak and children Vinay, Vinita and Bulbul — on record. The heirs moved the High Court under Section 482 CrPC seeking substitution and revival of the appeal.

Advocate H.C. Ganeshia, with Advocate M.L. Sharma, argued that Section 2(wa) CrPC explicitly includes the guardian and legal heir within the definition of “victim”. The heirs therefore had an independent right to pursue the appeal under the proviso to Section 372 CrPC. Counsel relied on Khem Singh (D) through LRs v. State of Uttaranchal, 2025 SCC OnLine SC 1778.

Counsel for the accused raised two objections. First, the abatement order was a final, revisable order, so a criminal misc. petition was not maintainable. Second, Section 394 CrPC allows only the relatives of a deceased accused to continue an appeal — not the heirs of a deceased complainant. He relied on Avtar Singh Dhesi v. Ajaib Singh, 2015 SCC OnLine P&H 10017.

Justice Dhand began with the statutory architecture. Section 2(wa) CrPC defines “victim” as a person who has suffered loss or injury from an act for which the accused has been charged. The definition expressly includes the victim’s guardian or legal heir. The proviso to Section 372 CrPC, introduced by the Code of Criminal Procedure (Amendment) Act, 2008, gives the victim a substantive right to appeal against an acquittal, a conviction for a lesser offence, or inadequate compensation.

The Court relied on Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, where the Supreme Court held that the proviso to Section 372 must be read in a way that is “realistic, liberal, progressive and beneficial to the victim of an offence”. It also cited Mahabir v. State of Haryana, 2025 SCC OnLine SC 184, which treated the proviso as a substantive enactment that creates a right.

On Section 394 CrPC, the bench drew on the Supreme Court’s recent ruling in Khem Singh (D) through LRs. The apex court there held that the abatement clause in Section 394(2) applies to appeals against conviction — not to appeals filed by a victim under the proviso to Section 372. It also held that the phrase “prefer an appeal” must be read to include continuing an appeal. Applying the same logic, the heirs of a victim can continue a pending appeal, since the definition of victim already covers them.

The Court observed: “The legal representative/heir of the ‘victim’ fall under the definition of ‘victim’… they are entitled to continue prosecution against the accused-respondents, in the event of death of the victim-Smt. Shimla Sharma.” In plain terms, a complainant’s family does not lose the right to carry an appeal forward simply because the complainant has died.

The judgment did not stop at resolving the petition. Before parting, Justice Dhand flagged a structural problem in the CrPC. When the legislature amended Section 2(wa) and Section 372 in 2008-2009 to create victim rights, it left Section 394 — which governs abatement of appeals — untouched. The proviso to Section 394(2) allows the near relatives of a deceased accused-appellant to apply for leave to continue the appeal, so that the conviction can be challenged even after the accused’s death. The stated purpose is to save the convict’s family’s honour.

No similar right exists for the legal heirs of a deceased victim-appellant. The bench held that the same logic of family honour applies equally to a victim’s side of the case. The omission, it observed, is “discriminatory and it is creating a differentiation between two equals and the same amounts to utter violation of Article 14 of the Constitution of India”.

The Court directed that a copy of the order be sent to the Law Commission of India so that a corrective amendment to the proviso to Section 394 CrPC can be considered.

The High Court quashed the appellate court’s order dated 21 October 2013 and set aside the abatement. The criminal appeal filed by Shimla Sharma was ordered to be restored to its original number. Her legal heirs were permitted to file an application seeking leave to continue the appeal, which the appellate court must decide on merits after hearing both sides. The parties were directed to appear before the Appellate Court on 20 May 2026. S.B. Criminal Miscellaneous Petition No. 111/2014 was accordingly allowed.

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