Section 435 – Abatement of Appeals

Introduction

Section 435 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the abatement of appeals.

The provision explains when a criminal appeal comes to an end because of the death of the appellant or accused. It also makes an important distinction between appeals involving fine or compensation and other appeals.

The section is procedural in nature and determines whether an appeal can continue after the death of the person who initiated or was involved in the appeal.

Meaning of Section 435

Abatement means the termination of a legal proceeding because of the occurrence of an event that makes its continuation legally impermissible or unnecessary.

Under Section 435, the death of an appellant generally results in the abatement of the appeal, subject to the exceptions provided by the section.

The provision also permits certain appeals to be continued by the legal representative of the deceased appellant where the prescribed requirements are satisfied.

General Rule

The general rule under Section 435 is that every appeal under the BNSS, except an appeal from a sentence of fine, shall finally abate on the death of the appellant.

However, there is an important exception.

Where the appeal is from a conviction and sentence of death or imprisonment, and the appellant dies during the pendency of the appeal, the near relative of the deceased may, within the prescribed period, apply for leave to continue the appeal.

If such leave is granted, the appeal may be continued by the near relative.

Appeals from Sentence of Fine

An appeal from a sentence of fine does not abate merely because the appellant dies.

This is an important exception to the general rule.

The reason is that the consequences of a fine can have a continuing financial impact, including upon the estate of the deceased.

Appeal from Conviction and Imprisonment or Death

Where an appeal is against a conviction resulting in:

• a sentence of death; or
• a sentence of imprisonment,

the death of the appellant ordinarily causes the appeal to abate.

However, the law provides a mechanism through which a near relative may seek permission to continue the appeal.

This allows the appellate court, in appropriate circumstances, to examine the legality and correctness of the conviction and sentence even after the death of the appellant.

Near Relative’s Right to Continue the Appeal

The right of a near relative is not automatic.

The near relative must:

1. make an application to continue the appeal;
2. make the application within the prescribed period; and
3. obtain leave of the Appellate Court.

Only after leave is granted can the near relative continue the appeal.

The provision therefore gives the court control over whether the appeal should proceed after the death of the appellant.

Who Can Apply?

Section 435 permits a near relative of the deceased appellant to apply for leave to continue the appeal in the circumstances specified by the provision.

The statutory concept of near relative is important because the right is not given indiscriminately to every person claiming an interest in the deceased’s affairs.

The application must satisfy the requirements of the section.

Time Limit

The application by the near relative must be made within thirty days from the date of the death of the appellant.

This time limit ensures that applications to revive or continue an appeal are made promptly.

Power of the Appellate Court

The Appellate Court has the power to grant leave to the near relative to continue the appeal.

The court must consider whether the circumstances justify continuation of the appeal.

The grant of leave is therefore a judicial decision and not an automatic consequence of the appellant’s death.

Appeals by the State or Complainant

The abatement rule under Section 435 primarily concerns an appeal brought by the appellant who subsequently dies.

An appeal filed by the State or another competent person is governed by the nature of that particular appeal and the applicable statutory provisions.

Therefore, the death of an accused does not automatically mean that every appeal connected with the accused must abate.

Object and Purpose

The purpose of Section 435 is to balance two competing considerations:

• the personal nature of criminal proceedings; and
• the need to prevent an unjust conviction or sentence from remaining unexamined in appropriate cases.

Ordinarily, a criminal appeal is connected with the personal liability of the appellant. Upon the appellant’s death, there may therefore be no practical reason to continue the proceeding.

However, where a conviction carries serious consequences, the law permits a near relative to seek continuation of the appeal.

Nature of Abatement

Abatement under Section 435 is a statutory consequence.

It does not necessarily mean that the conviction of the deceased person is substantively affirmed on merits. Rather, it means that the appellate proceeding comes to an end in accordance with the statutory rule because of the death of the appellant.

Where the law permits continuation through a near relative and leave is granted, the appeal can proceed despite the death of the original appellant.

Procedure

The procedure can be understood in the following steps:

1. An appeal is pending before an Appellate Court.
2. The appellant dies during the pendency of the appeal.
3. The court determines whether the appeal falls within the general rule of abatement or an exception.
4. If it is an appeal from a sentence of fine, it does not abate merely because of the appellant’s death.
5. In an appeal from conviction and sentence of death or imprisonment, a near relative may apply for leave to continue the appeal.
6. The application must be made within thirty days from the date of death.
7. The Appellate Court considers the application.
8. If leave is granted, the near relative may continue the appeal.
9. If leave is not granted, the appeal abates in accordance with the statutory provision.

Example

Suppose an accused is convicted and sentenced to imprisonment. The accused files an appeal challenging the conviction.

During the pendency of the appeal, the accused dies.

Ordinarily, the appeal will abate. However, a near relative may apply within thirty days seeking leave to continue the appeal.

If the Appellate Court grants leave, the appeal can continue and the conviction and sentence can be examined by the appellate court.

Another Example

Suppose a person is convicted and sentenced only to pay a fine. The person files an appeal against the fine but dies while the appeal is pending.

Because Section 435 makes an exception for an appeal from a sentence of fine, the appeal does not abate merely because of the appellant’s death.

Important Distinction

Abatement vs Dismissal

Abatement occurs because of a statutory event, such as the death of the appellant, which brings the appeal to an end according to law.

Dismissal, on the other hand, is an adjudicatory decision of the court disposing of the appeal.

Therefore, abatement should not automatically be understood as a decision on the merits of the appeal.

Death of Appellant vs Death of Accused

The provision primarily operates in relation to the death of the person who has filed the appeal.

The effect of death must therefore be examined according to the nature of the particular appeal and the person’s position in the proceedings.

Fine vs Imprisonment

An appeal from a sentence of fine is treated differently from an appeal against a sentence of imprisonment or death.

This distinction is specifically important when determining whether the appeal abates upon the death of the appellant.

BNSS and CrPC

Section 435 of the BNSS corresponds to Section 394 of the Code of Criminal Procedure, 1973 (CrPC).

The basic principle remains substantially similar:

• appeals from sentences of fine do not abate merely because of the appellant’s death;
• other appeals generally abate upon death;
• a near relative may seek leave to continue an appeal from a conviction and sentence of death or imprisonment;
• the application must be made within the prescribed period.

The BNSS therefore retains the basic statutory framework concerning abatement of criminal appeals.

Relationship with Other BNSS Provisions

Section 435 operates within the broader appellate framework of the BNSS.

Important connected provisions include:

• Section 418: Appeal against inadequacy of sentence.
• Section 419: Appeal in case of acquittal.
• Section 425: Powers of Appellate Court.
• Section 430: Suspension of sentence pending appeal and release of appellant on bail.
• Section 431: Arrest of accused in appeal from acquittal.
• Section 432: Appellate Court may take further evidence or direct it to be taken.
• Section 433: Procedure where Judges of Court of Appeal are equally divided.
• Section 434: Finality of judgments and orders on appeal.
• Section 435: Abatement of appeals.

Common Confusions

Does every criminal appeal abate when the appellant dies?

No.

An appeal from a sentence of fine is specifically excluded from the general rule of abatement.

Can a family member continue an appeal after the appellant’s death?

Yes, in specified circumstances.

A near relative may apply for leave to continue an appeal from a conviction and sentence of death or imprisonment.

Is continuation by a near relative automatic?

No.

The near relative must obtain leave from the Appellate Court.

How long does a near relative have to apply?

The application must be made within thirty days from the date of the appellant’s death.

Does abatement mean the court has confirmed the conviction?

No.

Abatement is a procedural consequence and is distinct from an appellate decision on the merits of the conviction.

Topic at a Glance

• Topic: Abatement of appeals
• BNSS Section: Section 435
• General rule: Appeal abates upon death of appellant
• Exception: Appeal from a sentence of fine
• Special exception: Near relative may seek leave to continue an appeal from conviction and sentence of death or imprisonment
• Time limit: 30 days from the date of death
• Requirement: Leave of the Appellate Court
• CrPC equivalent: Section 394 CrPC

Quick Revision

• Section 435 BNSS deals with abatement of appeals.
• An appeal generally abates upon the death of the appellant.
• An appeal from a sentence of fine is an exception.
• In an appeal from conviction and sentence of death or imprisonment, a near relative may apply for leave to continue the appeal.
• The application must be made within thirty days from the date of death.
• Continuation of the appeal by a near relative requires leave of the Appellate Court.
• Abatement is a procedural consequence and is not the same as dismissal on merits.
• Section 435 substantially corresponds to Section 394 of the CrPC.

ALSO READ: Section 434 – Finality of judgments and orders on appeal

Conclusion

Section 435 of the BNSS establishes the circumstances in which a criminal appeal comes to an end following the death of the appellant. While the general rule is abatement, the provision preserves important exceptions, particularly for appeals involving a sentence of fine and for serious convictions where a near relative seeks permission to continue the appeal. The provision thus balances the personal nature of criminal proceedings with the need to permit appropriate appellate scrutiny of serious convictions and sentences.