Summary
The appellant died while his appeal against a murder conviction was pending. No near relative applied for leave to continue it. Appointed amicus curiae urged that the appeal had prospects of success and asked orally to proceed. The Court held that counsel could not be treated as a statutory near relative and disposed of the appeal as abated without examining the conviction on its merits.
Issues
- Whether appointed amicus curiae could seek continuation of the deceased appellant’s criminal appeal as a near relative.
- Whether the appeal survived without an application by a qualifying relative.
Provisions considered
- Section 394(2), proviso and Explanation, Code of Criminal Procedure, 1973For the appeal against conviction and imprisonment, continuation after the appellant’s death required leave sought by a qualifying near relative. Appointed counsel did not fall within that defined class. (¶¶ 2, 4-5)
Held
- The proviso permitted a parent, spouse, lineal descendant, brother or sister to apply for leave to continue the appeal after the appellant’s death. No such relative had applied within thirty days or thereafter in this case. (¶¶ 2, 5)
- An amicus curiae representing the deceased appellant could not be treated as a near relative. Counsel’s assessment of favourable merits and oral request did not satisfy the statutory requirement for continuation. (¶ 3-5)
- The appeal consequently abated. Its disposal did not involve adjudication of counsel’s contention that the conviction might be reversed. (¶ 3-5)
Result
Appeal disposed of as abated following the appellant’s death, no near relative having applied for leave to continue it.