Abatement Meaning

 

                                                                                   

In Black’s Law Dictionary abatement  is described as: (1) the act of eliminating or nullifying; (2) the suspension or defeat of a pending action for a reason unrelated to the merits of the claim; (3) the act of lessening or moderating; diminution in amount or degree; (4) the reduction of a legacy, general or specific, as a result of estate being insufficient to pay all debts and legacies; (5) the act of thrusting oneself tortiously into real estate after the owner dies and before the legal heir enters.

In P. Ramanatha Aiyar’s Advanced Law Lexican, in the context of criminal law, abatement of proceedings connotes their termination without any decision on the merits and without the assent of the prosecutor; and abatement of the main action abates proceedings ancillary or collateral to it.

          The word abatement is implemented both in the civil law as well as the criminal law.

In the context of a civil proceeding, if, on death of any party, either the right to sue, or to be sued, does not survive on the surviving parties, the proceeding would abate.

Order XXII Rules 1-6 lay down procedure of abatement on the death of party.

The death of a plaintiff or defendant does not cause the suit to abate if the right to sue survives. (Rule 1)

 

Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to the effect to be made on the record,. and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. (Rule 2)

 

Where of several plaintiff dies and the right to sue does not survive to the surviving plaintiff or plaintiffs or where the sole plaintiff dies and the right to sue survives, the Court on an application by the legal representative of the deceased plaintiff will make him a party and proceed with the suit. Rule 3(1)

          The legal representative must make an application within the limitation period of ninety days otherwise the suit shall be abated. The defendant, on an application, may be awarded the cost of which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff. [Rule 3(2)]

In the case of death of one of the several defendants and the right to sue survives against the surviving defendant or defendants, or where the sole surviving defendant dies and the right to sue survives, the Court will make him a party to proceed with the suit after an application is filed by legal representative within the limitation period of ninety days. [Rule 4(1)]

Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. [Rule 4(3)]

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 Also Read: Abatement Ab Initio - Meaning and Explanation

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In a criminal action, trial is of the offender i.e., the person who is accused of committing an offence. Therefore, if the accused facing trial dies (or ceases to exist), the trial would abate and so would the appeal against his acquittal, as the person to be prosecuted or convicted, as the case may be, ceases to exist.

Section 435 of Bharatiya Nagrik Suraksha Sanhita, 2023 applies to abatement of appeals. It states that every appeal under Section 418 or 419 of BNSS shall abate on the death of the accused except an appeal from the sentence of fine

However, if the accused has been convicted and he files an appeal against his conviction and sentence of death of imprisonment, on his death during pendency, the proviso to sub-section (2) of Section 435 of Bharatiya Nagrik Suraksha Sanhita  enables his near relatives to file an application, within thirty days of the death, to the Appellate Court for leave to continue the appeal and if leave is granted, the appeal shall not abate. In absence thereof, the appeal abates.

Again explanation to the proviso “near relatives” means a parent, spouse, lineal descendant, brother or sister.

The purpose of the parliament to incorporate proviso of Section 435(2) BNSS is to enable the near relatives of the deceased Appellant convicted to sentence of death is to save the convict’s family’s honour

The Section aims on the principle that the person accused cannot be punished after death and it aims to protect the reputation and estate of the deceased.

There may be instances where the law requires proceedings shall be instituted and prosecuted by a particular person and no one else, in absence of law permitting some other person to continue the proceeding, the proceeding would abate.

In criminal law whether on death of the revisionist, the revision proceeding under Section 397 read with Section 401 of Cr.PC ( Section 438 read with 442 of BNSS,2023) would abate.

Recently, in Syed Shahnawaz Ali vs The State of Madhya Pradesh & Ors Criminal Appeal no. 5590 of 2025), the Hon’ble Supreme Court answered assertively that would depend on the nature of the order under challenge in the revision. If, for example, an accused has invoked the revisional power for testing the correctness of an order rejecting his discharge application, on his death, the revision proceeding would abate because the main trial would abate and, therefore, ancillary proceeding emanating therefrom would automatically abate.  But where the main proceeding survives despite death of the revisionist, the revision may not abate owing to the nature of the revisional proceeding.

Also Read: Last Seen Theory in Criminal Law