MANU/KE/2461/2010

Equivalent Citation: ILR2011(2)Kerala134, 2011(2)KLT41 IN THE HIGH COURT OF KERALA Crl. A. No. 1851 of 2010 Decided On: 01.12.2010 Appellants: Laly Thomas Vs. Respondent: State of Kerala Hon'ble Judges: K. Hema, J. Counsels: For Appellant/Petitioner/Plaintiff: For Respondents/Defendant: Prosecutor Subject: Criminal

P.V. Paulson, Adv.

K.A. Jaleel, C.Y. Vinod Kumar, Advs. and K.S. Sivakumar, Public

Catch Words Mentioned IN

Acts/Rules/Orders: Negotiable Instruments Act - Section 138; Criminal Procedure Code (CrPC) - Sections 255, 256, 256(1) and 302 Cases Referred: Bhagheerathi Amma v. Jeevan Kumar 1981 KLT 875; Chathukutty v. Prasanna 2007 (1) KLT 584 Disposition: Appeal allowed JUDGMENT K. Hema, J. 1. Can an accused be acquitted under Section 256(1) of the Code of Criminal Procedure ('the Code' for short), if legal heir of deceased complainant remains absent? Can legal heir of deceased complainant be treated as "complainant", for the purpose of Section 256(1) of the Code? 2. Appellant's husband filed a complaint against Respondents 2 to 4, before Magistrate Court, alleging offence under Section 138 of Negotiable Instruments Act. During pendency of trial, complainant died. The court did not acquit accused under Section 256(1) of the Code. But prosecution continued since his widow, who is his legal heir filed an application and prosecution continued. The case was posted for evidence. On 14.7.2010, deceased complainant's widow was absent and Trial Court acquitted accused, under Section 256(1) of Code, recording that "complainant was continuously absent". 3. Heard bom sides. Perused the available records. It is seen from the impugned order under Section 256(1) of the Code that Trial Court acquitted accused since legal heir of deceased complainant was absent, stating that "complainant" was continuously absent Thus, acquittal order was passed, treating legal heir of deceased complainant, as "complainant". 4. Can the deceased complainant be treated as "complainant" for purpose of Section 256(1) of the Code? Can the Magistrate acquit an accused under Section 256(1) of the Code, if legal heir of deceased complainant is absent? Section 256 of the Code reads as follows: 256. Non-appearance or death of complainant- (1) If the summons has been issued on complaint and on the day appointed for appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or, where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of Sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. 5. Section 256 of the Code lays down that if complainant does not appear, accused shall be acquitted on certain days, (whether such non-appearance is due to his death or some other reason), unless the court thinks it proper

to adjourn the case. But, the said provision also reveals that not withstanding absence of complainant, Magistrate may proceed with the case, by dispensing with attendance of complainant, if Magistrate is of opinion that personal attendance of complainant is not necessary. 6. Thus, it is clear that even in cases in which complainant dies, the court can still proceed with the case. But, how can this be done? There is no provision in the Code to implead legal heir of the complainant as a "complainant" on death of complainant. There is also no provision in the Code by which, complainant can be substituted on his death, by legal heir or any other person. This position is made clear in Bhagheerathi Amma v. Jeevan Kumar 1981 KLT 875 a decision of a Single Bench of this Court, it is held therein as follows: There is however no provision in the Code for impleading or substituting a person in the place of the Appellant or the complainant. 7. A Division Bench of this Court also approved what is laid down in Bhagheerathi Amma's case and held in Chathukutty v. Prasanna in 2007 (1) KLT 584 thus: 'There is no provision in the Code of Criminal Procedure to implead the legal representatives of a party to a criminal case pending before any criminal court. There is no provision for setting aside abatement or condoning the delay as there is no provision is made for filing a petition for impleading the legal representatives or any period of limitation is prescribed". 8. There is no provision in the Code, which lays down that the complaint abates on death of complainant. The complaint also does not abate on the death of complainant. On the other hand, it is indicated in Section 256 of the Code that the court can still proceed with the case, even on death of complainant. Such continuation of proceedings will be possible by virtue of Section 302 of the Code. Section 302 is extracted as hereunder: 302. Permission to conduct prosecution.- (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission: Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. (2) Any person conducting the prosecution may do so personally or by a pleader. 9. Section 302 of the Code lays down that any Magistrate inquiring into or trying a case may permit prosecution to be conducted by any person other than police officer etc., and such person shall be entitled to conduct the prosecution. So, on the death of complainant, if a legal heir or any other person files an application under Section 302 of the Code, for permission to conduct prosecution, the court may permit such person to do so. 10. The legal heir or legal representative of deceased complainant or some other person who is permitted under Section 302 of the Code to conduct prosecution, after the death of complainant, cannot be treated as a "complainant" or a substitute for the complainant. A legal heir who comes on record on death of complainant is only a person who is permitted by court "to conduct prosecution", under Section 302 of the Code. He cannot be treated as "complainant". 11. Neither Section 302 nor any other provision in the Code lays down that a person who is permitted to conduct prosecution can be considered as "complainant'. A legal heir of deceased complainant does not, therefore, gain status of a "complainant" and he cannot be treated as "complainant", only because he is permitted to conduct prosecution. A reading of Section 256 of the Code itself makes it clear that the case is proceeded with even after death of complainant, only because Magistrate forms an opinion that "complainant's" attendance is not necessary and attendance of complainant is dispensed with. 12. In such circumstances, having found that attendance of complainant is not necessary to proceed with the case, and his attendance is dispensed with, there will be no justification in acquitting accused under Section 256(1) of the Code, on the ground that "complainant" is absent. Therefore, in cases where legal heir of deceased complainant is absent, the court shall not acquit accused under Section 256(1) of the Code, treating legal heir as "complainant". 13. The accused can be acquitted under Section 256(1) of the Code only if "complainant" is absent. Legal heir of deceased complainant cannot be treated as "complainant", for purpose of Section 256 of the Code. Section 256(1) of the Code does not permit the court to acquit an accused, if legal heir of deceased complainant or other person who conducts prosecution after death of complainant, is absent. No arguments were placed to substantiate that this view is not correct. 14. If the person who conducts prosecution on death of complainant does not appear, the Magistrate will have to dispose of the case on merit, under Section 255 of the Code, whether there is evidence on record or not. At any rate, an order of acquittal under Section 256(1) of the Code on the date to which case is posted for evidence is illegal. In such circumstances, impugned order is unsustainable and the following order is passed: 1. The order under challenge is set aside. 2. The Trial Court is directed to take the case on file and proceed in accordance with law. 3. The parties shall appear before the Magistrate Court on 15.3.2011. This appeal is allowed.

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MANU/KA/0555/2001
Equivalent Citation: 2002CivilCC539, [2003]115CompCas770(Kar), ILR2001KAR5401, 2002(1)KarLJ370, 2001(4)KCCR2817 IN THE HIGH COURT OF KARNATAKA AT BANGALORE Criminal Revision Petition Nos. 909 and 910 of 1998 Decided On: 10.08.2001 Appellants: Jimmy Jahangir Madan Vs. Respondent: Bolly Cariyappa Hindley by L.Rs Hon'ble Judges: H.N. Narayan and

Manjula Chellur, JJ. Kumar and Kumar, Advs.

Counsels: For Appellant/Petitioner/Plaintiff: For Respondents/Defendant: Supreme Court Status: Judgment challenged vide Subject: Criminal

Cariappa andCompany, Advs.

MANU/SC/0946/2004 dated: 04.11.200

Catch Words Mentioned IN

Acts/Rules/Orders: Code of Criminal Procedure, 1973 - Sections 198, 200, 256, 302(1) and 302(2); Negotiable Instruments Act, 1881 - Sections 138 and 142; Karnataka High Court Act - Section 8; Indian Succession Act - Sections 213 and 214; Indian Penal Code, 1860 - Sections 493, 495 and 496 Cases Referred: S. Reddappa v. M. Vijaya, 1997(1) Kar. L.J. 291; Abdul Rehman Mahomed Yusuf v. Mahomed Haji Ahmad Agbotwala and Anr., AIR 1960 SC 82, 1960 Cri. L.J. 158 (SC); Ashwin Nanubhai Vyas v. State of Maharashtra and Anr., AIR 1967 SC 983, 1967 Cri. L.J. 946 (SC); A. Sambandam and Anr. v. Natesan by power agent S. Kuppuswami Padayachi, AIR 1966 Mad. 183;Associated Cement Company Ltd. v. Keshvanand, AIR 1998 SC 596, 1998 Cri. L.J. 856 (SC), (1998)1 SCC 687; T.C. Mathai and Anr. v. District and Sessions Judge, Thiruvananthapuram 1999 Cri. L.J. 2092 (SC), AIR 1999 SC 1385, (1999)3 SCC 614; Maddipatta Govindaiah Naidu v. Galakaluri Kamalamma and Anr., 1984 Cri. L.J. 1326 (A.P.); Goutam Ranjan Basu v. Shanta Mukherjee, 1995 Cri. L.J. 1131 (Cal.); T.N. Jayarajan v. Jayarajan, 1992(3) Crimes 666 (Ker.); Ruby Leather Exports v. K. Venue, Rep. by Vandana Chemicals, III-1994(1) 820 (Mad.);Hamsa v. Ibrahim, 1994(1) Crimes 395 (Ker.); Subbanna Hegde and Ors. v. Dyavappa Gowda, 1980(1) Kar. L.J. 384; Raxaben and Ors. v. State of Gujarat and Ors., 1992 Cri. L.J. 2446 Overruled / Reversed by: Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley (Dead) by LRs. Disposition: Revisions disposed of Case Note:

(MANU/SC/0946/20040)

Criminal continuation of prosecution Section 142 of Negotiable Instruments Act, 1881 and Section 302 (2) of Criminal Procedure Code, 1973 - in proceeding initiated under Section 142 on death of complainant whether any other person could be permitted to prosecute complaint and under what provisions of Code Court observed that probate not necessary to prosecute criminal complaint Court held that in proceeding initiated under Section 142 on death of complainant L.Rs or their agents or power of attorney holder could be permitted to prosecute complaint under Section 302 (2).

ORDER H.N. Narayan, J. 1. This reference is made under Section 8 of the Karnataka High Court Act by His Lordship Justice S.R. Bannurmath for deciding three questions formulated by him in view of the law of general importance involved in the reference. The Hon'ble Chief Justice has placed this matter before this Bench for appropriate orders. 2. The questions which are referred for our consideration are:

(1) In a proceeding, initiated under Section 142 of the Negotiable Instruments Act, on the death of the complainant, whether any other person could be permitted to prosecute the complaint and under what provisions of Criminal Procedure Code? (2) If it is held that any person could be permitted to prosecute the complaint who is the competent person who could be permitted to prosecute the complaint? (3) Whether that person has to prosecute the complaint personally or whether he could be permitted to prosecute the complaint through a power of attorney holder? 3. These questions arise in the backdrop of certain facts which came up for consideration in the said revisions. One Mrs. Bolly Cariappa Hindley, an Indian Christian presented a complaint under Section 200 of the Criminal Procedure Code against the accused persons in the Court of VI Additional Chief Metropolitan Magistrate, Bangalore, initiating proceedings for an offence punishable under Section 138 of the Negotiable Instruments Act (the Act for short). The learned Magistrate has taken cognizance of the offence alleged in the complaint. The complainant died during the pendency of the proceedings. Her son and daughter viz., respondents herein who are presently staying in United States of America through their general power of attorney holder filed an application under the provisions of Section 302(1) of the Criminal Procedure Code seeking permission to conduct the prosecution initiated by the deceased complainant. This application was opposed by the petitioner-accused inter alia contending that the application is not maintainable; that the provisions of Section 302 deal with the prosecution to be conducted by any person other than the police officer and the present criminal proceeding not being of such nature, the application itself is not maintainable. This proceeding initiated by the complainant for the offence under Section 138 of the Act is the personal litigation and the present applicants cannot come on record as legal representatives, one like under Civil Procedure Code. The complainant being a Christian is governed by the Indian Succession Act and in the absence of probate in the matter, the respondents cannot come on record. At any rate the present application filed by the general power of attorney holder of the applicants itself is not maintainable even if it is held that the applicants are entitled to prosecute the case. The learned Magistrate has rejected all these contentions and allowed the application filed by the respondents, the legality of which is questioned before the learned Single Judge in these revisions. 4. Similar contentions were canvassed for consideration before the learned Single Judge. It is contended that the application is not filed under Section 302(2) of the Criminal Procedure Code, and the present application filed under Section 302(1) of the Criminal Procedure Code is not maintainable. 5. The respondents refuted these contentions contending that it was permissible for the respondents by virtue of Section 302(2) of the Criminal Procedure Code to seek permission of the Magistrate to prosecute the case further; moreover they are not strangers but the son and daughter of the complainant and they have subsisting interest in the property in respect of which the petitioner had issued cheque which came to be dishonoured. Learned Counsels on both sides relied upon a few decisions in support of their respective contentions. It is in this background the learned Single Judge expressed certain doubts which according to him are not answered in S. Reddappa v. M. Vijaya. It is held in Reddappa's case, supra, that in a proceeding under Section 138 of the Act, the death of the complainant does not ipso facto terminate the criminal proceedings. The questions posed by the learned Single Judge in this revision are, who is the fit and proper person to prosecute and what is the criteria for the same. The learned Judge has posed the questions specially in view of the fact that the respondents are Christians who are basing their legacy on the basis of a Will. The Will is not probated as required under Sections 213 and 214 of the Indian Succes- sion Act and they have come on record to prosecute the case not directly, but through their general power of attorney holder and therefore, whether it is proper for the general power of attorney holder to prosecute the case on behalf of the legal representatives of the respondents in a case of this nature. 6. We have heard the arguments of Sri Srinivas Raghavan for the petitioner and Sri A.H. Bhagawan and M/s. Cariappa and Associates for the respondents. 7. Section

142(a) of the N.I. Act provides that no Court inferior to that of a Metropolitan Magistrate or a Judicial

Magistrate of the First Class shall try any offence punishable under Section 138, except on a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. The first contention of the learned Counsel for the petitioner is based upon the fact that the complaint of this nature can only be initiated in writing, by the payee or, as the case may be, the holder in due course of the cheque and it is a personal complaint. There is no provision in the N.I. Act, 1988 to bring on record any person after the death of the complainant to prosecute the complaint. There is also no such provision in the Code of Criminal Procedure. 7-A. Similar provision is noticed in the Criminal Procedure Code under Section

198. The proviso to

Section 198 of the Criminal Procedure Code suggests certain exceptions as Section 198of the Code prohibits the concerned Magistrate to take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence. Hence, Section 198 imposes a prohibition on the cognizance with an exception and places a limitation on general rule that any person can set the criminal law in motion. However, it is observed by the Supreme Court in Abdul Rehman Mahomed Yusuf v. Mahomed Haji Ahmad Agbotwala and Anr., that it is limited only to offences under Chapter XX of the Indian Penal Code, i.e., offences relating to marriage. But no such exceptions are found in Section 142 of the N.I. Act. It is in the absence of such proviso or exceptions to the Statute which has give rise to certain contentions. The question of this nature arising under the Code came up for consideration before the Apex Court in Ashwin Nanubhai Vyas v. State of Maharashtra and Anr. In that case a private complaint was filed by the wife of the accused alleging offences punishable under Section 493 and 496 of the Indian Penal Code which were exclusively triable by the Court of Sessions. The accused entered appearance and disputed the marriage. During the pendency of the proceedings, the complainant died of heart attack. Her mother applied to the Court for substitution as a fit and proper complainant and expressed her willingness to act as a complainant and to continue the proceedings. That application was strongly resisted by the accused on the ground that only the aggrieved person could be the complainant and on the death of the complainant, the complaint must be treated as abated. The Presidency Magistrate who heard the arguments, rejected the said application and permitted the complainant's mother to continue the prosecution. An application for revision was filed in the High Court of Bombay which was also

rejected. The Supreme Court in the appeal disagreeing with the contentions, that the section insists on a complaint of a person aggrieved, that continued presence of the person aggrieved throughout the trial is also necessary to keep the Court invested with the jurisdiction except in the circumstances mentioned in the proviso, held as under: "The section creates a bar which has to be removed before cognizance is taken. Once the bar is removed, because the proper person has filed a complaint, the section works itself out. If any other restriction was also there the Code would have said so. Not having said so, one must treat the section as fulfilled and worked out. There is nothing in the Code or in Chapter XVIII which says what, if any, consequence would follow if the complainant remains absent at any subsequent hearing after filing the complaint. In this respect Chapter XVIII is distinctly dissimilar to the chapters dealing with the trial of summons and warrant cases where it is specifically provided what consequence follows on the absence of the complaint". While rebutting the further contention of the Counsel for the accused that the Presidency Magistrate has erroneously permitted a substitution of a new complainant which is not provided in the Code which warrants the substitution of one complainant for another, the Apex Court held as under: "It is true that the Presidency Magistrate has used the word 'substitute' but that is not the effect of the order. What the Presidency Magistrate has done is to allow the mother to act as the complainant to continue the prosecution. This power was undoubtedly possessed by the Presidency Magistrate because of Section 495 of the Code by which Courts are empowered (with some exceptions) to authorise the conduct of prosecution by any person. The words 'any person' would indubitably include the mother of the complainant in a case such as this. Section 198 itself contemplates that a complaint may be made by a person other than the person aggrieved and there seems to us no valid reason why in such a serious case we should hold that the death of the complainant puts an end to the prosecution". Hence, there is further contention that a criminal complaint does not necessarily abate on the death of the complainant even in those cases where the making of the complaint by the person aggrieved is made a condition precedent by the Code. Elaborating the discussion on this question, the Apex Court observed as under: "We need not analyse those cases because, in our opinion, unless the Code itself says what is to happen, the power of the Court to substitute another prosecution agency (subject to such restrictions as may be found) under Section 495 of the Code of Criminal Procedure is always available". 8. Having considered the catena of decisions on this question, the Apex Court further held as under: "The later view is distinctly in favour of allowing the prosecution to continue except in those cases where the Code itself says that on the absence of the complainant the accused must be either acquitted or discharged. The present is not one of those cases and in our judgment the Presidency Magistrate was right in proceeding with the inquiry by allowing the mother to carry on the prosecution, and under Section 495 the mother may continue the prosecution herself or through a pleader. We see no reason why we should be astute to find a lacuna in the procedural law by which the trial of such important cases would be stultified by the death of a complainant when all that the Section198 requires is the removal of the bar". Though in use Section 142 of the N.I. Act is not the same as Section 198 of the Criminal Procedure Code the judgment refers to this very contention viz., whether the appropriate substitute can continue and prosecute the complaint after the death of the complainant. 9. Reliance is placed by the learned Counsel for the petitioners to a judgment of the Madras High Court in A. Sambandam and Anr. v. G. Natesan by power agent S. Kuppuswami Padayachi. That was a case where a complaint was instituted by the power of attorney holder as agent of the husband alleging offences punishable under Sections 497 and 498 of the IPC and requested the Magistrate to take cognizance which was refused. The Madras High Court upheld the order of the Magistrate. 10. In Associated Cement Company Limited v. Keshvanand, this question is not strongly raised in that case before the Supreme Court and therefore, the decision has no bearing on the facts of this case. The Supreme Court held in that case that provisions of Section 256 of the Criminal Procedure Code is applicable even where complainant is Company or any other juristic person and the discretion as to whether personal attendance of complaint should be dispensed with or not has to be exercised judicially. The decision rendered by the Supreme Court in T.C. Mathai and Anr. v. District and Sessions Judge, Thiruvananthapuram, relied on by the learned Counsel for the petitioners has also no bearing on this question. It is a case where an agent who is power of attorney holder cannot become a "pleader" for the party in criminal proceedings unless the party secures permission from the Court to appoint him to act in such proceedings. 11. In Maddipatta Govindaiah Naidu v. Galakaluri Kamalamma and Anr., the learned Single Judge of Andhra Pradesh held that criminal proceedings legally instituted do not terminate or abate merely on the death of the complainant, the cause of action for civil action bears no analogy to complaints of crime. Similar is the opinion expressed by the Calcutta High Court in Goutam Ranjan Basu v. Shanta Mukherjee. In T.N. Jayarajan v. Jayarajan, the Kerala High Court considered the scope and purport of Section 256 of the Code in a case arising out of the complaint for an offence under Section 138 of the Act. It held that Sub-section (2) of Section 302 is intended to achieve this objective, it cannot be held that the Magistrate has no option but to acquit the accused when the complainant is dead. In other words, in appropriate cases, the Magistrate can grant permission to the son of the deceased complainant to proceed with the complaint. 12. The Madras High Court in Ruby Leather Exports v. K. Venue, Rep. by Vandana Chemicals, not only considered some of the contentions which have academic interest but also answers certain questions raised in this case. Questions which came up for consideration before the Madras High Court in that case were whether the power of attorney agent of the payee or the holder in the due course of the cheque will be competent to make a complaint in writing under Section 142(a) of the Negotiable Instruments Act, to facilitate valid cognizance being taken by the Magistrate and whether power of attorney executed by the wife, payee or holder in due course in favour of

her husband to file the complaint is maintainable. The other questions which are canvassed and decided are not relevant for our purpose. The first question is answered at para 30 of the judgment which reads as under: "The answer to the question posed, is that a power of Attorney Agent of the payee or the holder in due course of the cheque, will be competent to make a complaint in writing under Section 142(a) of the Negotiable Instruments Act, to facilitate valid cognizance being taken by the Magistrate. It makes no difference, if the power of attorney is executed by one individual in favour of another or executed by a company in favour of a particular person. This verdict, of competency of a power of attorney, to prefer a complaint on behalf of the payee or holder in due course of the cheque, to be taken cognizance of, will not preclude the accused from raising any valid defence open to them under law, including the validity of the power of attorney. I am not in these batch of cases, deciding whether a person authorised in writing by a payee or the holder in due course (individual or a company would suffice to take cognizance, for that issue does not arise directly in these petitions". The second question is answered at para 38 of the judgment homing that the power of attorney agent can competently prosecute under Section 142(a) of the Act. His Lordship Justice K.T. Thomas in Hamsa v. Ibrahim, in fact answered all the doubts raised in this reference. The case before the Kerala High Court in Hamsa's case, supra, was also a complaint regarding bouncing of cheque and the question whether the power of attorney holder of the payee of cheque in question can file and prosecute the complaint has been considered. It is held at para 10 as under: "If a construction is made to the effect that no such complaint as envisaged in Section 142 of the N.I. Act can be made by a power of attorney holder on behalf of the payee or holder in due course, its consequence is the following: Under Clause (b) of the proviso to Section 138 demand for payment should be made in writing within 15 days of receipt of information regarding dishonour of cheque. Under Section 142 the complaint should be made within one month of the date on which the cause of action arose. If the payee or holder in due course falls ill before the expiry of the said period or if he has to leave the station due to unavoidable reasons the cause of action would die out as the complaint cannot be filed by an agent or a power of attorney holder. It would not be in the interest of justice to construe the provision as containing a restriction that the complaint should be made by the payee or the holder in due course (as the case may be) "personally" ". Thus the Madras High Court in M/s. Ruby Leather Exports case, supra, and Kerala High Court in Hamsa's case, supra, have in fact permitted even a power of attorney or his agent to file the complaint under Section 142(a) of the N.I. Act and there is no restriction or bar for the Magistrate to take cognizance upon such presentation. This is insofar as taking cognizance of an offence on presentation not necessarily by the person named therein in the Act. 13. The precise question which needs consideration is after the cognizance of the offence is taken by the Magistrate, whether the complaint abates on the death of the complainant. It is true that there is no specific provision in the N.I. Act. We have to fall back upon the Code of Criminal Procedure. The general provision covering this circumstance is provided under Section 302(2) of the Criminal Procedure Code which empowers any person taking prosecution. Section 302(2) permits any person taking prosecution, may do so personally or by a pleader. However, it is only a procedural provision which enables a person to seek relief in the hands of the Magistrate though it has no reference to the prosecution of the complaint after the death of the complainant. 14. This very question came up for consideration before the learned Single Judge of this Court in S. Reddappa's case, supra. That was a case whereupon the death of the complainant, the son was permitted to prosecute the complaint. Contentions of similar nature were also urged before the learned Single Judge for consideration. The learned Single Judge upon reference to three earlier decisions of this Court and also the rulings of Andhra Pradesh, Kerala and Calcutta High Courts held that the death of a complainant in a case of non-cognizable offence does not abate the prosecution and it is within the discretion of the trying Magistrate in a proper case to allow the complainant to continue by a proper and fit complainant, if the latter is willing. It pointed out in that decision that the decision rendered in Subbanna Hegde and Ors. v. Dyavappa Gowda, the three decisions of the Court have not been brought to the notice of the Court and therefore the object and purport of proviso of Subsection (1) of Section 302 has not been considered. The learned Single Judge has not specifically answered the question as to who is competent to prosecute the complaint after the death of the complainant and what is the consideration and who is that competent person who could be permitted to prosecute the complaint and whether such person can prosecute the complaint personally or through power of attorney. It is true that in S. Reddappa's case, supra, there is no ready made answer to these questions. But the learned Single Judge in the said case proceeded to accept the law laid down in A. Sambandam's case, supra and Raxaben and Ors. v. State of Gujarat and Ors. The reference Court has also referred to the rights of the parties under Indian Succession Act as they are Indian Christians who claimed rights under the Will which was not probated and they have also not prosecuted the case directly but through general power of attorney holder. 15. In our opinion, a probate is not necessary to prosecute a criminal complaint as L.Rs of the complainant. The question is who is competent to prosecute the complaint after the death of the complainant and whether the L.Rs are entitled to prosecute the complaint. In these cases, applications were made by the power of attorney under Section 302(1) of the Criminal Procedure Code only and the main objection was that the application was not filed under Section 302(2) of the Criminal Procedure Code. After perusal of various provisions of the Code and Section 142 of the N.I. Act, we answer the points referred to us as follows: (1) The complaint filed under Section 200 of the Criminal Procedure Code or under Section would not ipso facto terminate or abate upon the death of the complainant. (2) In a proceeding initiated under Section

142 of the N.I. Act

agents or power of attorney holder could be permitted to prosecute the complaint under Section Criminal Procedure Code or under Section 142 of the N.I. Act.

142 of the N.I. Act, on the death of the complainant, his L.Rs, their 302(2) of the

(3) An agent or a power of attorney holder of payee of cheque or holder in due course may be permitted to prosecute the com- plaint unless there is a specific bar in the Code for such persons to lodge the complaint. But once the complaint is filed by the aggrieved persons, the prosecution can be continued by the interested persons or persons named above. 16. Before parting with this case, we may add that no provision of law should be construed so as to defeat the purpose of the Act on technicalities. It is desirable in a case of this nature for L.Rs of the deceased to come on record and prosecute the complaint in person, if possible. In the event of any disability, they may seek the permission of the Court to prosecute such complaint through their agent or power of attorney. If such applications are made, the Criminal Courts shall consider it on merits and pass appropriate orders as required under Section302(2) of the Criminal Procedure Code or under Section 142 of the N.I. Act. 17. These revisions stand disposed of accordingly. The learned Trial Judge is directed to dispose of these matters as expeditiously as possible, but not later than six months from the date of receipt of a copy of this order.

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MANU/SC/0101/1966
Equivalent Citation: AIR1967SC983, 1967AWR37272, (1967)69BOMLR308, 1967CriLJ943, 1967MhLJ312(SC), [1967]1SCR807 IN THE SUPREME COURT OF INDIA Decided On: 10.10.1966 Appellants: Ashwin Nanubhai Vyas Vs. Respondent: State of Maharashtra and Anr. Hon'ble Judges:

M. Hidayatullah, Raghubar Dayal and S. M. Sikri, JJ.

Subject: Criminal

Catch Words Mentioned IN

Acts/Rules/Orders: Code of Criminal Procedure, 1898 - Sections 190, 195, 198, 199-B, 417, 417(3), 495 and 476-B; Indian Penal Code, 1860 - Sections 208, 247, 259, 323, 417, 431, 493 and 496 Citing Reference:

Ishwardas v. Emperor Ramanand v. Crown Labhu v. Crown Hazara Singh v. Crown Emperor v. Nurmohammed Emperor v. Mauj Din U Tin Maung and another v. The King Mohammed Azam v. Emperor In re Ramasamier

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MANU/MH/0333/1925

Case Note: The case debated on whether the complaint filed against the accused under Section 198 of the Code of Criminal Procedure (5 of 1898) could be treated as abated after the death of the complainant The application filed for substitution of complainant after his death was resisted by the accused It was held that the Court had the powers to substitute the prosecution agency under Section 495 of the Code Thus the complaint could not be treated as abated and the appeal made by the accused was rejected JUDGMENT Hidayatullah, J. 1. In this appeal, by special leave, against the judgment and order of the High Court of Bombay, August 25, 1965, the appellant Ashwin Nanubhai Vyas is an accused before the Presidency Magistrate's 4th Court at Girgaon, Bombay. The case was started on the complaint under s. 198, Code of Criminal Procedure of one Kusum Vithal Abhyankar, who charged him with offences under Sections 417, 493 and 496 of the Indian Penal Code. Kusum's complaint was that Vyas went through a sham marriage with her, before a person who posed as an Officer from the office of the Registrar for Marriages. Subsequently, Vyas abandoned her and married another. On being questioned Vyas told her (Kusum) that he had never married her, as the whole affair was a sham. Kusum alleged that she had become pregnant as a result of the cohabitation but in view of her serious heart ailment Vyas took her to a clinic where under medical advice and on certificate granted by Vyas an abortion was caused to save Kusum's life. 2. The complaint was filed on November 1, 1963 and Kusum was examined by the Presidency Magistrate. Vyas was then summoned to Court. On November 29, Kusum unfortunately died of a heart attack Kusum's mother, who is the 2nd respondent in this appeal, then applied to the Court for substitution as, a fit and proper complainant in the case. She expressed her willingness to act as a complainant and to continue the proceedings. This application was strongly resisted by Vyas who contended that the trial of offences under

Sections 493 and 496of the Indian Penal Code was governed by s. 198 of the Code of Criminal Procedure and only the aggrieved person could be the complainant and on Kusum's death the complaint must be treated as abated. The Presidency Magistrate by his order, April 3, 1964, rejected the objection and decided to proceed with the complaint with Kusum's mother as the complainant. Vyas then filed an application for revision in the High Court at Bombay and by the Judgment and order now impugned his petition for revision was rejected. The question that arises in this appeal is whether on the death of Kusum the proceedings ipso facto came to an end or could be continued in the manner ordered by the Presidency Magistrate. 3. The Code of Criminal Procedure provides only for the death of an accused or an appellant but does not expressly provide for the death of a complaint. The Code also does not provide for the abatement of inquiries and trials although it provides for the abatement of appeals on the death of the accused, in respect of appeals under Sections 411A(2) and 417 and on the death of an appellant in all appeals except an appeal from a sentence of fine. Therefore, what happens on the death of a complainant in a case started on a complaint has to be inferred generally from the provisions of the Code. 4. The Code by Chapter XV, which is to be found in Part VI (Proceedings in Prosecutions), Provides for the jurisdiction of a criminal court in inquiries and trials. This Chapter is divided into two Parts - A (Place of Inquiry of Trial) and B (Conditions requisite for initiation of Proceedings). Part B consists of Sections 190 to 199B. Section 190 lays down, inter alia, that any Presidency Magistrate may take cognizance of any offence upon receiving a complaint of fact which constitutes such offence. Sections 195 to 199, however, place certain restrictions upon the power of the Chief Presidency Magistrate and other courts to take cognizance of cases. One such restriction is to be found in s. 198. It provides. "198. Prosecution for breach of contract, defamation and offences against marriage. 5. No Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Indian Penal Code or under Sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence. 6. Provided that, where the person so aggrieved is a woman who, according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his or her behalf : Provided further that . . . . ........ 7. The complaint of Kusum was filed to remove the bar contained in this section although for the offence under s. 417 no such bar existed. The offences under Sections 493 (a man by deceit causing a woman not lawfully married to him to believe that she is lawfully married to him and to cohabit with him in that belief) and 496 (a person with fraudulent intention going through the ceremony of being married, knowing that he is not thereby lawfully married) are non-cognizable, not compoundable and exclusively triable by Court of Session. They are serious offences, being punishable with imprisonment extending to 10 and 7 years respectively. The Presidency Magistrate, was not trying the case but only inquiring into it with a view to its committal to the Court of Session if the facts justified a committal. During this inquiry Kusum died. We have to determine what is the effect of the death of a complainant on an inquiry under Chapter XVIII in respect of offences requiring a complaint by the person aggrieved, after the complaint has been filed. 8. Mr. Keswani for Vyas, in support of the abatement of the case, relied upon the analogy of s.

431 under which

appeals abate and Sections 247 and 259 under which on the complainant remaining absent, the court can acquit or discharge the accused. These analogies do not avail him because they provide for special situations. Inquiries and trials before the court are of several kinds. Section 247 occurs in Chapter XX which deals with the trial of summons cases by a Magistrate and s. 259 in Chapter XXI which deals with trial of warrant cases before Magistrates. Under the former, if summon is issued on a complaint and the complainant on any day remains absent from the court, unless it decides to proceed with the trial, must acquit the accused. This can only happen in the trial of cases, which are punishable with imprisonment of less than one year. This not being the trial of a summons case but a committal inquiry, s. 247 neither applies nor can it furnish any valid analogy. Similarly, s.

259, which occurs in the Chapter on the trial of warrant cases, that is to say, cases triable by a Magistrate and

punishable with imprisonment exceeding one year can furnish no analogy. Under s. 259, if the offence being tried as a Warrant case is compoundable or is not cognizable the Magistrate may discharge the accused before the charge is framed if the complainant remains absent. Once again this section cannot apply because the Presidency Magistrate was not trying the case under Chapter XXI. 9. This case was being heard under Chapter XVIII which divides committal cases into two classes (a) those commenced on a police report and (b) other cases. The first kind is tried under the procedure laid down in s. 207A. With that procedure we are not concerned. The other cases are tried under the procedure as laid down in the other provisions of Chapter XVIII. Section 208 of this Chapter provides that in any proceeding instituted otherwise than on police report the Magistrate shall "when the accused appears or is brought before him, proceed to hear the complainant (if any) and take in manner hereinafter provided all such evidence as may be produced in support of the prosecution or on behalf of the accused, or as may be called for by the Magistrate." The Magistrate then hears evidence for the prosecution unless he makes an order of commitment and after recording the evidence and examining the accused (if necessary) frames a charge. He may, after hearing further evidence, which the accused may wish to produce (unless for reasons to be recorded, the Magistrate deems it unnecessary to do so) either discharge the accused cancelling the charge or commit him to stand his trial before the Court of Session. There is no provision about the acquittal or discharge of the accused on the failure of the complainant to attend the court. This is not an omission but a deliberate departure from the Chapters on the trial of summons and warrant cases. In such trials, on the absence of the complainant, the accused is either acquitted or

discharged. The intention appears to be that the Magistrate should proceed with the inquiry because had it not been so intended, the Code would have said what would happen if the complainant remains absent. 10. Mr. Keswani, however, contends that s. 198 provides that the cognizance of the case can only be taken on the complaint of a person aggrieved and the only exception to this general rule is where the complainant is a woman, who according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint. He contends that what applies to the initiation of the proceeding must also apply to the continuance of the proceeding. He submits that if cognizance could not be taken unless a complaint was made in the manner provided in the section, the court cannot proceed with the inquiry unless the same condition continues to exist. In other words, because the section insists on a complaint of a person aggrieved, Mr. Keswani contends that continued presence of the person aggrieved throughout the trial is also necessary to keep the court invested with its jurisdiction except in the circumstances mentioned in the proviso and summarised above. We do not agree. The section creates a bar which has to be removed before cognizance is taken. Once the bar is removed, because the proper person has filed a complaint, the section works itself out. If any other restriction was also there the Code would have said so. Not having said so, one must treat the section as fulfilled and worked out. There is nothing in the Code or in Chapter XVIII which says what, if any, consequence would follow if the complainant remains absent at any subsequent hearing after filing the complaint. In this respect Chapter XVIII is distinctly dissimilar to the Chapters dealing with the trial of summons and warrant cases where it is specifically provided what consequence follows on the absence of the complainant. 11. Mr. Keswani contends that the Presidency Magistrate has made a "substitution" of a new complainant and there is nothing in the Code which warrants the substitution of one complainant for another. It is true that the Presidency Magistrate has used the word "substitute" but that is not the effect of the order. What the Presidency Magistrate has done is to allow the mother to act as the complainant to continue the prosecution. This power was undoubtedly possessed by the Presidency Magistrate because of s. 495 of the Code by which courts are empowered (with some exceptions) to authorise the conduct of prosecution by any person. The words 'any person' would indubitably include the mother of the complainant in a case such as this. Section 198 itself contemplates that a complaint may be made by a person other than the person aggrieved and there seems to us no valid reason why in such a serious case we should hold that the death of the complainant puts an end to the prosecution. 12. In support of his contention Mr. Keswani has cited some cases of the High Courts in which on the death of the complainant the prosecution was held to have abated. Chief among them are Ishwardas v. Emperor 7 Cri. L.J. 290, Ramanand v. Crown 40 I.C. 1008 and Labhu v. Crown 52 I.C. 797. The first of these cases was a prosecution for defamation and the second a trial for an offence under s. 323, Indian Penal Code. The third followed the second. The first two cases here mentioned were overruled by the Lahore High Court in Hazara Singh v. Crown I.L.R. 2 Lah. 27 wherein it was laid down that such cases do not necessarily abate. Mr. Keswani also relied upon several cases which arose under s. 417(3) and 476B of the Code of Criminal Procedure in which appeals were held to have abated. We need not refer to these cases because they arose under different circumstances and were certainly not inquiries with a view to committal under Chapter XVIII of the Code. Mr. Hathi, who appeared on behalf of the State of Maharashtra, drew our attention to many later cases in which it has been held (dissenting from the cases relied upon by Mr. Keswani) that a criminal complaint does not necessarily abate on the death of the complainant even in those cases where the making of the complaint by the person aggrieved is made a condition precedent by the Code. We need not analyse those cases because, in our opinion, unless the Code itself says what is to happen, the power of the court to substitute another prosecution agency (subject to such restrictions as may be found) under s. 495 of the Code of Criminal Procedure is always available. Reference may, however, be made to the following : Emperor v. Nurmohammed 8 Cri. L.J. 190, Emperor v. Mauj Din A.I.R. 1924 Lah. 72, U Tin Maung and another v. The KingA.I.R. 1941 Rang. 202, Mohammed Azam v. Emperor MANU/MH/0333/1925 : AIR1926Bom178 and In re Ramasamier A.I.R. 16 Cri. L.J. 713. None of the cases cited either for the one side or the other directly arose under s. 198 first part in a committal proceeding. The later view is distinctly in favour of allowing the prosecution to continue except in those cases where the Code itself says that on the absence of the complainant the accused must be either acquitted or discharged. The present is not one of those cases and in our judgment the Presidency Magistrate was right in proceeding with the inquiry by allowing the mother to carry on the prosecution, and under s. 495 the mother may continue the prosecution herself or through a pleader. We see no reason why we should be astute to find a lacuna in the procedural law by which the trial of such important cases would be stultified by the death of a complainant when all that the s. 198 requires is the removal of the bar. The appeal fails and it will be dismissed. Y.P. 13. Appeal dismissed.

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