Saturday, 4 November 2017

Whether legal heirs of complainant can prosecute complaint after his death?

Two   Judge   Bench   in  Jimmy   Jahangir   Madan   Vs.   Bolly
Caiyappa Hindley (dead) By Lrs., (2004) 12 SCC 509  referring
to this Court’s judgment in  Ashwin Nanubhai Vyas (supra)  had
held that heirs of complainant can continue the prosecution.
Following was held in  paragraph 5:
“5.  The question as to whether the heirs of
the   complainant   can   be   allowed   to   file   an
application under Section 302 of the Code to
continue   the   prosecution   is   no   longer   res
integra as the same has been concluded by a
decision of this Court in the case of Ashwin
Nanubhai   Vyas   v.   State   of   Maharashtra   in
which case the Court was dealing with a case
under   Section   495   of   the   Code   of   Criminal
Procedure,   1898,   which   is   corresponding   to
Section 302 of the Code. In that case, it was
laid   down   that   upon   the   death   of   the
complainant, under the provisions of Section
495   of   the   said   Code,   mother   of   the
complainant could be allowed to continue the
prosecution.   It   was   further   laid   down   that
she could make the application either herself
or   through   a   pleader.   Undisputedly,   in   the
present   case,   the   heirs   themselves   have   not
filed   the   applications   to   continue   the
prosecution, rather the same have been filed
by their power­of­attorney holders....”
15. In view of what has been discussed above, we are of the
view that High Court did not commit any error in allowing the
legal heirs of the complainant to prosecute the Criminal Misc.
Petition before the High Court.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APELLATE JURICTION
CRIMINAL APPEAL NO. 1860 OF 2017
(ARISING OUT OF SLP(CRL.) NO.4580 OF 2017)
CHAND DEVI DAGA & ORS. 
V
MANJU K. HUMATANI & ORS.
Dated:November 03, 2017.

This appeal has been filed against the judgment of the
High Court of Chhatisgarh allowing an IA filed by the legal
representatives of the petitioner in Criminal Misc. Petition.
The respondents aggrieved by the order of the High Court dated
02.02.2017 has filed this appeal. 
2. The brief facts necessary for deciding this appeal are:
Smt. Chandra Narayan Das whose legal representatives are
the respondent Nos.1 to 7 had filed a complaint against the
appellants alleging offence under      Sections 420, 467, 468,
471, 120B, 201 and 34 IPC. The husband of Smt. Chandra Narayan
Das was a lease holder of a shop situated in the Civic Centre,
Bhilai Steel Plant, Chhatisgarh. Shop No.12 was allowed in the
name   of   the   husband   of   appellant   No.1   in   the   year   1959.2
Although,   husband   of   the   appellant   No.1,   a   Member   of
Parliament   had   died   in   1952   itself,   it   was   alleged   by   the
complainant that certain agreements were got executed by legal
heirs of Member of Parliament which constituted commission of
offence. The complaint was dismissed by the Magistrate vide
order   dated   26.02.2015   holding   that  prima   facie  case   under
Sections 420, 467, 468, 120B and 201/34 IPC is not made out
against the accused.
3. Smt. Chandra Narayan Das filed a criminal revision before
the   Additional Sessions Judge, Durg which was dismissed by
VIIIth   Additional   Sessions   Judge,   Durg   vide   judgment   dated
20.11.2015.   Criminal   Misc.   Petition   against   the   said   order
dated 20.11.2015 was filed in the High Court of Chhatisgarh by
Smt. Chandra Narayan Das. The High Court on 18.02.2016 issued
notice   in   the   Criminal   Misc.   Petition.   After   issuance   of
notice   the   petitioner,   Smt.   Chandra   Narayan   Das   died   on
02.04.2016.   An   application   was   filed   by   the   legal   heirs   of
Smt. Chandra Narayan Das   praying them to be substituted in
place of the petitioner. The application was opposed by the
appellants.   The   High   Court   vide   its   order   dated   02.02.2017
allowed   the   said   application   and   permitted   the   legal
representatives of Smt. Chandra Narayan Das to come on record
for prosecuting the Criminal Misc. Petition. Aggrieved by the3
said judgment, the appellants have come up in this appeal.
4. Learned   counsel   for   the   appellants   submits   that   in   the
Code   of   Criminal   Procedure,   1973(hereinafter   referred   to   as
“Code   1973”)   there   is   no   provision   which   permits   legal
representatives   of   the   complainant   to   be   substituted   for
prosecuting the complaint. It is submitted that the present is
a case where no summons were issued to the appellants since
the complaint was rejected by the Magistrate and a criminal
revision challenging the said order has also been dismissed.
It   is   submitted   that   the   High   Court   committed   error   in
permitting   the   legal   representatives   of   complainant   to   be
brought on record for prosecuting the case. 
5. Learned   counsel   for   the   respondents   refuting   the
submission of the learned counsel for the appellants contends
that rejection   of complaint and order of the Sessions Judge
dismissing the criminal revision were under challenge before
the   High   Court   on   the   ground   that  prima   facie  offence was
disclosed in the complaint and courts below committed error in
rejecting the complaint. The offence having been committed by
the   appellants,   the   High   Court   has   every   jurisdiction   to
permit the legal representatives to prosecute the matter in
the event of death of original complainant.   It is submitted
that Code 1973 does not contain any provision that on death of4
complainant, the complaint cannot be allowed to be prosecuted
by any other person including the legal representatives. 
6. We have considered the submissions of the learned counsel
for the parties and perused the records.
7. There   is   no   dispute   regarding   facts   and   events   in   the
present   case.   The   original   complainant   died   during   the
pendency of the Criminal Misc. Petition before the High Court
which was filed challenging the order of the Sessions Judge
rejecting   the   criminal   revision   against   the   order   of
Magistrate dismissing the complaint. 
8. Section   256   of   Code   of   Criminal   Procedure,   1973   is
contained   in   Chapter   XX   with   the   heading   “Trial   of
summons­cases by Magistrates”. Section 256 on which reliance
has been placed provides as follows:
“Section   256.   Non­   appearance   or   death   of
complainant.­(1) If   the   summons   has   been
issued on complaint, and on the day appointed
for the 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   opinion   that   the   personal
attendance   of   the   complainant   is   not
necessary,   the   Magistrate   may   dispense   with5
his attendance and proceed with the case.
(2) The provisions of sub­section (1) shall,
so far as may be, apply also to cases where
the non­appearance of the complainant is due
to his death.”
9. Analogous   provision   to   Section   256   of   Code   1973   was
contained in Section 247 of Criminal Procedure Code, 1898. In
Section 247 the proviso was added in 1955 saying that “where
the Magistrate is of the opinion that personal attendance is
not necessary, he may dispense with such attendance”. The said
proviso took  out  the  rigour of  the  original rule  and  whole
thing was left to the discretion of the Court. Sub­section (1)
of   Section   256   contains   the   above   proviso   in   the   similar
manner. Thus, even in case of trial of summons­case it is not
necessary   or   mandatory   that   after   death   of   complainant   the
complaint is to be rejected, in exercise of the power under
proviso to Section 256(1), the Magistrate can proceed with the
complaint. More so, the present is a case where offence was
alleged under Sections 420, 467, 468, 471, 120B and 201 read
with 34 IPC for which procedure for trial of summons­case was
not applicable and there is no provision in Chapter XIX “Trial
of warrant­cases by Magistrates” containing a provision that
in the event of death of complainant the complaint is to be
rejected.   The   Magistrate   under   Section   249   has   power   to6
discharge   a   case   where   the   complainant   is   absent.   The
discharge under Section 249, however, is hedged with condition
“the offence may be lawfully compounded or is not a cognizable
offence”. Had the Code 1973 intended that in case of death of
complainant in a warrant case the complaint is to be rejected,
the provision would have indicated any such intention which is
clearly absent. 
10. In this context a reference is made to judgment of this
Court in  Ashwin Nanubhai Vyas Vs. State of Maharashtra, AIR
1967   SCC   983.  In   the   said   case   this   Court   had   occasion   to
consider the provisions of Criminal Procedure Code, 1898. The
complainant had filed a complaint against the appellants. The
complaint was filed under Sections 498 and 496 IPC. Accused
was summoned. However, during the pendency of the complaint,
the   complainant   died.   The   complainant’s   mother   applied   for
substituting   her   to   act   as   complainant   and   continue   the
proceedings. Magistrate permitted the mother of complainant to
pursue the complaint against which revision was filed before
the High Court which was dismissed. Aggrieved by the order of
the High Court the appellant had come up before this Court. In
the   above   context   this   Court   considered   the  pari   materia
provisions of the Criminal Procedure Code, 1898 with regard to
Section 247 (now Section 256) it was specifically held that7
said   provision   does   not   furnish   any   valid   analogy.   In
paragraph 4 of the judgment following was observed:
“4 Mr.   Keswani   for   Vyas,   in   support   of   the
abatement   of   the   case,   relied   upon   the
analogy   of   Section   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   Section   259   in   Chapter   XXI
which   deals   with   trial   of   warrant   cases
before   Magistrates.   Under   the   former,   if
summons   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,   Section   247
neither applies nor can it furnish any valid
analogy. Similarly, Section 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
Section 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.”
11.  This Court further had occasion to consider Section 495
of Code 1898 (now Section 302 of Criminal Procedure Code) and
this Court laid down in paragraph 7 as follows:8
“7 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 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.”
12. At this stage reference to Section 302 of the Criminal
Procedure   Code   is   necessary.   Section   302   of   the   Criminal
Procedure Code is contained in Chapter XXIV with the heading
“General provisions as to inquiries and trials”. Section 302
relates to permission to conduct prosecution which is to the
following effect:
“ Section 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 a police officer below the rank
of   Inspector;   but   no   person,   other   than   the
Advocate­General   or   Government   Advocate   or   a
Public Prosecutor or Assistant Public Prosecutor,9
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.”
13. This Court had occasion to consider Sections 256 and
302 in  Balasaheb K. Thackeray & Anr. Vs. Venkat @ Babru,
(2006)   5   SCC   530.  In   the   above   case   complaint   was   filed
under Section 500 read with Section 34 IPC. A petition was
filed under Section 482 of the Code 1973 against the order
of issue of process in the High Court which was dismissed.
SLP  was filed in this Court in which notice was issued and
during   the   pendency   of   the   appeal   it   was   noted   that
complainant had died. It was contended that the complaint
be dismissed on the ground that complainant is dead. This
Court   in   the   above   context   referred   to   Sections   256   and
302. This Court repelled the argument of the appellant that
complaint be dismissed on the ground that complainant had
died. Following was held in paragraphs 3 to 6:
“3.  Learned   counsel   for   the   appellants   with
reference   to   Section   256   of   the   Code
submitted   that   the   complaint   was   to   be
dismissed on the ground of the death of the10
complainant.   As   noted   above   learned   counsel
for Respondent 1’s legal heirs submitted that
the legal heirs of the complainant shall file
an   application   for   permission   to   prosecute
and, therefore, the complaint still survives
consideration.
4.  At   this   juncture   it   is   relevant   to   take
note   of   what   has   been   stated   by   this   Court
earlier   on   the   principles   applicable.   In
Ashwin Nanubhai Vyas v. State of Maharashtra
with reference to Section 495 of the Code of
Criminal   Procedure,   1898   (hereinafter
referred   to   as   “the   old   Code”)   it   was   held
that the Magistrate had the power to permit a
relative   to   act   as   the   complainant   to
continue   the   prosecution.   In   Jimmy   Jahangir
Madan   v.   Bolly   Cariyappa   Hindley   after
referring   to   Ashwin   case   it   was   held   that
heir   of   the   complainant   can   be   allowed   to
file a petition under Section 302 of the Code
to continue the prosecution.
5. Section 302 of the Code reads as under:
“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 a 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.”11
6. To bring in application of Section 302 of
the   Code,   permission   to   conduct   the
prosecution   has   to   be   obtained   from   the
Magistrate  inquiring  into or  trying  a case.
The   Magistrate   is   empowered   to   permit   the
prosecution   to   be   conducted   by   any   person
other than a police officer below the rank of
Inspector;   but   no   person   other   than   the
Advocate   General   or   the   Government   Advocate
or   a   Public   Prosecutor   or   Assistant   Public
Prosecutor shall be entitled to do so without
such permission.”
14. Two   Judge   Bench   in  Jimmy   Jahangir   Madan   Vs.   Bolly
Caiyappa Hindley (dead) By Lrs., (2004) 12 SCC 509  referring
to this Court’s judgment in  Ashwin Nanubhai Vyas (supra)  had
held that heirs of complainant can continue the prosecution.
Following was held in  paragraph 5:
“5.  The question as to whether the heirs of
the   complainant   can   be   allowed   to   file   an
application under Section 302 of the Code to
continue   the   prosecution   is   no   longer   res
integra as the same has been concluded by a
decision of this Court in the case of Ashwin
Nanubhai   Vyas   v.   State   of   Maharashtra   in
which case the Court was dealing with a case
under   Section   495   of   the   Code   of   Criminal
Procedure,   1898,   which   is   corresponding   to
Section 302 of the Code. In that case, it was
laid   down   that   upon   the   death   of   the
complainant, under the provisions of Section
495   of   the   said   Code,   mother   of   the
complainant could be allowed to continue the
prosecution.   It   was   further   laid   down   that
she could make the application either herself
or   through   a   pleader.   Undisputedly,   in   the
present   case,   the   heirs   themselves   have   not
filed   the   applications   to   continue   the
prosecution, rather the same have been filed
by their power­of­attorney holders....”
15. In view of what has been discussed above, we are of the
view that High Court did not commit any error in allowing the
legal heirs of the complainant to prosecute the Criminal Misc.
Petition before the High Court. We do not find any error in
the order of the High Court. The appeal is dismissed.
..........................J.
( A.K. SIKRI )
..........................J.
NEW DELHI,     ( ASHOK BHUSHAN )
November 03, 2017.
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