The question for determination, in fact, is whether the legal representatives of the deceased respondent must be impleaded as party respondents in the present revision petition or not? As already stated hereinabove, there is no provision in the Code providing for substituting the legal representatives of a deceased respondent in a criminal revision petition. It is also settled position in law that even in a private complaint if the accused is convicted and sentenced and he prefers an appeal or revision, the State has to take care of defending the conviction and it has to be heard in support of the conviction and sentence even if the complainant does not put in appearance to support the conviction and sentence, Nevertheless, in my view, the complainant in such a case at least must be served with a notice of the appeal/ revision. It is so because while deciding a case, the Court has to keep in mind two principles viz. (i) no person should be condemned unheard, and (ii) justice should not only be done but it must seem to have been done. Therefore, the application to and the legal representatives of the deceased respondent as such in the revision petition has to be examined against this background.
{Para 7}
8. The petitioner was tried on the basis of a private complaint in a non-cognizable offence and was finally convicted and sentenced. The impugned order provides that out of the amount of fine of Rs. 35,000/-, a sum of Rs. 25,000/- be paid to the complainant, evidently as compensation on account of the dishonour of the cheque issued by the petitioner in favour of the deceased respondent. Thus, a fiscal interest in favour of the deceased had accrued by virtue of the impugned order itself. After his death and in the event of maintaining the impugned order, his legal representatives will be entitled to the amount ordered to be refunded/paid to the deceased respondent. In case the revision petition is allowed, the interest so accrued in favour of the deceased respondent and after his death in favour of his legal representatives, shall stand extinguished. In view of this situation, I am of the view that it will be in the interest of justice in such cases that a person who is interested as a legal representative of the deceased complainant is being heard and defending the order, must be given an opportunity of being heard in the interest of justice.
9. Though the Code does not provide for impleading the legal representatives of a deceased party in a criminal revision petition, yet at the same time the Code also does not provide that the successors of the deceased complainant/respondent in a criminal case were the accused has been convicted and sentenced and financial benefit has accrued by the order of conviction and sentence in favour of the complainant or his legal representatives, they cannot be heard as party respondent in the petition, or the Court is debarred from hearing them. I am, thus, of the view that in the given circumstances of the case, the legal representatives of the deceased respondent must be substituted as party respondents in the revision petition and must be given an opportunity of being heard. This Court under its inherent powers, in my opinion, is fully competent to do so and to afford them an opportunity of being heard in the interest of justice.
IN THE HIGH COURT OF HIMACHAL PRADESH
Cri. M.P.(M) Nos. 416 and 417 of 2001 in Crl. Revn. No. 104 of 1999
Decided On: 12.10.2001
Mohinder Dutt Sharma Vs. Bhagat Ram and Ors.
Hon'ble Judges/Coram:
M.R. Verma, J.
Citation: MANU/HP/0033/2001,– 2002 Cri L J 529 (HP).
1. These two applications one under Section 5 of the Limitation Act (Cr. M.P. (M) No. 417 of 2001) for condonation of delay in filing the other application to bring on record the legal representatives of the deceased respondent No. 1 (Cr.M.P. (M) No. 416 of 2001) have been filed by the applicant/petitioner (hereinafter referred to as 'the petitioner') in Criminal Revision No. 104 of 2002.
2. Briefly stated, facts leading to the filing of these applications are that respondent Bhagat Ram (since deceased) filed a complaint against the petitioner under Sections 138/142 of the Negotiable Instruments Act ('hereafter referred to as the Act'). The learned trial Magistrate convicted the petitioner under Section 138 of the Act and sentenced to pay fine in the sum of Rs. 55,000/- and in default of payment of fine to undergo rigorous imprisonment for three months and further directed that out of the fine imposed, a sum of Rs. 25,000/- shall be paid to complainant Bhagat Ram.
3. Being aggrieved, the petitioner preferred an appeal in which said Bhagat Ram and State of Himachal Pradesh were arrayed as respondents. The appeal was dismissed by the learned Sessions Judge, Shimla, Hence, the revision by the petitioner. During the pendency of the criminal revision petition, said Bhagat Ram died, therefore, these two petitions have been filed by the petitioner.
4. I have heard the learned Counsel for the petitioner and the learned Assistant Advocate General for the respondent-State. However, none appeared for the proposed legal representative(s) on the date of hearing despite service and one of them being duly represented by a Counsel.
Crl. M.P. (M) No. 417 of 2001
5. There is no provision in the Code of Criminal Procedure (hereafter referred to as 'the Code') which provides for bringing on record the legal representatives of the deceased party. Thus, there is no legal requirement of filing any application to bring on record the legal representatives of the deceased within any prescribed period of limitation. Therefore, the application under Section 5 of the Limitation Act (Cri.M.P. (M) No. 417 of 2001) moved by the petitioner is misconceived and deserves rejection on this ground alone and is accordingly rejected.
Crl. M.P. (M) No. 416 of 2001
6. In the case in hand, the petitioner who has been convicted, is alive, therefore, there is no question of abatement of the present revision petition. Even otherwise, a criminal revision ones admitted for hearing, has to be disposed of on merits.
7. The question for determination, in fact, is whether the legal representatives of the deceased respondent must be impleaded as party respondents in the present revision petition or not? As already stated hereinabove, there is no provision in the Code providing for substituting the legal representatives of a deceased respondent in a criminal revision petition. It is also settled position in law that even in a private complaint if the accused is convicted and sentenced and he prefers an appeal or revision, the State has to take care of defending the conviction and it has to be heard in support of the conviction and sentence even if the complainant does not put in appearance to support the conviction and sentence, Nevertheless, in my view, the complainant in such a case at least must be served with a notice of the appeal/ revision. It is so because while deciding a case, the Court has to keep in mind two principles viz. (i) no person should be condemned unheard, and (ii) justice should not only be done but it must seem to have been done. Therefore, the application to and the legal representatives of the deceased respondent as such in the revision petition has to be examined against this background.
8. The petitioner was tried on the basis of a private complaint in a non-cognizable offence and was finally convicted and sentenced. The impugned order provides that out of the amount of fine of Rs. 35,000/-, a sum of Rs. 25,000/- be paid to the complainant, evidently as compensation on account of the dishonour of the cheque issued by the petitioner in favour of the deceased respondent. Thus, a fiscal interest in favour of the deceased had accrued by virtue of the impugned order itself. After his death and in the event of maintaining the impugned order, his legal representatives will be entitled to the amount ordered to be refunded/paid to the deceased respondent. In case the revision petition is allowed, the interest so accrued in favour of the deceased respondent and after his death in favour of his legal representatives, shall stand extinguished. In view of this situation, I am of the view that it will be in the interest of justice in such cases that a person who is interested as a legal representative of the deceased complainant is being heard and defending the order, must be given an opportunity of being heard in the interest of justice.
9. Though the Code does not provide for impleading the legal representatives of a deceased party in a criminal revision petition, yet at the same time the Code also does not provide that the successors of the deceased complainant/respondent in a criminal case were the accused has been convicted and sentenced and financial benefit has accrued by the order of conviction and sentence in favour of the complainant or his legal representatives, they cannot be heard as party respondent in the petition, or the Court is debarred from hearing them. I am, thus, of the view that in the given circumstances of the case, the legal representatives of the deceased respondent must be substituted as party respondents in the revision petition and must be given an opportunity of being heard. This Court under its inherent powers, in my opinion, is fully competent to do so and to afford them an opportunity of being heard in the interest of justice.
10. In Bhupendra Nath Bank v. Brahmachari Giri MANU/WB/0317/1975, the Calcutta High Court, while dealing with a similar question, has held as follows :
"6. In this connection Section 440 of the Code of Criminal Procedure, 1898 may be considered. According to that section no party has any right to be heard either personally or by pleader of any Court when exercising its powers of revision provided that the Court may if it thinks fit when exercising such powers hear any party either personally or by pleader and that nothing in that section shall be deemed to affect Section 439, Sub-section (2). In the present case, however, we are concerned with the Code of Criminal Procedure, 1898. In view of the specific provision in the Code as also from the decisions of the Supreme Court there can be no doubt that in revisional applications there is no right created for the litigants but the Court for ends of justice may hear parties concerned or those interested in the matter or even any other person if it is deemed that he would be assisting the Court in coming to a just and correct decision. We should not also forget the well known principles that justice should not only be done but it must be seen that the people should feel that justice is being done. In the present case the complainant was the petitioner challenging the propriety of the order passed by the learned Magistrate staying the criminal case started by him till the disposal of a civil litigation. As ill luck would have it, the petitioner Bhupendra Nath Barik expired during the pendency of the motion and after his death his heirs have come up before this Court to support the application filed by their predecessor-in-interest. These petitioners are not aliens. They have inherited the properties of Bhupendra as heirs and the instant criminal case relates to some deed in respect of some property of Bhupendra Nath which the petitioners as heirs are entitled to inherit. Clearly, thereafter the petitioners are very much interested in the litigation. In the facts and circumstances I feel that in view of the decision already referred to and the scope of Section 439 of the Code of Criminal Procedure, 1898, this Court can hear them on the application pending before this Court after the death of Bhupendra. If this Court hears the petitioners, no prejudice would be caused to the accused opposite party. Mr. Mukherjee, the learned Advocate appearing on behalf of the accused submitted that in revisional application when there is no provision for substitution it should be taken that substitution is barred. I am afraid, when there is no provision for substitution and when there is no provision in the Code that substitution is barred and when this Court has got inherent jurisdiction for ends of justice to near parties, and specifically when the accused will not be prejudiced in any way, the prayer for the petitioners to be heard in this revision application should be allowed that as I have already indicated there is no provision for, strictly speaking, substitution of the heirs and legal representatives in place of a party by inserting their names in place of the deceased. Of course the petitioners have appeared in this application and they are on record and if they are heard in support of the application filed by their predecessor-in-interest that will for all practical purposes tantamount to substitution, though not in literal sense. The revisional application has already been admitted may be at the instance of Bhupendra, to be decided according to law and to see whether there has been any failure of justice due to the order passed by the learned Magistrate, When the Court has taken up the duty of considering the matter, it is for the Court to decide whom to hear for the best and proper decision of the dispute. The powers of this Court in this respect are not fettered in any way by any provision of law."
11. The ratio in the aforesaid case fully supports the view I have already taken hereinabove. There is no question of prejudice being caused to the petitioner who himself has moved an application to implead the legal representatives of the deceased respondent as party respondents in the petition.
12. As a result, Crl. M.P. (M) No. 416 of 2001 is allowed and the deceased respondent. No. 1 is ordered to be substituted by his proposed legal representatives, namely, Rajinder Kumar and Surinder Kumar whose detailed particulars are given in para 1 of the application.
13. Amended memo of parties be filed within two weeks.
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