Ashok Kumar vs Abdul Latif and Others

R.P. Sethi, J.—Father of the petitioner Rishi Ram filed a complaint against the respondents under Sections 323, 427 and 451 RPC in the

trial Court of Sub-Registrar Judicial Magistrate, Jamnlu on 25-4-1982. During the pendency of the proceedings, the complainant died and his son

Ashok Kumar the present petitioner filed an application in the trial Court on 26-11-1984 for permission to continue criminal prosecution against

the accused persons which was launched by his father. The trial magistrate vide his order dt. 24-4-1985 directed the prosecuting officer to

conduct the proceedings on behalf of the complainant and proceeded with the case till date when the complaint was dismissed allegedly on the

ground of the absence of the complaint. Petitioner preferred a revision petition and the learned Ist. Addl. Sessions Judge, Jammu, vide the order of

reference has recommended for setting aside the order of the trial Court and prosecution of the complaint in accordance with the provisions of law.

I have heard the learned Counsel for the petitioner and perused the record. No one has appeared for the respondents.

It is true that there is no provision for bringing on record the legal representatives of a party in criminal proceedings but as the penal offence

committed by a person unless from the nature of it is personal to the complainant is an offence against the society and has to be prosecuted in

accordance with the provisions of law till its final disposal. Section 495, Cr. P.C. authorises the magistrate to permit any person to conduct the

prosecution on behalf of the complainant. The application filed by the son of the complainant namely Ashok Kumar appears to have not been

decided and the Prosecuting Officer directed to appear on behalf of the complainant for conducting the case. Once the Prosecuting Officer was

directed to appear for the complainant there was no question for dismissing the complaint for the alleged absence of the complainant either under

Sections 247 or 259 of the Cr. P.C. Merely on the death of the complainant, the complaint filed by him cannot be dismissed nor the accused

acquitted or discharged u/s 247 or 259 Cr. P.C. A Division Bench of Calcutta High Court in Mayabati Halder Vs. The Rent Controller, Calcutta

and Another, :

The view that Section 247 also applies to the non-appearance of the complainant because of his death presupposes by necessary i implication that

Section 247 is a provision dealing with the consequence of the death of a complainant. In repelling such view, the learned Judge has placed

reliance on a decision of the Supreme Court in Ashwin Nanubhai Vyas Vs. State of Maharashtra and Another, . In that case, the complainant died

at the committal stage under Chap. XVIII of the Code, the question that came to be considered by the Supreme Court was whether the

complainant's mother could be substituted as the fit and proper complainant as prayed for by her or whether the proceedings has ipso facto come

to an end on the death of the complainant. While overruling the contention of the accused that the proceedings terminated on the death of the

complainant, the Supreme Court observed:

The Cr. P.C. provides only for the death of an accused or an appellant but does not expressly provide for the death of complainant. The Code

also does not provide for abatement of inquiries and trials although it provides for the abatement of appeals on the death of the accused in 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.

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 substitude

another prosecution agency (subject to such restrictions as may be found) u/s 495, Cr. P.C. is always available.

If Section 247 be regarded as providing the consequence of the death of a complainant, in that case, the Supreme Court would not have observed

that the Code did not expressly provide for the death of a complainant or the abatement of inquiries and trials. It is argued that as to what would

happen on the death of a complainant has to be inferred generally from the Code as observed by the Supreme Court. In our opinion, such

inference is in favour of the continuance of the proceedings rather than the termination thereof as contended on behalf of the appellant. It is true that

Section 247 provides for the acquittal of the accused in the case the complainant does not appear on the day fixed for hearing, but this is subject to

the condition that the Magistrate does not, for some reason he thinks proper, adjourn the hearing of the case to some other day. Therefore, the rule

laid down in Section 247 of the Code for the acquittal of the accused is not an absolute rule. Leaving aside the non-appearance of the complainant

by reason of his death, a complainant may be prevented from appearing due to his illness and other unavoidable circumstances beyond his control.

If the Magistrate is satisfied that there is sufficient cause for the non-appearance of the complainant, he will adjourn the hearing of the case to some

other day. It seems to us that wilful non-appearance is due to some sufficient cause. We do not think we are to decide whether Section 247 also

relates to non-appearance of the complainant due to his death. But assuming that it does, there cannot be any better cause for non-appearance of

the complainant than his death. As has been aleady observed, the maximum actio personalis moritur cum persona has no application to criminal

prosecution; the death of the complaint cannot ipso facto bring about the termination of the proceedings. In such a case, the Magistrate is entitled

to exercise his power u/s 495 of the Code by substituting another prosecution agency. If the Magistrate considers the legal representative of the

deceased complainant to be a fit and proper person, he may go on with the proceedings with the legal representative as the complainant or the

prosecution agent. So, even in case of the death of the complainant, the proceedings does not terminate.

I am in full agreement with the view taken by the Calcutta High Court that the death of complainant cannot ipso facto bring about the termination of

the criminal proceedings and in the case, the Magistrate is authorised o exercise his powers u/s 495, Cr. P.C. by substituting another person or

prosecution agency for the conduct of the criminal case. The trial Court in this case appears to have overlooked the application of the petitioner

and its own order dated 26-11-1984 by which the Prosecuting Officer was directed to conduct the case on behalf of the complainant.

The order impugned in the revision petition dismissing the complaint merely on the death of the complainant, is therefore, in contravention of the

provisions of the Cr. P.C. and liable to be set aside. The reference is accepted and the order impugned is set aside. The case is sent back to the

trial Court with direction to proceed with the case after substituting the petitioner to conduct the case on behalf of the complainant in terms of

Section 495 of the Cr. P.C. The file of the Court below shall be immediately sent back where the learned Counsel for the petitioner has been

directed to appear on 20-5-1989.