Harbans Singh vs Rattan Singh

A.P. Chowdhri, J.

This order will dispose of Criminal Revisions Nos. 709 and 710 of 1989 arising out of the order of the learned Additional Sessions Judge, Patiala, dated July 6, 1989.

The facts of the case, briefly stated, are that Rattan Singh respondent, since deceased filed a complaint under section 307/326/325/323/120B/148/149 of the Indian Penal Code on March 24, 1988, against the petitioners. After recording preliminary evidence, the Judicial Magistrate 1st class, Patiala, summoned the petitioners under sections 325/323/506/148/149 of the Indian Penal Code. The petitioner filed a revision petition against the summoning order. During the pendency of the revision petition before the Additional Sessions Judge, Rattan Singh complainant (respondent in the revision petition) died on January 18, 1989. His son Baljit Singh made an application for permission to continue the proceedings in the complaint. By the impugned order, the learned Additional Sessions Judge allowed the application and dismissed the revision petition on merits. In these petitions, the aforesaid order of the learned Additional Sessions Judge is assailed.

The learned counsel for the petitioners referred to the provisions of section 256 of the Code of Criminal Procedure (for short, the Code) and emphasized that subsection (2) thereof expressly laid down that nonappearance on account of death will be considered as nonappearance for purposes of subsection (1) of section 256 of the Code. He referred to a number of authorities and contended that the application of Baljit Singh could not be allowed and the only course open to the court was to have dismissed the complaint. Learned Counsel also contended that Rattan Singh having died was not available for crossexamination and this was bound to cause prejudice to the petitioners and for this proposition he placed reliance on Dharam Yash Dev and another v. Late Shri Sanjay Gandhi, 1981 PLR (Delhi Sec.) 80.

The contention of Mr. Bipan Ghai, on the other hand, is that the offences, which were alleged in the complaint and for which the accused had been summoned, were triable as warrant case and the relevant provision is section 249 of the Code Even otherwise, he contended that section 249 did not empower the Magistrate or for that matter the revisional court, which was seized of the case at the material time, to dismiss the complaint. He has also referred to a number of authorities in support of his contention.

I have given my anxious consideration to the respective submissions of the learned counsel.

The offences mentioned in the complaint as also the offences for which the accused were summoned included that offence under section 325, which is triable as a warrant case. The procedure applicable was in Chapter XIX and the relevant provision is section 249. It reads as under :

"249. Absence of complainantWhen the proceedings have been instituted upon complaint and on any day fixed for hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused."

The Magistrate has been given discretion to discharge the accused if the following conditions are satisfied :

(1) The complainant is absent;

(2) The offence is compoundable; or

(3) is not a cognizable offence; and

(4) charge has not been framed.

The discretion conferred is to discharge the accused. It follows by necessary implication that where the complainant is not absent or where the offence is either cognizable or is not compoundable. it is not open to the Magistrate to discharge the accused. The word `absent'' was interpreted by a Division Bench of Jammu & Kashmir High Court in Ali Dev v. Mohd. Sharif and others, AIR 1966 J&K 60. It was held that the words `absent'' and `does not appear come into play when the complainant is in a position to take some decision and either willfully or due to negligence does not exercise his volition in favour of attending the court. In the case of a person who is dead, there can be no question of his keeping away or not appearing before the court or anywhere else. In other words, it was held that where the complainant had died, he could not be deemed to be absent in the sense explained by the learned Judges of the Division Bench. It was, therefore, concluded that section 259 of the old Code, which is analogous to section 249 of the present Code, did not empower the Magistrate to dismiss the complaint on account of death of the complainant. The above authority was followed by a learned Judge of this Court in Balbir Kaur v. Dalip Singh, 1987(2) Recent Criminal Reports 601 : 1988(2) C.L.R. 163. A comparison of section 249 with section 259 of the Code further reveals that while subsection (2) of section 259 expressly lays down that nonappearance of the complainant on account of death is tantamount to nonappearance for the purpose of subsection (1) of section 236 of the Code, there is no such provision made in section 249 of the Code,

Another significant fact which deserves to be mentioned is that Baljit Singh petitioner was himself injured in the occurrence and he could, as of right, file a separate complaint in respect of the injuries suffered by him in the same occurrence. Even learned counsel for the petitioners, does not dispute that even under section 256 of the Code, it is the discretion of the Magistrate to dismiss the complaint for nonappearance of the complainant. The limited question, therefore, which arises for consideration hisWhether the discretion had been rightly exercised by the court below or not ? in my view, the discretion has been rightly exercised by the court below.

In fairness to the learned counsel for the petitioners, reference may be made to the authorities relied on by him. These are :

(1) Purna Chandra Moulik v. Dengar Chandra Pal, 28 Indian Cases 658 (Calcutta) D.B.

(2) Bontu Appala Naidu and others v. Emperor, AIR 1928 Madras 167.

(3) Subbanna Hegde and others v. Dyavappa Gowda, 1980 Cri. L J. 1405.

In Purna Chandra Moulik''s case (supra) the offence was a compoundable one. It will be noticed that the provision which fell for consideration in all the three cases relied on by the learned counsel for the petitioners was section 256 or its analogous section 247 in the old Code. These authorities are therefore, of no assistance.

With regard to Dharam Yash Dev''s case (supra) cited by the learned counsel for the petitioners, it was undoubtedly contended that the complainant having died was not available for crossexamination and that may result in prejudice to the accused. This contention was not accepted and it was held by a learned Single Judge of Delhi High Court that the discretion to permit Mrs. Menaka Gandhi to continue the proceedings was rightly exercised. There is no question of prejudice because the statement made by the complainant, who is since dead, does not constitute evidence against the accused. It was only for purposes of summoning and unless subjected to crossexamination, it will not amount to evidence against the accused.

For these reasons I find no merit in the revision petition, which is accordingly dismissed. Parties through their counsel are directed to appear in the trial Court on March 14, 1991, for further proceedings according to law.