Kamo Thakur vs The State of Bihar and Others

Gopal Prasad, J.—Heard learned counsel for the appellant and learned counsel for the State.

This appeal is directed against the judgment of acquittal dated 9th June, 1998, passed by Md. Ali, Additional Sessions Judge II, Khagaria, in Cr. Appeal No. 51 of 1997, by which order of conviction and sentence passed by Shri G. K. Mallik, Judicial Magistrate Ist Class, Khagaria, Complaint Case No. 136 of 1991, has been set aside.

The prosecution case that the appellant filed a complaint against the respondent for offence u/s 144, 147 and 379 I.P.C. alleging therein that on 02. 04. 1991, at 6 A.M. the complainant, Naga Thakur had went to see his wheat and khesari crop grown by him. He saw that about 100 persons harvesting his crop. The complainant protested, but the accused persons forcibly harvested crop and were about to assault the complainant and took away the wheat crop worth Rs. 4,000/- and khesari crop worth Rs. 8,000/- .

The complainant went to the police station, but the police did not take notice of the complaint and so complaint petition was filed in court. On the said complaint the complainant was examined on oath after taking cognizance, notices were issued and during trial after framing of the charge, six witnesses were examined on behalf of prosecution and one witness examined by defence and order of conviction recorded under Sections 144, 143 and 379 I.P.C.

The accused persons preferred appeal before the Sessions Judge. However, in the aforesaid appeal the complainant was not made a party and appeal was disposed of without notice setting aside the order of conviction and sentence recorded by the trial court and respondents were acquitted and appeal was allowed behind back of the complainant and order of acquittal recorded by the Sessions Court setting aside the judgment and order of trial court this appeal was preferred.

However during pendency of the appeal the complainant died and hence a I.A. petition has been filed by his sons Birendra Thakur and Vilekshan Thakur filed bearing I.A. No. 2330 of 2011 with a prayer to allow this petition deleting the name of the original appeal from the record of the case and substitute them in his place who are legal heir and sons of the complainant.

The parties were heard on the I.A. petition as well as on the appeal. Learned counsel for the appellant however contends that there is no provision that appeal shall abate on death of complainant. Section 256 and 302 Cr.P.C. provides that the Magistrate may permit any person to conduct the prosecution of case if complainant is dead or absent through the Pleader appearing in the case and has relied upon decision reported in Panchu Swain Vs. Emperor, as well as decision reported in Ashwin Nanubhai Vyas Vs. State of Maharashtra and Another, and decision reported in 2005 Cr. Law Journal page 599.

The learned counsel for the respondent however contends that the Appellate Court on due consideration of the material on record and have given a reason order. This Court may heard the appeal on merit for final disposal.

Section 256 Cr.P.C. provides that in complaint case "if after issuance of summons the complainant does not appear on an appointed date of appearance of accused, the Magistrate may acquit unless there is reason to adjourn the hearing to some other day but where the complainant is represented by a pleader or if the Magistrate is of opinion that personal attendance of complainant is not necessary he may dispense with his attendance and proceed with the case.

Section 302 Cr.P.C. however provides that Magistrate inquiring into or trying a case may permit the prosecution to be conducted by "any person" and the person may conduct the prosecution either by him or by appointing Pleader.

In the decision reported in AIR 1943 SC 379, it has been held that on the death of the complainant, the complaint case does not abate. The fact of the case reported in AIR 1943 Pat that the complainant died during pendency of the complaint case. The accused filed a petition that he may be discharged, the said petition was rejected with direction to proceed with the case and court inspect or to proceed with prosecution or cross-examination of the defence witness. A revision preferred against the order before Hon''ble High Court. The Hon''ble High Court held that there is nothing in the Cr.P.C. to warrant the abatement of criminal proceeding in Cr.P.C. on death of complainant.

In decision reported in Ashwin Nanubhai Vyas Vs. State of Maharashtra and Another, , it has been held that there is no provision in Cr.P.C. about acquittal or discharge of accused on failure of complainant to attend the court. The Magistrate should proceed with committal proceeding. The fact of the case that complainant died. The mother of the complainant applied for substitution in place of complainant to pursue the complaint. The said petition was opposed with prayer that death of complainant, the complaint be treated as abated. The Magistrate decided to proceed with complaint by the complainant mother and Revision before High Court rejected. The question arose before Apex Court was whether on death of Kusum the complainant, the proceeding come to an end or could be continued. It was held that the presiding Magistrate has allowed the mother to act as complainant to continue the prosecution. This power was undoubtedly possessed by Presiding Magistrate as 495 Cr.P.C. empowered to the conduct the prosecution by any person.

In decision reported in 2005 Cr.P.C. the question raised whether the order of substitute the O.P. who is son of the deceased complainant in complaint case for offence u/s 138 read with Section 142 of N.I. Act is sustainable. Taking notice of Section 256(2) which made a person for application of Section 256(1) in case of non-appearance of complainant on account of his death. It was held that in the light of Section 256 and 302 of Cr.P.C. there is no impediment to permit the son of the deceased complainant to represent the complainant to allow him pursue the case himself or to appoint a Pleader of his choice.

Hence Section 256 and 302 Cr.P.C., though, does not empower the Magistrate to substitute the heirs of the complainant in place of the complainant. But empowers to any person to pursue the complainant either by him or by appointing a lawyer. Hence in that view of the matter sons of the complainant may come under depute of any person to conduct the appeal and appoint a Pleader on his choice to represent. Since the learned counsel having been appointed by the son of the complainant is hereby ordered to proceed with appeal.

However coming to merit of the appeal the appeal has been preferred against the order or acquittal recorded by the Sessions Judge. However, the said appeal has been preferred against the order of conviction recorded by the Judicial Magistrate Ist Class in Complaint Case No. 136 C of 1991 Trial No. 268 of 1997 and in this said appeal complainant was not made a party and neither any notice was issued nor the complainant was heard and order was passed behind his back. Other party does not dispute this factual decision. However, Section 385 of Code of Criminal Procedure read as follows;

Procedure for hearing appeals not dismissed dismissed summarily.--- (1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to the given---

(i) to the appellant or his pleader;

(ii) to such officer as the State Government may appoint in this behalf; (iii) if the appeal is from a judgment of conviction in a case instituted upon complaint to the complainant;....

Hence Section 385(1)(iii) provides that if an appeal preferred against an order of conviction and the said appeal has not been dismissed summarily then notice of appeal is require to be given to the complainant. Notice has been given to or the parties are mandatory. Hence from the facts and circumstance of the complainant neither been even made a party not noticed nor was heard and hence order passed in appeal is behind his back of the complainant. Hence order passed by the learned court below is utter violation rule of natural justice in violation of the mandatory provision enshrine u/s 385(1) (iii) of Code of Criminal Procedure. This view has find support from the decision reported in 1985 PLJR 47 and Anwar Hussain Vs. State of Uttar Pradesh and Another, .

However having regard to the fact that the appeal before Court of Sessions disposed off without notice and hearing of the complainant and hence order passed by the Sessions Judge in appeal is without complying the mandatory provision and hence it is not proper to disposed off the appeal before this Court on merit and hence the matter is remanded back to the Sessions Judge.

Hence I find and hold that order of acquittal recorded by the Sessions Judge is not sustainable in the eye of law and is hereby set aside and the case is remanded back to the lower court for fresh hearing and dispose of in accordance with law.

The parties are hereby directed to appear before the lower court. Since the appeal is of the year 1998 and hence it is hereby ordered that lower court shall dispose of the matter after hearing the parties at the earliest preferably within six months from the date of receipt of this order.

Hence in the result, this appeal is allowed.