Panchu Swain vs Emperor

Chatterji, J.—This application arises out of a case u/s 323, Penal Code, which was started on the complaint of Krupasindhu Jena. After the prosecution witnesses were examined and cross-examined, a charge u/s 323 was framed against the accused for causing hurt to three persons namely, Krupasindhu Jena the complainant, P.W. 1, Pagu Jena P.W. 3 and Bhagu Samal P.W. 5. The accused summoned some defence witnesses, but as they did not turn up in spite of adjournments, the Magistrate proceeded to deliver judgment and he convicted the accused. Against the conviction the accused preferred an appeal to the Sessions Judge which was dismissed. He then came up in revision to this Court, and Agarwala J. by his order dated 18th August 1941 set aside the conviction and sentence and remanded the case to the trying Magistrate to be tried by him securing the attendance of the witnesses whom the accused wished to examine. The case then went back to the Magistrate.

While the case was pending before him, the complainant died. On his death the accused filed a petition praying that he may be discharged. This petition was rejected by the Magistrate on 29th January 1942 and he directed that the case should proceed and the Court Inspector would cross-examine the defence witnesses. Against this order the accused moved the District Magistrate but without any success. He has now filed this present application in revision asking that the order of the Magistrate dated 29th January 1942 be set aside.

Mr. Subba Rao on behalf of the petitioner argues that as the case being one u/s 323, Penal Code, was compoundable, the proceedings abated on the death of the complainant and the Magistrate was bound to discharge the accused. In support of this contention he relies on the decisions of the Punjab Chief Court in Rama Nand v. Emperor AIR 1917 Lah. 403 and Labhu v. Emperor AIR 1919 Lah. 409 and also on the decision of the Madras High Court in Gulam Mohideen v. Ahamadulla Begam AIR 1923 Mad. 206.

In all these cases the learned Judges took the view that prosecution for offences such as hurt or defamation is an action personal to the complainant and therefore on his death the prosecution abates. With all respect to the learned Judges, I am unable to agree with this view. There is nothing in the Criminal Procedure Code to warrant the view that there is abatement of a criminal proceeding on the death of the complainant. Section 247, which refers to a summons case, provides:

If the summons has been issued on complaint, and upon 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 proper to adjourn the hearing of the case to some other day.

This provision itself suggests that even though in a summons case the complainant may be absent on the date fixed for hearing, the Court may, if it thinks proper, instead of acquitting the accused, adjourn the case to some other day; in other words, he may proceed with the case despite the absence of the complainant. No doubt the Section con-templates absence of the complainant and not his death, but the principle is the same in both cases. The corresponding provision with regard to a warrant case is to be found in Section 259 which runs as follows:

When the proceedings have been instituted upon complaint, and upon any day fixed for the 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.

This Section makes it perfectly clear that even in a case instituted upon complaint where charge has been framed, the Magistrate has no option but to proceed with the case although the complainant may not appear on the date fixed for hearing. It is to be observed that in this particular case the charge was in respect of hurt caused not only to the complainant but to two other persons who are prosecution witnesses and who are still alive. According to the direction of this Court, the Magistrate proceeded with the case at the stage when he had in the first instance failed to secure the attendance of the defence witnesses. The charge had already been framed and the Magistrate was to proceed upon the charge as framed. It was a warrant case and the Magistrate was perfectly justified by the terms of Section 259, Criminal P.C., in proceeding with the ease. Though a case may be started on the complaint of any particular individual, and though that case may be compoundable.

It is erroneous to compare the case to a civil action where the cause of action is personal to the plaintiff. The cause of action for a civil suit bears no analogy to an offence; once a criminal case is started, be it upon a complaint, or not, the proceedings must be carried on according to the provision of the Criminal Procedure Code. I fail to understand how a criminal case can abate by reason of the death of a complainant. This view is supported by the decisions in Hazara Singh v. Emperor AIR 1922 Lah. 227, Md. Ibrahim Sahib v. Shaik Davood AIR 1921 Mad. 278, Musa v. Emperor AIR 1924 All. 666 and Mahomed Azam Vs. Emperor, . Though the facts of these cases may not be exactly similar to those of the present, they undoubtedly lay down the principle that in a criminal case there can be no abatement by reason of the death of the complainant.

I must accordingly dismiss the application.