Judgment :- 1. The simple question that falls to be decided in this Criminal Revision Petition is whether a private complaint instituted for an offence under S.500 IPC. can be prosecuted by the brother of the complainant even after his death. 2. The late Mathai Manjooran, who was the Labour Minister, Government of Kerala, instituted the complaint on 22 31968 for an offence under S.500 IPC. against the 1st accused (the petitioner herein), the President of the Indian National Trade Union Congress and the 2nd accused, the Printer and Publisher of a Malayalam daily newspaper 'Mathrubhumi', which is published simultaneously at Kozhikode and Ernakulam. Minister Manjooran assumed office as Labour Minister on 6 31967 when the United Front which consisted of 7 political parties formed the Government in Kerala, Minister Manjooran represented the Kerala Socialist Party in the United Front and of which he was the founder member as well as the leader. The Marxist Communist Party was another constituent member of the United Front which formed the Government. The United Front parties came into power defeating the Indian National Congress Party. The Indian National Trade Union Congress (I.N.T.U.C.) of which the 1st accused is the President owed allegiance to the Indian National Congress. The subject-matter of the imputation against the Minister was a speech purported to have been made by the 1st accused on 1-12-1968 at Trichur and the said speech was published by the 2nd accused in the Mathrubhumi dated 12 21968. The objectionable part of the speech is as follows: "The Labour Minister is a salaried employee of the Marxist Communist Party, which is one of the constituents of the United Front Government. Anarchy has been let loose in the labour sector of the State by the United Front Government." 3. The Minister stated that on account of the above imputation by the first accused and its publication by the 2nd accused his reputation was lowered in the estimate of the public. In pursuance of the complaint, the Minister as PW.1 and 6 other witnesses as PWs. 2 to 7 were examined, cross-examined and re-examined, in the lower court. After the above examination, the lower court framed charges against the accused 1 and 2 on 8 71969 under S.500 IPC. and the case was posted for further cross-examination of the prosecution witnesses. In pursuance of the complaint, the Minister as PW.1 and 6 other witnesses as PWs. 2 to 7 were examined, cross-examined and re-examined, in the lower court. After the above examination, the lower court framed charges against the accused 1 and 2 on 8 71969 under S.500 IPC. and the case was posted for further cross-examination of the prosecution witnesses. While so, the Minister Mathai Manjooran died on 1511970- On 2211970 the Minister's younger brother, John Manjooran presented a petition before the lower court to permit him to prosecute the above complaint against the accused 1 and 2. The lower court by its order dated 9 31970 allowed that petition. It is against the order that the 1st accused alone has preferred this criminal revision petition. 4. S.198 Cr. PC. provides the cases in which a complaint is to be filed by some person aggrieved of the offence. S.198 Cr. PC. is quoted below: "No court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Indian Penal Code. 45 of 1860, or under Ss, 493 to 496 (both inclusive) of the same Code. except upon a complaint made by some person aggrieved by such offence: Provided that, where the person so aggrieved is a woman who. according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his or her behalf: Provided further that where the person aggrieved by an offence under S.494 of the said Code (a) is the wife, any relative of the wife may make a complaint on her behalf; (b) is the husband, and be is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (1) of S.199-B may. with the leave of the court, make a complaint on his behalf. with the leave of the court, make a complaint on his behalf. Explanation: For the purpose of clause (a) of the second proviso, "relative" means any lineal descendant or accendant of the wife, her brother or sister, or her father's brother or sister." 5. S.500 IPC. being one of the sections contained in S.198 Cr. PC. a complaint can be made by some person aggrieved of such offence. The argument of the learned counsel of the revision petitioner is that as a result of the death of the complainant, the prosecution is abated and no one else is competent to prosecute the complaint. That argument is based upon the combined effect of S.247 Cr. PC., 259 Cr. PC. and 345 (1) Cr. PC. S.247 and 259 would apply only if the complainant died during the proceedings and was, therefore, necessarily absent upon the day fixed for the hearing of the case. S.247 Cr. PC. applies to the procedure in a summons case, while S.259 Cr. PC. applies to the procedure in a warrant case. S.247 will naturally apply to such a case where the complainant is alive, but does not appear, while under S.259 Cr. PC. the Magistrate "may" and not "shall" discharge the accused. In Mahomed Azam v. Emperor (AIR. 1926 Bombay 178) the effect of S.247 and 259 is stated as follows: "It is open to doubt whether S.247of the Code was intended to apply to such a case as this. It seems to apply primarily to the case of a complainant who is alive but does not appear. Under S.259, which is perhaps the only other relevant section the Magistrate "may", not "shall", discharge the accused. We are of opinion, therefore that in the present case of a non-cognizable offence instituted upon a complaint, the axiom of actio personalis moritur cum persona, in civil law confined to torts, does not apply and that the trying Magistrate has discretion in proper cases to allow the complaint to continue by a proper and fit complainant, if the latter is willing." 6. On the same grounds, it was held in Hazara Singh and another v. Emperor (AIR. 1922 Lahore 227) that these sections will not apply to cases where the complainant died pending the proceedings, when we consider 'the right of a person aggrieved of the offence to institute or to continue the prosecution of the specified offence. On the same grounds, it was held in Hazara Singh and another v. Emperor (AIR. 1922 Lahore 227) that these sections will not apply to cases where the complainant died pending the proceedings, when we consider 'the right of a person aggrieved of the offence to institute or to continue the prosecution of the specified offence. However, the learned counsel has relied upon a decision reported in Ishar Das v. Emperor (The Criminal Law Journal, Vol. VII, 1908 page 290) which states that the death of the complainant during the course of criminal proceedings for defamation necessarily terminates those proceedings. But, this decision has been dissented from in the above reported case in AIR. 1922 Lahore 227. The Supreme Court in Ashwin Nanubhai Vyas v. State of Maharashtra (AIR. 1967 Supreme Court 983) did not rely upon it as it was over-ruled by the Lahore High Court in the above decision. But, the Supreme Court pointed out that it is permissible to substitute a fit and proper person in the place of the deceased complainant to maintain the prosecution if the complainant died pending the complaint. In that case, one Kusum prosecuted her husband under S.417,493 and 496 of the Indian Penal Code. S.493 and 496 occur in S.198 Cr. PC. In that case, the complaint should have been filed by the person who was aggrieved of the offence. But, the aforesaid Kusum died pending the prosecution and her mother was substituted in her place to prosecute the case. When that matter came up before the Supreme Court in the above case, the following observation was made basing the reason under S.495 Cr. PC. which authorises the conduct of the prosecution by any person. The relevant passage is as follows: "What the Presidency Magistrate has done is to allow the mother to act as the complainant to continue the prosecution. This power was undoubtedly possessed by the Presidency Magistrate because of S.495 of the Code by which Courts are empowered (with some exceptions) to authorise the conduct of prosecution by any person. The words' any person' would undubitably include the mother of the complainant in a case such as this. This power was undoubtedly possessed by the Presidency Magistrate because of S.495 of the Code by which Courts are empowered (with some exceptions) to authorise the conduct of prosecution by any person. The words' any person' would undubitably include the mother of the complainant in a case such as this. S.198 itself contemplates that a complaint may be made by a person other than the person aggrieved and there seems to us no valid reason why in such a serious case we should hold that the death of the complainant puts an end to the prosecution," 7. It is, therefore, clear from the above that it is within the power of the trial Magistrate to permit the continuance of the prosecution launched by the complainant if he died pending the prosecution. Apart from that, there is yet another decision of the Calcutta High Court reported in Mrs. Pat Sharps v. Dwijendra Nath Bose (1964 (1) Crl. Q. 367) to establish that even a complaint could be filed by a person other than the person defamed. The relevant passage from the judgment of Niyogi J. is as follows: "It cannot be laid down as an inflexible rule that the expression "some person aggrieved" in S.198, Criminal P. C. will only be limited to the person actually defamed or affected. The section does not say that complaint can only be made by the person aggrieved' The expression "some person aggrieved" was not intended to be restricted to the person actually defamed. It must be determined in each case according to its own circumstances whether the complainant could be said to be in a legal sense a person'aggrieved' within the meaning of S.198. Cr. P. C. Where the person defamed is an adult and a male and is not incapacitated by physical infirmities or otherwise incapable of attending the Court, no other person should be held to be competent to make a complaint under S.500. Cr. P. C. Where the person defamed is an adult and a male and is not incapacitated by physical infirmities or otherwise incapable of attending the Court, no other person should be held to be competent to make a complaint under S.500. But where the whereabouts of the person defamed are not known or he has not been heard of for a long time or is not readily available to make a complaint in respect of the offence, and the complainant, as in this case is his near relation, (Elder brother's son) who lived in the same family and in joint mess with him, suffered incarceration for a number of years in the cause held dear by the person defamed and the alleged defamatory article challenges and castigates his life's work, he should be held to be a person aggrieved within the meaning of S.198 and competent to make complaint in respect of the offence." In the same case, Dutt, J. observes as follows: "So far as an offence of defamation is concerned the complaint may be made not only by the persons defamed but by some person aggrieved by such defamation. The words "person aggrieved" do not always mean "person defamed". The words "person aggrieved* have a wider connotation than the words'person defamed' and the addition of the word "some" before the words "person aggrieved" supports this wider connotation. Where the person defamed was Netaji Subhash Chandra Bose, it was held that his nephew was "a person aggrieved' within the meaning of S.198 of the Code of Criminal Procedure and as such even though it be assumed that Netaji was alive at the time of the publication of the article in question, the complaint made by the nephew was competent and the cognizance taken by the Magistrate on the basis of this complaint was legal." 8. So, it cannot be said as an inflexible rule that the expression 'some person aggrieved' will only be limited to the person actually defamed or affected. The section does not say that a complaint can only be made by the person defamed. What is required is that the complaint must be made by some person aggrieved. In that way 'some person aggrieved' was not intended to be restricted to the person actually defamed. The section does not say that a complaint can only be made by the person defamed. What is required is that the complaint must be made by some person aggrieved. In that way 'some person aggrieved' was not intended to be restricted to the person actually defamed. It may be relevant in this regard to point out that in the above Calcutta decision, the impugned article was published against the late Subhash Chandra Bose describing him as a traitor and quisling. For more than 7 years the whereabouts of Subhash Chandra Bose were not known before the institution of the complaint. The Calcutta High Court presumed that Subhash Chandra Bose was dead as he had not been heard of for much more than 7 years by those who would naturally have heard of him had he been alive. So, basing upon the presumption under S.108 of the Evidence Act, it was held that he was dead. In that contingency the learned Joges of the Calcutta High Court held that Subhash Chandra Bose's brother's son was competent to file a complaint under S.500 IPC. against the author and publisher of the impugned article in the circumstances of that case. In that regard, the relationship of the complainant who was substituted in the place of Subhash Chandra Bose was taken into account along with the circumstance that the imputation against him caused indignation, uneasiness and pain not only among his relatives or Subhash Chandra Bose's friends and admirers, but also amongst the citizens of Calcutta. 9. In the light of the above circumstances, it can be said that the imputation against the late Mathai Manjooran would have caused indignation, uneasiness and pain not only among his relatives, friends and admirers, but also among certain section of the public who held the Minister in high esteem as the head and founder member of Kerala Socialist Parly which represented in the erstwhile United Front Government. The 1st respondent John Manjooran is alleged to be the Secretary of the Kerala Socialist Party. In view of these circumstances, I am of the opinion that the younger brother of the Minister is found to be a fit and proper person to prosecute the complaint. 10. In U Tin Maung and another v. The King (AIR. 1941 Rangoon 202), it is pointed out that S.198 Cr. In view of these circumstances, I am of the opinion that the younger brother of the Minister is found to be a fit and proper person to prosecute the complaint. 10. In U Tin Maung and another v. The King (AIR. 1941 Rangoon 202), it is pointed out that S.198 Cr. P. C. only limits the power of the court to initiate cognizance of the offence. Once the court has seisin of the case, there is nothing to prevent the court from proceeding with it. It should be noted here that it may, under certain circumstances, amount to defamation to impute anything to a deceased person, (See Explanation to S.499 IPC.). It was assumed that there it was found desirable that an offence should abate on the death of the complainant as the complainant had the right to compound the offence under S.345 (1) Cr. P. C. This appears to be unwarranted because when a person makes a complaint, the presumption is that he desires that the person complained against should be punished for the offence which the complainant alleges that he has committed. In this regard, I may say that it is a mistake to speak of an offence as a purely personal one. In Vol. 9 of Halsbury's Laws of England at p. 232 a crime is said to be "an unlawful act or default which is an offence against the public, and renders the person guilty of the act or default liable to legal punishment". The conclusion made in AIR. 1941 Rangoon 202 on this aspect may be read as follows: "While a crime is often also an inquiry to a private person who has a remedy in a civil action, it is an act or default contrary to the order, peace and well being of society, that a crime is punishable by the State. The learned judge might perhaps have quoted a well-known decision, (1884) 12 Q. B. D. 320 at p. 322. where (1791) 4 T. R.126 is cited and it is further said that the whole criminality of libels on private persons, as distinguished from the civil liability of those who publish them is in their tendency to disturb the public peace. In the present case the defamation alleged is against the complainant in his public capacity." 11. where (1791) 4 T. R.126 is cited and it is further said that the whole criminality of libels on private persons, as distinguished from the civil liability of those who publish them is in their tendency to disturb the public peace. In the present case the defamation alleged is against the complainant in his public capacity." 11. I may also add another decision reported in Nathu Jeorakhan v. Sheo pal Kuppa and others (AIR. 1963 Madhya Pradesh 47) which states that S.198 only limits the power of the court to initial cognizance of the offence but once the court has seisin of the case, there is nothing to prevent it from proceeding with the offence. Once the proceedings have been allowed to be instituted by the court, the condition of the real aggrieved person being alive till the decision of the trial has not been imposed for continuing the trial. 12. In a later Mysore case reported in Subbamma and another v. Kannappachari (AIR. 1969 Mysore 221) it is held that the death of the complainant in the case of non-cognizable offence does not abate the prosecution and it is within the discretion of the trial Magistrate to allow the complaint to be continued by a proper and fit complainant if the latter is willing. In the case on hand the complainant's brother has come forward with a petition to permit him to prosecute the case. He did not state that he should be impleaded as a complainant or a party to the prosecution. The only prayer in the petition is to afford him opportunity to continue the prosecution, That would not, in any way, affect or prejudice the revision petitioner. 13. Having regard to the fact that there is no specific provision to the effect that on the death of the complainant the complaint abates, it seems to me that the uniform view held in AIR. 1926 Bombay 78 and other decisions referred to above should be accepted as it is supported by sound reasons, if I may say so, with great respect. On a consideration of these decisions, I am of the opinion that the court below was correct in permitting the complainant's brother John Manjooran to prosecute the case against the revision petitioner and the 2nd accused. There is no ground, therefore, to interfere with the order passed by the court below. 14. On a consideration of these decisions, I am of the opinion that the court below was correct in permitting the complainant's brother John Manjooran to prosecute the case against the revision petitioner and the 2nd accused. There is no ground, therefore, to interfere with the order passed by the court below. 14. In the result, the revision petition is dismissed.