JUDGMENT : 1. This is an application in revision on behalf of the petitioner Mundrika Lal, who in an accused under Section 392 of the Indian Penal Code, which is pending trial in the court of a Judicial Magistrate at Nawadah. 2. One Mohammad Shafi filed a petition of complaint alleging, inter alia, that, on the 10th October, 1967, at about 8 a.m., he was passing via village Akri, police station Hisua, when the petitioner, with the help of two other persons, at the point of dagger, snatched Rs. 40/- from the upper pocket of the complainant and fled away giving a threat that, if he would raise hulla, they would kill him. After the petitioner and his other two companions fled away, the complainant raised hulla. On his hulla some persons came at the spot. On the basis of the said petition of complaint, the petitioner was put on trial for an offence under Section 392 of the Indian Penal Code in due course. 3. During the pendency of the trial, some witnesses were examined and cross-examined, and ultimately statement of the petitioner was recorded under Section 342 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'Code') on the 7th October, 1971. The learned Magistrate then fixed the 26th October, 1971 as the date for examination of defence witnesses, if any, and for arguments. From the 26th October, the case was adjourned to the 16th November, 1971, when a petition was filed by the lawyer for the complainant that the complainant was dead. Ultimately, the case was adjourned to the 17th January, 1972 when one defence witness was examined, and an objection was raised on behalf of the accused that the lawyer appearing for the complainant could not cross examine the defence witness because the complainant was dead. The learned Magistrate heard the petitioner on the question as to whether or not, after the death of the complainant, the lawyer who had been engaged by the complainant to conduct the prosecution could be allowed to conduct the case. By the impugned ORDER :, dated the 16th March, 1972, the learned Magistrate has overruled the objection raised on behalf of the petitioner and has held that the lawyer who had been engaged by the complainant had authority to conduct the prosecution on behalf of the complainant till the case ended. By the impugned ORDER :, dated the 16th March, 1972, the learned Magistrate has overruled the objection raised on behalf of the petitioner and has held that the lawyer who had been engaged by the complainant had authority to conduct the prosecution on behalf of the complainant till the case ended. The learned Magistrate has alternatively held that, in the interests of justice, a Court can permit any lawyer to assist the Court and that procedure will not be illegal. The petitioner, being aggrieved by the said ORDER :, has come up to this Court. 4. Mr. Bindeshwari Prasad Sinha learned counsel appearing for the petitioner, has urged that the ORDER :of the learned Magistrate is illegal and not sanctioned by any provision of the Code. In this connection he has submitted that, although there is no specific provision in the Code as to what will happen after the death of a complainant, yet on the general principle it has to be held, according to the submission of the learned counsel, that a lawyer who had been instructed to appear by a complainant will have no authority in law to appear on his behalf after his death. He has drawn my attention to ORDER :III, rule 4, of the Code of Civil Procedure in support of his contention that the appointment of a pleader has to remain in force until the client or the pleader dies. The relevant portion of ORDER :III, rule 4 of the Code of Civil Procedure reads as follows : 4. (1) No Pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power of attorney to make such appointment. (2) Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in court, or until the client or the Pleader dies, or until all proceedings in the suit are ended so far as regards the client. 5. 5. No doubt, in the Code of Civil Procedure there is a specific provision regarding appointment and continuance of a pleader appointed by a party to the case. Sub-rule (1) of Rule 4 of ORDER :III is in imperative language that no pleader shall act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent. Sub-rule (2) prescribes the period and contingency till when such appointment has to remain in force, and one of the contingencies when the said appointment is to terminate is the death of the client. Now, the question is as to whethel1 in absence of any specific provision in the Code of Criminal Procedure this provision in the Code of Civil Procedure will be attracted in a case of death of a complainant in a criminal case. 6. Indeed, there is no specific provision in the Code as to what will happen after the death of a complainant it only makes provision regarding abatement of appeals by the death of the accused under Section 431 of the Code. There are two provisions concerning the absence of the complainant on the date fixed in the case. In the trial of summons cases there is Section 247 which prescribes as to what will happen if the complainant does not appear on the day appointed for the appearance of the accused or on any day subsequent thereto to which the hearing may be adjourned and it authorises the Court to acquit the accused, unless for some reason it thinks proper to adjourn the hearing of the case to some other day. Under the proviso to Section 247. if the Magistrate is of opinion that the personal attendance of the complainant is not necessary, he may dispense with his attendance, and proceed with the case. The other relevant provision regarding absence of the complainant is Section 259 of the Code which reads as follows" 259. Under the proviso to Section 247. if the Magistrate is of opinion that the personal attendance of the complainant is not necessary, he may dispense with his attendance, and proceed with the case. The other relevant provision regarding absence of the complainant is Section 259 of the Code which reads as follows" 259. 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 occurs in Chapter XXI relating to trial of warrant cases by Magistrates. The power under this section can be exercised only when the offence is either compoundable or is not cognizable, and that also before the charge has been framed. Thus, from the scheme of the Code it is obvious that by mere absence of the complainant, for whatever reason it may be the prosecution in all types of cases has not to come to an end. The trial court has neither to discharge the accused nor to acquit him, merely on the ground of the absence of complainant rather, from the scheme of the Code it is apparent that only under specific conditions the Magistrate is entitled to discharge or acquit an accused due to the absence of the complainant. Mr. Sinha, however, contended that Sections 247 and 259 of the Code are not of much help in a case where the complainant is dead. According to learned counsel, those sections provide for contingencies when the complainant is alive, but is not present in Court, but different considerations will arise when the complainant is dead, because in that case the lawyer appearing for the complainant has no authority to appear and to conduct the prosecution on behalf of the deceased complainant. In my opinion the provisions of the Code of Criminal Procedure are entirely different from the provisions of the Code of Civil Procedure, and any trial has to be conducted in accordance with the provisions of the Code. Merely because there is no specific provision in the Code, the procedure prescribed in the Code of Civil Procedure cannot be imported. In my opinion the provisions of the Code of Criminal Procedure are entirely different from the provisions of the Code of Civil Procedure, and any trial has to be conducted in accordance with the provisions of the Code. Merely because there is no specific provision in the Code, the procedure prescribed in the Code of Civil Procedure cannot be imported. In my JUDGMENT :, there is no substance in the submission of the learned counsel for the petitioner on this account. 7. Learned counsel then submitted that the power to conduct the prosecution on behalf of the complainant in the present case has also ceased in view of the provisions of the Section 201 of the Contract Act. Section 201 reads thus" 201. An agency is terminated by the principle revoking his authority or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors." According to learned counsel for the petitioner, a lawyer who is engaged to appear in a case on behalf of a party is an agent of the party concerned, and, as such, that agency which is created between the client and his lawyer terminates by the death of either the principal or the agent, as provided by Section 201. Mr. Sinha contended that the complainant in the instant case would be deemed to be the principal and after his death the agency has terminated and the lawyer engaged by him earlier could not appear on his behalf after his death. In my opinion, the position of a lawyer while appearing in a case is not just that of an agent, as envisaged by the Contract Act. A lawyer appearing on behalf of a client owes certain duties to the Court also. In my opinion, the position of a lawyer while appearing in a case is not just that of an agent, as envisaged by the Contract Act. A lawyer appearing on behalf of a client owes certain duties to the Court also. In this connection reference may be made to Section 495 (1) of the Code which reads thus- “495 (1) Any Magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person other than an officer of police below a rank to be prescribed by the State Government in this behalf, but no person, other than the Advocate General, Standing Counsel, Government Solicitor, Public Prosecutor or other officer generally or specially empowered by the State Government in this behalf, shall be entitled to do so without such permission." This is a specific provision in the Code under which a Magistrate, while inquiring into or trying any case, may permit the prosecution to be conducted by "any person". A bare reference to this section shows that it vests wide discretion in the Court and in the interests of justice it will be open to any Court to permit any person to assist the Court in conducting the case on behalf of the prosecution. In (1) Ashwin Nanubhai Vyas v. The State of Maharashtra (A.I.R. 1967 Supreme Court 983) their Lordships had to consider Section 495 of the Code. In that case the complainant, after filing the complaint and during the pendency of the trial, died. Thereafter, the mother of the complainant applied to the Court to be substituted in place of her deceased son and sought permission to conduct the prosecution. The said application was resisted by the accused in that case and it was contended that only the aggrieved person could be the complainant the mother of the complainant was not the aggrieved person and as such it might be treated that after the death of the complainant the complaint had abated. The Magistrate rejected the objection and allowed the mother of the complainant to conduct the prosecution. Their Lordships observed that the Code provides only for the death of an accused or an appellant, but-does not expressly provide for the death of a complainant. The Magistrate rejected the objection and allowed the mother of the complainant to conduct the prosecution. Their Lordships observed that the Code provides only for the death of an accused or an appellant, but-does not expressly provide for the death of a complainant. In this connection it was observed: "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." Their Lordships ultimately held :- "(7) Mr. Keswani contends that the Presidency Magistrate had made a 'substitution' of a new complainant and there is nothing in the Code which warrants the substitution of one complainant for another. It is true that the Presidency Magistrate has used the word 'substitute but that is not the effect of the ORDER :. 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 ‘and person’ would undoubtedly include the mother of the complainant in a case such as this.” In this aforesaid case it was also observed that, unless the Code itself says what is to happen, the power of the Court to substitute another prosecution agency (subject to such restrictions as may be found under Section 495 of the Code) is always available. In my opinion, the aforesaid JUDGMENT : of the Supreme Court is helpful to this extent that under Section 495 of the Code the Court, in exercise of its judicial discretion can allow 'any person' to conduct the prosecution after the death of the complainant. In that view of the matter, it cannot be urged that, if the Court is of opinion that it requires the assistance of a lawyer, who had been originally engaged by the complainant, it cannot permit that person to continue to conduct the prosecution after the death of the complainant. 8. Learned counsel for the petitioner has also urged that no prayer had been made in this case on behalf of any of the heirs of the deceased complainant to be added as a party to the trial. 8. Learned counsel for the petitioner has also urged that no prayer had been made in this case on behalf of any of the heirs of the deceased complainant to be added as a party to the trial. In my opinion, in view of the aforesaid authority of the Supreme Court, it was open to any of the heirs of the deceased complainant in the instant case to move the learned Magistrate to be allowed to conduct the prosecution after the death of the complainant, But, even if no such prayer has been made before the Court, it was open to the learned Magistrate to exercise his judicial discretion in accordance with the provisions of Section 495 of the Code and, in my opinion, although the learned Magistrate had not mentioned the said section, he has granted the permission to the lawyer concerned to conduct the prosecution and has rejected the prayer of the petitioner on two grounds, firstly, that he was of the view that the appointment of a lawyer in a criminal case continues till the conclusion of the trial and, secondly that, in the interests of justice, he might direct any lawyer to assist him. In my opinion, the impugned ORDER :will be deemed to be an ORDER :under Section 495 of the Code and the learned Magistrate was perfectly justified in taw in passing this ORDER :. 9. In the result, there is no merit in this application. It is, accordingly, dismissed. Application dismissed.