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1978 DIGILAW 363 (MAD)

A. S. Nayagam v. M. Shiva Kumar

1978-06-07

M.S.NESARGI

body1978
Order.- This petition, filed under section 482 of the Code of Criminal Procedure, is directed against the order dated 5th August, 1977, passed by the Metropolitan Magistrate (VI Court), Bangalore, allowing the respondent M. Shiva Kumar son of the late Mariyappa, to prosecute Criminal Case No. 436 of 1977 instituted by Mariyappa-the father of Mariyappa dying on 24th April, 1977. 2. The records of the case disclose that Mariyappa filed a complaint before the Magistrate alleging offences under sections 447, 440 and 379 of the Indian Penal Code. The complaint enumerated the list of documents and the names of three witnesses. The Magistrate took cognizance of the offences under sections 447 and 379, Indian Penal Code, recorded the statements of Mariyappa and his witnesses on oath and issued summons to the petitioner. The petitioner appeared before the Magistrate on 1st July, 1976 and then the case was adjourned to 10th September, 1976 for enquiry. Thereafter, the case was adjourned from time to time on the ground that no witnesses had been kept present. The complainant Mariyappa died on 24th April, 1977. His son, Shiva Kumar, the respondent, filed an application praying that he may be permitted to prosecute the case). The Magistrate has, by the impugned order, permitted him to prosecute the case and in support of his conclusion he has placed reliance on the decision of this Court in Krishnaji v. Bhimaji1. 3. The decision in Krishnaji’s case1, is rendered on interpreting section 256 of the Code of Criminal Procedure. In the said decision, reliance has been placed on the decision in Ashwin Nanubhai Vyas v. The State of Maharashtra and another2. 4. A perusal of the impugned order leaves an impression that the Magistrate appears to have had in his mind the provisions of section 256 of the Code of Criminal Procedure. But the facts narrated in the preceding paragraph and the procedure adopted by the Magistrate particularly after the petitioner appeared before the Magistrate on service of summons leaves no doubt in my mind that the Magistrate had adopted the procedure for the rial of warrant cases instituted otherwise than on police report. Therefore, section 256 of the Code of Criminal Procedure would have application. Moreover, the offence under section 379, Indian Penal Code, is not compoundable in view of the complaint that the property stolen was an iron gate costing Rs. 380. Therefore, section 256 of the Code of Criminal Procedure would have application. Moreover, the offence under section 379, Indian Penal Code, is not compoundable in view of the complaint that the property stolen was an iron gate costing Rs. 380. Such an offence is compoundable only if the value of the property stolen does not exceed Rs. 250. 5. In Ashwin Nanubhai Vyas’s case2, the Supreme Court has observed as follows: "The Code of Criminal Procedure provides only for the death of an accused or an appellant but does not expressly provide for the death of a complainant. The Code also does not provide for the abatement of inquiries and trials although it provides for the abatement of appeals on the death of the accused in appeals under sections 411-A (2) and 417 and on the death of an appellant in all appeals except an appeal from a sentence of fine. 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". The aforementioned principle has been laid down by the Supreme Court after considering the provisions of the Code of Criminal Procedure, 1898. In the present Code, section 256(2) found in the procedure prescribed for trial of summons cases, lays down that the provisions of sub-section (1) of section 256 shall so far as may be applied also to a case where the non-appearance of the complainant is due to his death. In the principle laid down by the Supreme Court in the aforementioned decision this factor does not make any perceptible difference in its application . 6. It has been already pointed out that the case on hand is not covered by section 256 of the Code of Criminal Procedure. At the most section 249 of the Code of Criminal Procedure may become applicable. It reads as follows: "249. When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence maybe 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". When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence maybe 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". Section 249 of the Code does not contain a provision analogous to or similar to the provisions in sub-section (2) of section 256 of the Code and that leads to the conclusive inference that while dealing with section 249 of the Code it is seen that the absence of the complainant is due to his death, then it does not amount to an absence as contemplated in section 256 of the Code of Criminal Procedure. I am reiterating that this distinction was not available under the Criminal Procedure Code, 1898. This also has to be borne in mind while understanding the principle laid down by the Supreme Court in Ashwin Nanubhai Vyas’s case1. That principle is, in my opinion, strengthened to a great extent in view of the aforementioned distinction between the provisions in the Criminal Procedure Code, 1898 and in the present Code. 7. In Subbamma and another v. V. Kannappachari2, it has been held that the death of the complainant in a case of non-cognizable offence does not abate the prosecution and it is within the discretion of the trying Magistrate in a proper case to allow the complaint to continue by a proper and fit complainant if the latter is willing. The decision in Mohamed Azam v. Emperor3, was followed by this Court. 8. Section 249 of the Code of Criminal Procedure operates at a stage before the charge is framed. By that time some witnesses might have been examined or no witnesses might have been examined, but might have been summoned and present in the Court when the Court finds that by that date the complainant has died. Even if the facts and circumstances, in a given case falls squarely within the ambit of section 249 of the Code of Criminal Procedure, it has to be borne in mind that the Magistrate has to exercise his judicial discretion whether he should pass an order of discharge on the ground of absence of the complainant. Even if the facts and circumstances, in a given case falls squarely within the ambit of section 249 of the Code of Criminal Procedure, it has to be borne in mind that the Magistrate has to exercise his judicial discretion whether he should pass an order of discharge on the ground of absence of the complainant. I have already pointed out that in view of the distinction between sections 249 and 256 of the Code of Criminal Procedure in regard to death of the complainant being considered as absence of the complainant in a case where section 249 of the Code comes into play the death of the complainant may not amount to absence of the complainant. But, even if it is for the sake of argument assumed that it amounts to absence of a complainant, then in such circumstances if the Magistrate discharges the accused, it would certainly not amount to exercise of judicial discretion, because such an order would not advance or cause injustice but would cause miscarriage of justice. 9. The aforementioned reasoning receives considerable support from the fact that there is no specific provision in the Code of Criminal Procedure to the effect that on the death of a complainant, the complaint abates. Hence, I respectfully agree with the view expressed in Subbamma’s case2. 10.Subbamma’s case2, was dealt with by this Court in exercise of its revisional jurisdiction, even then the Court did not find it a good ground to interfere on the aforementioned principle. Then the ground cannot in any way be considered while this Court exercises its power under section 482 of the Code of Criminal Procedure. 11. In the result, this petition fails and is dismissed.