JUDGMENT 1. - The following questions of law required consideration in the present petition which has been filed under Section 482 Cr. P.C. : (i) What is the effect of death of the complainant in a summons-case. (ii) Whether an order of acquittal passed under section 256(1) Code of Criminal Procedure can be challenged in a petition filed under Section 482 Cr. P.C.? 2. The circumstances under which these questions have arisen for consideration may be narrated. 3. One Ram Chandra filed a complaint against accused non-petitioners in the court of Additional Chief Judicial Magistrate, Deeg with the allegations that they (accused petitioners) entered in his plot at 10.00 P.M. on July 20, 1985 and took away woods and stones valuing Rs. 1100/- in all. This complaint was filed on July 31, 1985. 4. After taking cognizance on the complaint, the learned Magistrate recorded the statement of the complainant Ram Chandra and other witnesses under sections 200 and 202 Cr. P.C. and thereafter vide order dated 12-9-1985 issued process against all 12 accused non-petitioners for the offence under sections 147, 447 and 427 I.P.C. On the next date, all the accused persons appeared in the above court of the Magistrate. Thereafter, substance of accusation was stated to the accused persons by the learned Magistrate on 17/1/1986. The accused persons pleaded not guilty. 5. From the order-sheets of the trial court, it appears that the case was fixed for recording the prosecution evidence on several dates, but the statement of even a single witness was not recorded as no witness appeared in the court and Presiding Officer was also transferred and no other Presiding Officer was posted in the said court. Then, the case was transferred to the court of Additional Chief Judicial Magistrate, Bharatpur. The Additional Chief Judicial Magistrate fixed the case for recording the prosecution evidence on 29/9/1988. It appears that on account of the strike of the employees, the case file was not placed before the Magistrate on 29/9/1988. The case was listed before the court on 15-11-1988. On this date, the petitioner Jagdeesh, who is son of the complainant Ram Chandra moved an application in the trial court that his father Ram Chandra had died on Oct. 2, 1988, as such, he should be permitted to prosecute the case in his place. This application was opposed by the accused persons. On this date, the petitioner Jagdeesh, who is son of the complainant Ram Chandra moved an application in the trial court that his father Ram Chandra had died on Oct. 2, 1988, as such, he should be permitted to prosecute the case in his place. This application was opposed by the accused persons. The learned Magistrate vide impugned order dated April 14,1989 rejected the application filed by the petitioner Jagdeesh and acquitted all the accused persons under section 256(1)Criminal Procedure Code. 6. Being aggrieved against the aforesaid order, the petitioner has filed this petition under Section 482 Criminal Procedure Code. 7. The contention of the learned counsel for the petitioner is that in case of death of the complainant, it is not obligatory for the Magistrate to acquit the accused persons under section 256 (1) Cr. P.C. He further argued that all the accused persons entered in the plot of the complainant and removed stones and wood valuing Rs. 1100/-, as such, the offences committed by them are against the property. The learned counsel also referred to 41st Report of the Law Commission to substantiate his arguments that it is not obligatory for the court to acquit the accused on the death of the complainant in all cases. 8. On the other hand, the learned Public Prosecutor and the counsel for the accused persons vehemently argued that in case of death of the complainant in the trial of a summons-case, the Magistrate has no option but to acquit the accused under section 256(1) Cr. P.C. They further contended that the present petition under Section 482 Cr. P.C. is not maintainable, in as much as, the order of the learned Magistrate acquitting the accused under section 256(1) Cr. P.C. is appealable. 9. I have given my thoughtful consideration to the above contentions of the learned counsel for the parties. P.C. They further contended that the present petition under Section 482 Cr. P.C. is not maintainable, in as much as, the order of the learned Magistrate acquitting the accused under section 256(1) Cr. P.C. is appealable. 9. I have given my thoughtful consideration to the above contentions of the learned counsel for the parties. In the code of Criminal Procedure, the word 'complaint' (sic complainant) is not defined, but the 'complaint' has been defined under section 2(d) of the Code as under : "complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report; Explanation - A report made by a police officer in a case which disclosed, after investigation, the commission of a non-congnizable offence shall be deemed to be a complaint; and police officer by whom such report is made shall be deemed to be the complainant." 10. Summons-case has been defined under section 2(w) of the Code as under : "summons-case' means a case relating to an offence, and being a war- rant-case" 11. Similarly, warrant-case has been defined under section 2(x) of the Code as under : "warrant-case' means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years;" 12. Section 200 of the code provides Examination of the Complainant by the Magistrate taking cognizance of an offence on the complaint. 13. From the above provisions, it is clear that the word 'complainant' only means the person who was examined as complainant under section 200. No other person can be deemed to be a complainant, hows much he may be interested in the prosecution of the accused or in the property which is the subject matter of the alleged offence. Therefore, it cannot be disputed and it has not been disputed also that the complainant in the present case was Ram Chandra, who had filed the complaint and who was examined as complainant under Section 200 Cr. P.C. 14. It is also not disputed before me that the Magistrate was making the trial of the case as a summons-case as none of the offences under which accused were charged was punishable for imprisonment for a term exceeding two years. 15. P.C. 14. It is also not disputed before me that the Magistrate was making the trial of the case as a summons-case as none of the offences under which accused were charged was punishable for imprisonment for a term exceeding two years. 15. Now, I have to examine the effect of death of the complainant in summons-case. For this purpose, Section 256 Cr. P.C. is relevant which runs as under : "256.Non-appearance or death of complainant-(1) If the summons has been issued on complaint, and on 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, not- withstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a picador or by the officer conducting the prosecution or whether the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section(1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death." 16. The learned counsel for the petitioner referred the following portion from 41st Report of the Law Commission: "..A question has arisen whether the complainant's death ends the proceedings in a summons case and we find that different views have been expressed on the question. As a matter of policy, we think the answer should depend on the nature of the case and the stage of proceedings at which death occurs. It in impracticable to detail the various situations that may arise and the considerations that may have to be weighed. We think, in the circumstances, that the decision should be left to the judicial discretion of the court, and the legal provision need only be that death and absence stand on the same footing. We trust this will in practice work satisfactorily." 17. From the perusal of Section 256 Cr. We think, in the circumstances, that the decision should be left to the judicial discretion of the court, and the legal provision need only be that death and absence stand on the same footing. We trust this will in practice work satisfactorily." 17. From the perusal of Section 256 Cr. P.C., it is clear that in the case when the complainant is alive but does not appear on the date appointed for the appearance of the accused or any day subsequent thereof to which the hearing may be adjourned, the Magistrate shall acquit the accused, unless he thinks proper for reasons to be recorded, to adjourn the hearing of the case to any other day. In other words, acquittal of the accused is the normal course in case the complainant does not appear. The word 'shall' make it obligatory for the Magistrate to acquit the accused in such a situation, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. This discretion given to the Magistrate to adjourn the hearing of the case for the non-appearance of the complainant cannot be exercised in case of the death of the complainant. The adjournments of the case to any further date contemplated in this section is where it is possible for the complainant to appear on the adjourned date but where the complainant has died, the question of his appearance on the adjourned date does not arise. Therefore, in case of death of the complainant, the Magistrate has no option but to acquit the accused as the second discretion cannot be exercised by him in that situation. 18. In Bontu Appala Nai v. Emperor, AIR 1928 Mad 167=29 Cri. K.J. 257 , a similar question arose for consideration under the corresponding provisions of Section 247, Cr. P.C. ,1898. That was also a summons-case as the case in band. Pending enquiry when the complainant died and his son appeared and wanted to prosecute the case, the Magistrate adjourned the case in order to enable the complainant's son to come on record and thereafter allowing the complainant's son to prosecute the case, proceeded with the enquiry and trial and convicted the accused. Pending enquiry when the complainant died and his son appeared and wanted to prosecute the case, the Magistrate adjourned the case in order to enable the complainant's son to come on record and thereafter allowing the complainant's son to prosecute the case, proceeded with the enquiry and trial and convicted the accused. It was held:"the complainant having died during the course of the enquiry, the Magistrate should have acquitted the accused and should not have proceeded with the enquiry and that appears to be correct procedure to be followed in such cases, because on the death of the complainant none else will be deemed to be complainant, howsoever interested he may be in case". 19. Sub-section (2) of Section 256 Cr. P.C. says: the provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. Hence, on the death of the complainant, there is no possibility of his appearing on any future day, the question of adjourning the case to any future day does not arise and therefore, the Magistrate has to acquit the accused. The provisions of Section 256 Cr. P.C. are clear and unambiguous that on the death of the complainant, the only alternative left to the Magistrate is to acquit the accused. When the provisions of section are dear and admit no other interpretation then the report of Law Commission can be of no assistance to give a different interpretation. 20. The learned counsel for the petitioner has placed reliance in All Dar v. Mohd. Sharif and others, AIR 1966 Jammu and Kashmir 60 , to support his contention that a criminal complaint does not automatically come to an end on the death of the complainant and the accused cannot be discharged or acquitted simply because of the death of the complainant. 21. Firstly, this case relates prior to the Code of Criminal Procedure, 1973 where there was no provision like sub-section (2) of section 256 of the Code of 1973. This provision makes it abundantly clear that in case of non-appearance of the complainant due to his death, the provisions of sub-section(1) shall so far as may be, apply also to such cases. It is true that the acquittal is not automatic but the Magistrate has to pass specific order under sub-section (1) of section 256 of the Code. This provision makes it abundantly clear that in case of non-appearance of the complainant due to his death, the provisions of sub-section(1) shall so far as may be, apply also to such cases. It is true that the acquittal is not automatic but the Magistrate has to pass specific order under sub-section (1) of section 256 of the Code. It is also true that sub-section (1) empowers the Magistrate to adjourn the hearing of the case to some other day if he thinks proper for some reason but this discretion can be exercised only in case when the complainant is alive and does not appear on the day. 22. This matter may be examined from another angle also. Sub- section (4) of section 378 provides a right of an appeal to the complainant in the case instituted upon a complaint under Sub-section (4) of section 378 which reads as under:- "If such as order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court." 23. Here too right of an appeal has been given to the complainant and none else, even to the legal heirs of the deceased complainant. Some High Courts have gone to the extent in holding that the word 'complainant' does not include successor-in-interest of the complainant and successor- in- interest cannot maintain an appeal in case the complainant died before filing an appeal. 24. The aforesaid provision of sub-section (4) of Section 378 Cr. P.C. also supports the view that in a summons-case instituted on a complaint, the legal heir cannot prosecute the case after the death of the complainant and he has no right to file an appeal from the order of acquittal and the right of an appeal only remains with the State Government under sub-section (1) of Section 378 Criminal Procedure Code. 25. My view is fortified by judgment of Karnataka High Court in Subbannu Hegote and others v. Dyavappa Gowda, Cr. L.J. 1405 (year missing) . 26. The next important question of law is whether the present petition under Section 482 Cr. P.C. is maintainable. The accused non-petitioners have been acquitted by the learned Magistrate under sub-section (1) of Section 256 Cr. My view is fortified by judgment of Karnataka High Court in Subbannu Hegote and others v. Dyavappa Gowda, Cr. L.J. 1405 (year missing) . 26. The next important question of law is whether the present petition under Section 482 Cr. P.C. is maintainable. The accused non-petitioners have been acquitted by the learned Magistrate under sub-section (1) of Section 256 Cr. P.C. Against the order of acquittal, an appeal is provided under section 378(4) Cr. P.C. by the complainant. 27. Section 401 Criminal Procedure Code provides "where under this Code an appeal lies and no appeal is brought, no proceeding by way revision shall be entertained at the instance of the party who could have appealed." 28. If the petitioner claims himself to be a complainant after the death of his father Ram Chandra, who had instituted the complaint, then, the remedy against the order of acquittal is provided an appeal under section 378 (4) Cr. P. C. Sub- section (4) of Section 401 Cr. P.C. prohibits even the entertainment of a revision at the instance of the party who could have appealed under the Code. So where a revision cannot be entertained, the question of entertaining a petition under sec- tion 482 Cr. P.C. hardly arises. 29. The power under Section 482 Cr. P.C. can be exercised by the High Court in case a grave injustice has been caused and the aggrieved party has no express remedy in the court. The grave injustice should also be of palpable character and not of doubtful character. 30. The petitioner cannot be permitted to say that he has filed the petition under Section 482 Cr. P.C. because he is not a complainant and thus, not competent to file an appeal under sub- section (4) of section 378 of the Code but he should be permitted to prosecute the complaint as a complainant in place of his father Ram Chandra, who had originally instituted the complaint. On this ground also, this petition under Section 482 Cr. P.C. deserves to be dismissed. 31. Even on merits also, it is not a fit case to exercise powers under Section 482 Cr. P.C. The allegations made in the complaint are of a trivial nature. The complaint was instituted in the year 1985. On this ground also, this petition under Section 482 Cr. P.C. deserves to be dismissed. 31. Even on merits also, it is not a fit case to exercise powers under Section 482 Cr. P.C. The allegations made in the complaint are of a trivial nature. The complaint was instituted in the year 1985. The complainant did not appear in the trial court on a number of hearings while the accused persons, who are 12 in number had been appearing in the trial court on several dates of hearing. 6 years have already passed since the alleged offence. The total loss has been valued by the complainant as Rs. 1100/-. Therefore, it is not a fit case to invoke powers under Section 482 Cr. P.C. 32. Resultantly, this petition has no merit and the same is hereby dismissed.Petition dismissed. *******