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1995 DIGILAW 270 (KER)

Santhi Balagopal v. Benilde

1995-08-25

K.P.BALANARAYANA MARAR

body1995
Judgment :- The common question that arises in these Criminal Revision Petitions is: "On the death of the complainant whether the complaint can be continued by his legal representative." 2. A learned judge of this Court in Jayarajan v. Jayarajan(1992(2)KLT586) held that the Court has power to grant permission to the son of the deceased complainant to proceed with the complaint. This decision requires reconsideration according to counsel on the ground that the decision of the Karnataka High Court in Subbanna v. Dyavappa (1980 Crl.L. J.1405) holding a different view was not brought to the notice of this court. 3. No uniform view appears to have been taken on this question by the High Courts in this country. The Madras and Karnataka High Courts took the view that on the death of a complainant the complaint abates and on that ground the accused has to be acquitted. The Bombay and Calcutta High Courts and the erstwhile Mysore and Nagpur High Courts are of a different view. This Court has adopted the view of those High Courts. 4. To appreciate the contentions advanced by learned counsel for petitioner, it is only appropriate to refer to the decisions of the various High Courts and the Supreme Court on this matter. 5. The earliest decision is one rendered by the Bombay High Court reported in Mahomed Azam v. Emperor (AIR 1926 Bom.178). A Division Bench of the Bombay High Court held that in a 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 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. The accused in that case is alleged to have committed offences punishable under Ss.426 and 143 of the Indian Penal Code. The decision was rendered on a consideration of S.259 and 247 of the Criminal Procedure Code of 1898. 6. The Nagpur High Court in an and Rao v. Gadi (AIR 1932 Nag.72) observed that in a summons case the complainant's son can be permitted to be proceeded with the complaint on the death of the complainant. 7. The Mysore High Court expressed identical views in the decision reported in Subbamma v. Kannappachari (AIR 1969 Mys. 221). 6. The Nagpur High Court in an and Rao v. Gadi (AIR 1932 Nag.72) observed that in a summons case the complainant's son can be permitted to be proceeded with the complaint on the death of the complainant. 7. The Mysore High Court expressed identical views in the decision reported in Subbamma v. Kannappachari (AIR 1969 Mys. 221). It is observed that having regard to the fact that there is no specific provision to the effect that on the death of the complainant the complaint abates, the view taken in AIR 1926 Bom.178 should be accepted as it is supported by sound reasons. The offence which had been complained of against the accused was one punishable under S.7(1) of the Suppression of Immoral Traffic in Women and Girls Act. 8. As early as 1970 this Court had considered the scope and ambit of S.247 of the Code of 1898 in the decision reported in C.M. Stephen v. John Manjooran (1970 KLT 545). On a consideration of the decision in AIR 1926 Bom.178 and the decisions of the other High Courts, it was held 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. 9. The Calcutta High Court has also expressed the same view in Gautam Ranjan Basu v. Shanta Mukherjee (1995 Crl. L.J. 1131). It was held that in case of demise of the complainant there cannot be any ipso facto termination of the criminal proceedings. Magistrate has every power to allow substitution upon demise of the original complainant if he is satisfied from the other surrounding circumstances and materials on record mat such permission should be given. It is further observed that such satisfaction is to be subjective satisfaction derived from the records of the case and a satisfaction derived on fact as available on record. 10. A contrary view is seen taken by the Karnataka High Court in Subbanna v. Dyavappa (1980 Crl. L.J. 1405). That High Court is of the view that so far as the enquiry and trial of summons cases are concerned, the provisions of S.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. L.J. 1405). That High Court is of the view that so far as the enquiry and trial of summons cases are concerned, the provisions of S.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. The Karnataka High Court has followed the decision of the Madras High Court in Bontu Appala Naidu v. Emperor (AIR 1928 Mad. 167) where a similar question arose for consideration under the corresponding provisions of S.247 of the Code of 1898. The Madras High Court is of the view that on the death of the complainant, none else will be deemed to be the complainant, however, interested he may be in the case. The code does not contain a definition of 'complainant'. But the Karnataka High Court is of the view that complainant only means the person who was examined as complainant under S.200. No other person can be deemed to be a complainant however much he may be interested in the prosecution of the accused or in the property which is the subject matter of the alleged offence. This view gains support from the decision of the Calcutta High Court in Nanilal Samantha v. Rahin Ghosh (AIR 1964 Cal. 64). 11. Counsel for petitioner placed strong reliance on these two decisions in support of his plea that the decision in Jayarajan's case requires reconsideration. On hearing counsel and Public Prosecutor and on a proper consideration of the provision contained in S.256 and the various authorities brought to my attention, I am not persuaded to take a view different from the one taken by this Court in Jayarajan's case. 12. There is no specific provision in the Code to the effect that on the death of the complainant the complaint abates. What is the procedure to be adopted in the case of non-appearance of the complainant on the date of hearing due to his death is provided for in sub-sec. (2) of S.256 introduced in the Code of 1973. Sub-section (1) more or less corresponds to S.247 of the old Code. In a summons case when complainant is absent on the date of hearing, three courses are open to the Magistrate: (1) he may acquit the accused; (2) adjourn the case; or (3) proceed with the trial if personal attendance of the complainant is not necessary. Sub-sec. Sub-section (1) more or less corresponds to S.247 of the old Code. In a summons case when complainant is absent on the date of hearing, three courses are open to the Magistrate: (1) he may acquit the accused; (2) adjourn the case; or (3) proceed with the trial if personal attendance of the complainant is not necessary. Sub-sec. (2) provides that 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. It necessarily implies that the procedure contemplated in sub-sec. (1) has to be adopted by the court in the case of non-appearance of the complainant due to his death. In other words, the Magistrate can adopt one or the other of the three modes stated above. Adjourning the case consequent to the death of the complainant is therefore within the powers of the Magistrate. If, in the meanwhile, one of the legal representatives of the deceased complainant or a fit and proper person comes forward and seeks permission to continue the proceeding, it is within the powers of the Magistrate to permit him to do so. 13. The above course, according to counsel, is permissible only in cases of complaints of defamation or matters in which a stigma is attached to the deceased complainant which required removal. It is pointed out that the decision of this Court in C.M. Stephen's case related to a case of defamation and permitting the brother of the deceased to continue the proceedings was necessary to remove the stigma -on the deceased. It is also contended that only an aggrieved person can move the Magistrate for permission to continue the proceedings, Petitioner who is the son of the complainant cannot be said to be a person aggrieved. In the case of defamation any of the relations of the deceased complainant can be said to be an aggrieved person, according to counsel. 14. These pleas are unsustainable in view of the decision of the Supreme Court in Ashwin v. State of Maharashtra (AIR 1967 SC 983). It was held that though the court cannot substitute a new complainant, it has power under S.495 (of the old Code) to authorise conduct of prosecution by any person. The words "any person" would indubitably include the mother of the complainant. It was held that though the court cannot substitute a new complainant, it has power under S.495 (of the old Code) to authorise conduct of prosecution by any person. The words "any person" would indubitably include the mother of the complainant. It is observed that S.198 (of the Code of 1898) itself contemplates that a complaint may be made by a person other than the person aggrieved and there is no valid reason why in such a case it should be held that the death of the complainant puts an end to the prosecution. It is further 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 S.495 of the Code of Criminal Procedure is always available. The Supreme Court further held: "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 Ss.411-A(2) and 417 and on the death of an appellant in all appeals except an appeal from a sentence of fine." 15. In the light of the principles enunciated by the Supreme Court in the aforesaid decision and on a consideration of the various decisions brought to my notice by learned counsel, I see no reason to differ from the views expressed in Jayarajan's case. The learned judge in that case has also drawn attention to the report of the Law Commission in its Forty first Report. The Law Commission observed 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. Since sub-section(2) of S.256 has been introduced with this objective, the contention that the Magistrate has no option but to acquit the accused when the complainant is dead has only to be rejected. As held by this Court, the Magistrate can grant permission to the son of the deceased complainant in appropriate cases to proceed with the complaint. The decision in Jayarajan's case does not therefore requires reconsideration. 16. As held by this Court, the Magistrate can grant permission to the son of the deceased complainant in appropriate cases to proceed with the complaint. The decision in Jayarajan's case does not therefore requires reconsideration. 16. In these cases the Magistrate has permitted the sop of the complainant to proceed with the complaint on the death of the complainant. The order is only in accordance with the principles laid down by this Court in Jayarajan's case. No illegality or error has been committed by the Magistrate in permitting the son of the complainant to continue the prosecution.' These Revision petitions are therefore devoid of merit and are hereby dismissed.