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Rajasthan High Court · body

2000 DIGILAW 585 (RAJ)

Raju Manbani v. Smt. Sushila Devi

2000-05-05

BHAGWATI PRASAD

body2000
JUDGMENT 1. - In the present criminal misc. petition, an order of the trial court dated 14.7.1999 is under challenge. In the order under challenge, the trial court had permitted the production of secondary evidence. The trial court permitted the production of secondary evidence in a complaint filed under Section 138 of the Negotiable Instruments Act. During the pendency of this petition, the complainant petitioner had died. An application has been moved on behalf of the legal representatives of the petitioner under Section 482 Criminal Procedure Code praying that the legal representatives of the petitioner may be substituted as petitioners in the petition as right to sue survives in them. It is this application which is being decided by this order. 2. Learned counsel for the petitioner has submitted that as and when the right to sue survives, the substitution is required to be made, of the legal representatives, on whom the right to sue survives. Learned counsel for the petitioner further submitted that Section 256 Criminal Procedure Code makes a provision that in the absence of the complainant the court can adjourn the hearing of the case. It is not mandatory that for non-appearance of the complainant, the complaint should be dismissed. In the facts and circumstances of the present case the substitution should be permitted of the legal representatives of the deceased petitioner, because the complainant had died, and an application has already been moved on behalf of the legal representatives of the deceased petitioner for substitution. 3. Learned counsel for the petitioner has relied upon the following decisions of various High Court : Dior International (P) Ltd. & Ant. Vs. M/s. Raghuvansh Enterprises ( 1999(2) Crimes 392 ) - In this case the Delhi High Court has held that on the death of complainant the substitution can be permitted on the analogy of Section 256 Criminal Procedure Code. Anil G. Shah Vs. J. Chittranjan Co. &Anr. ( 1998(2) Crimes 347 ) : In this case the Gujarat High Court has held that merely because the original complainant payee has died, there could not be abatement of the proceedings. The legal heirs of the original complainant are entitled to come forward and ask for their substitution in place of the complainant so as to proceed further with the trial. Halen C. Pinheiro and Ors. Vs. The legal heirs of the original complainant are entitled to come forward and ask for their substitution in place of the complainant so as to proceed further with the trial. Halen C. Pinheiro and Ors. Vs. M/s. Kamaxi Steel Products through its partner, 1999(4) Crimes 69 : In this case, the Bombay High Court in an appeal held that where the complaint has already culminated into acquittal of the respondent, the legal representatives of the complainant be brought on record. Associated Cement Co. Ltd. Vs. Keshvanand (1998(1) Crimes 88) - In this case, the Hon'ble Supreme Court has held that the non-appearance of the complainant should not always ipso facto result into dismissal of the complaint and acquittal of the accused. The discretion of the court should be exercised in judicious manner and without impairing the administration of justice. The court must consider whether the presence of the complainant was essential on the date in question. 4. I have considered the submission advanced by the learned counsel for the petitioner and the learned Public Prosecutor and have also considered the cases cited at the bar. 5. As regards the question of survival of the right to sue the provisions are made in Order 22 of the Code of Civil Procedure, no analogous provision has been incorporated in the Criminal Procedure Code. The concept of survival of right to sue has not been included in the Criminal Procedure Code in general terms. In most of the criminal matters, the litigation on behalf of the complainant is pursued by the State. It is only in summons cases or some kind of complaint cases that the State does not come into picture. That being the position the legislature has intentionally omitted to incorporate the concept of right to sue, substitution of legal representatives in criminal matters has not been provided as has been provided in Order 22 in Code of Civil Procedure. 6. It cannot altogether be lost sight of that the framers of the criminal law were conscious of the death of a party in a criminal matter Under Section 394 Criminal Procedure Code a provision of abatement of appeal has been made wherein it has been said that on the death of the accused the criminal appeal shall abate. A near relative can choose to come forward and apply to the court to continue the appeal in certain contingencies. A near relative can choose to come forward and apply to the court to continue the appeal in certain contingencies. The provision of abatement of appeal on the death of the accused has been provided. No provision has been made as regards the complaint. It can be said that the legislature has consciously dealt with the contingency of the death of an accused. No provision was made for the death of the complainant. 7. Under Section 256 Criminal Procedure Code it has been provided that in the event of non-appearance or death of the complainant, the complaint should be dismissed and the accused should be acquitted. A proviso has been added to sub-section (1) of Section 256 Criminal Procedure Code whereby a discretion has been vested in the court that as and when attendance of the complainant is not necessary, the Magistrate may dispense with the attendance of the complainant. 8. It can be observed that the exception carved out in Section 256 Criminal Procedure Code clearly postulates that if the presence of the complainant is not necessary the same can be dispensed with. Consequence of non- appearance of the complainant would result in dismissal of the complainant unless the presence is dispensed with. Such is also the interpretation put forward by the Hon'ble Supreme Court in Associated Cement Co. Ltd. (supra). Thus, it will be seen that the court has to exercise its discretion In the matter of absence of the complainant by observing that whether the presence of the complainant was necessary on the relevant day. 9. While enacting sub-section (2) of Section 256 Criminal Procedure Code, which relates to the death of the complainant, no such discretion has been vested in court. That being the position, it cannot be said that the framers of the law had ever thought of providing for substitution of the complainant's legal representatives as complainant on his death 10. A separate provision can also be seen In sub-section (6) of Section 145 Criminal Procedure Code where the substitution of the legal representatives of a party in the proceedings has been provided for. This provision has made provision for the substitution of either party's legal representatives In the event of party's death. Making of such a provision also shows the consciousness of the legislature in the event of death of a party in Section 145 Criminal Procedure Code proceedings. This provision has made provision for the substitution of either party's legal representatives In the event of party's death. Making of such a provision also shows the consciousness of the legislature in the event of death of a party in Section 145 Criminal Procedure Code proceedings. Enactment of such provisions lead to an inference that if the legislature has not chosen to permit the substitution of the legal representatives or legal heirs of the complainant. then such omission is a conscious omission. In criminal law the State is the custodian in most of the matters. The complainant has not been given much liberty to handle a criminal matter in the court of law. 11. The cases relied upon by the learned counsel for the petitioners can be considered to throw light on the controversy in question. Associated Cement Co. (Supra) is a case where the complainant was absent. Thus, it cannot be considered to be a case where the death of the complainant was involved.As regards the Delhi High Court decision in Halen C.Pinheiro (supra) and Gujarat High Court's decision in Anil G. Shah (supra) are concerned, suffice it to say that both the decisions are on the premises that the substitution is permissible after the cognizance is taken. But these decisions contain no guidance so far as the present case is concerned. Presently. this Court is not considering the question of substitution of the legal representatives' of the complainant in the complaint. This Court is considering only the substitution of the legal representatives in misc. proceedings pending before this Court. As regards misc. petition there is no guidance available from the cases relied upon by the learned counsel at the bar. There is no express provision in the Criminal Procedure Code for taking on record the legal representatives of the deceased complainant in criminal misc. proceedings on record. 12. As regards abatement the provision in civil proceedings is made under Order 22 C.P.C. wherein it has been provided that it right to sue survives no abatement shall take place. But concept of right to sue Is not available in the Criminal Procedure Code. A limited reference is available in Sections 396 and 145 Criminal Procedure Code Thus, the concept of right, to sue in wider sense has been omitted from the Criminal Procedure Code. But concept of right to sue Is not available in the Criminal Procedure Code. A limited reference is available in Sections 396 and 145 Criminal Procedure Code Thus, the concept of right, to sue in wider sense has been omitted from the Criminal Procedure Code. That being the position the same cannot be imported from the civil jurisprudence to the criminal jurisprudence. The legal representatives in civil matters can pursue a civil matter only if it is held that the right to sue survives. A limited scope of right to sue having been provided for in Sections 256 and 145 Cr. P.C. it can safely be inferred that a sweeping provision of right to sue has not been provided in the Criminal Procedure Code. The concept of survival of right to sue is not present in broad terms as has been provided in the civil matters. The availability of any such right in criminal matter is a proposition which can be doubted except that such can be done in 145 Cr. P.C. proceedings or appeal. The legal representatives/legal heirs cannot pursue the complaint after the death of the complainant when its consequences are directly available under Section 256 (2) Cr. P.C. 13. In this view of the matter, the present application for substitution of the legal representatives as payed for by the petitioners is held to be impermissible. Consequently, the application seeking impleadment of the legal presentatives of the deceased petitioner is dismissed. 14. In the result, the misc. petition is also dismissed.Misc. Petition Dismissed *******