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2001 DIGILAW 316 (PNJ)

Bhag Singh v. State Of Punjab

2001-03-08

V.M.JAIN

body2001
Judgment 1. This is a petition under S.482, Cr. P.C. filed by the accused-petitioner, for setting aside the order dated 18-11-2000, passed by the JMIC, Ferozepur, allowing respondent No. 2, Harnam Singh, to pursue the criminal complaint, filed by his father, Arjan Singh, against the present petitioner, in view of the death of Arjan Singh, complainant. 2. The facts, relevant for the decision of the present petition, are that Arjan Singh (since deceased) had filed a criminal complaint under Ss. 452/427/354/148/149, IPC, against various accused, including accused-petitioner, Bhag Singh. After recording preliminary evidence, the learned trial Magistrate, ordered summoning of the accused for the aforesaid offences. After some of the accused had put in appearance and the case was at the stage of service of the remaining accused, Arjan Singh, complainant, expired. Thereafter, his son Harnam Singh filed an application before the learned Magistrate for permission to pursue the complaint, in question, in place of his father, Arjan Singh, complainant. The said application was contested by the accused, who had put in appearance before the learned trial Magistrate, by filing the written reply, alleging therein that there was no provision, under the Cr. P.C. for a legal body to pursue the complaint, after the death of thecomplainant. The learned Magistrate, after hearing both the sides, allowed Harnam Singh to pursue the criminal complaint, filed by his father, Arjan Singh, deceased, against the accused, vide order dated 18-11-2000.Aggrieved against this order of the learned Magistrate, one of the accused, namely Bhag Singh, has filed the present petition, under S. 482, Cr. P.C. in this Court. 3. I have heard learned counsel for the parties and gone through the record carefully. 4. Learned counsel for the petitioner has submitted before me that there is no provision under the Cr. P.C. whereby the legal heir of the complainant could be allowed to pursue the complaint, on behalf of the complainant, after death of the complainant. However, I find no force in this submission of the learned counsel for the petitioner. 5. Section 256 of the Cr. P.C. 1973, reads as under :- "256. P.C. whereby the legal heir of the complainant could be allowed to pursue the complaint, on behalf of the complainant, after death of the complainant. However, I find no force in this submission of the learned counsel for the petitioner. 5. Section 256 of the Cr. P.C. 1973, reads as under :- "256. Non-appearance or death of complainant - (1) If the summons has been issued on complainant, 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, notwithstanding 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 pleader or by the officer conducting the prosecution or where the Magistrate is of the 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."From a persual of the above, it would be clear that under sub-section (1), where the complainant is absent from the Court, the Magistrate is competent to adjourn the hearing of a case to some other day and where the complainant is represented by a counsel and where the Magistrate is of the opinion that the personal presence of the complainant is not necessary, the Magistrate is empowered to dispense with the attendance of the complainant and to proceed with the case. Under sub-section (2), it is provided that the provisions of sub-section (1) shall also apply to the cases where the non-appearance of the complainant is due to his death. Under these circumstances, it would be clear that the Magistrate is competent to proceed with the criminal complaint, even where the complainant is absent due to his death. 6. In Ashwin Nanu Bhai Vyas V/s. State of Maharashtra, 1967 0 CrLJ 943) it was held by their Lordships of Hon ble the Supreme Court that the power of the Court to substitute another prosecution agency under S. 495, Cr. P.C. (old), was always available. 6. In Ashwin Nanu Bhai Vyas V/s. State of Maharashtra, 1967 0 CrLJ 943) it was held by their Lordships of Hon ble the Supreme Court that the power of the Court to substitute another prosecution agency under S. 495, Cr. P.C. (old), was always available. In the reported case, the Magistrate had allowed the mother to carry on the prosecution after the death of the complainant. It was further held that the Magistrate was right in proceeding with the inquiry by allowing the mother to carry on the prosecution, observing that under S. 495, Cr. P.C . (old), the mother may continue the prosecution herself or through a pleader. It was further held as under :- "We see no reason why we should be astute to find a lacuna in the procedural law by which the trial of such important cases would be stultified by the death of a complainant when all that the S. 198 requires is the removal of the bar." 7. In S. Reddappa V/s. M. Vijaya, 1997 0 CrLJ 98 (Karnataka), the complainant had filed a criminal complaint before the Magistrate against the accused under S. 138 of the Negotiable Instruments Act. After recording preliminary evidence of the complainant, the Magistrate ordered summoning of the accused. Thereafter, the charge was framed and the case was fixed for evidence. Meanwhile, the complainant died and subsequently his son filed an application praying the Court to substitute him in place of the complainant and to permit him to continue the proceedings. The said application was opposed by the accused. After hearing both the sides, the learned Magistrate dismissed the application filed by the son of the complainant and acquitted the accused. Aggrieved against the same, a revision petition was filed before the Karnataka High Court. After hearing both the sides, the Karnataka High Court allowed the revision petition, set aside the order passed by the trial Magistrate and remitted the case to thetrial Magistrate, with a direction to take up the case at its original number and to grant permission to the petitioner to continue the proceedings from the stage at which these were interrupted and to dispose of the same in accordance with law. While allowing the said revision petition, it was held by the Karnataka High Court that on reading whole of the Ss. 256 and 302, Cr. While allowing the said revision petition, it was held by the Karnataka High Court that on reading whole of the Ss. 256 and 302, Cr. P.C. 1973, and keeping in mind that a criminal case does not abate on the death of the complainant, S. 256, Cr. P.C. empowers the Magistrate in a given case to permit a fit and proper person to continue the prosecution on the death of the complainant. Reliance was placed on the various decisions of the Karnataka High Court as also of the High Courts of Andhra Pradesh, Kerala and Calcutta, detailed therein. 8. In view of the law laid down by their Lordships of Hon ble the Supreme Court and by the Karnataka High Court, in the cases refered to above, in my opinion, it could not be said that the order dated 18-11-2000, passed by the learned Magistrate, allowing Harnam Singh to pursue the complaint, filed by his father, Arjan Singh, deceased, suffers from any illegality or irregularity, which may require interference by this Court in the present petition under S. 482, Cr. P.C. 9. In view of the above, I find no merit in this petition and the same is hereby dismissed.