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Himachal Pradesh High Court · body

2002 DIGILAW 322 (HP)

Sunder Singh v. Gindo Devi

2002-11-29

M.R.VERMA

body2002
JUDGMENT : M.R. Verma, J. Since all these petitions under section 482 of the Criminal Procedure Code (hereafter referred to as 'the code') raise common question of law based on similar facts, therefore, are being disposed of by this common order. 2. The facts relevant for the purpose of disposal of these petitions are that one Gian Singh filed five complaints against the petitioner under section 138 of the Negotiable Instruments Act. After taking into account the statement of the complainant and other material on record, the learned trial Magistrate found prima facie case against the petitioner and accordingly issued process against him pursuant to which the petitioner put in appearance before the trial court. However, during the pendency of the complaint. Said Gain Singh died. His wife, the respondent, filed an application before the trial court to substitute her in place of the deceased complainant under section 256 of the code. The trial court allowed the applications vide its orders dated 12.12.2001. Being aggrieved, the petitioner assailed the said orders by filing revision petitions under section 397/401 of the code. The petitions were dismissed by the learned Additional Sessions judge, Shimla by the impugned orders. Hence the petitioner has preferred these petitions. 3. I have heard the learned counsel for the petitioner and have perused the material placed on record. 4. Section 256 of the Code, which provides the course of action to be adopted on non-appearance of the complainant in a summons case (as the cases against the petitioner are), due to his death or otherwise, reads as follows:- "256. 3. I have heard the learned counsel for the petitioner and have perused the material placed on record. 4. Section 256 of the Code, which provides the course of action to be adopted on non-appearance of the complainant in a summons case (as the cases against the petitioner are), due to his death or otherwise, reads as follows:- "256. (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, 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 opinion that the personal attendance 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 to the complainant is due to his death." 5. It is evident on a bare reading of the above provisions that in case of nonappearance of the complainant in a summons case instituted on a complaint the Magistrate has the discretion either in dismiss the complaint, and acquit the accused or to adjourn the hearing to some other date and to dispense with the attendance of the complainant and to proceed with the case. It is thus not the requirement of the aforesaid section that the complaint must invariably the dismissed and the accused must be acquitted on non-appearance of the complainant. In case the non-appearance is due to death of the complainant, it is within the discretion of the Magistrate to substitute other suitable person as a complainant if he is satisfied from the surrounding circumstances and the material on record that there are reasons to do so. 6. In Mohindeer Dutt. Sharma v. Bhagat Ram and another (2000 Cr. L.J. 529), this court has held as under:- "9. 6. In Mohindeer Dutt. Sharma v. Bhagat Ram and another (2000 Cr. L.J. 529), this court has held as under:- "9. Though the code does not provide for impleading the legal representatives of a deceased party in a criminal revision petition, yet at the same time the code also does not provide that the successors of the deceased complainant/respondent in a criminal case where the accused has been convicted and sentenced and financial benefit has accrued by the order of conviction and sentence in favour of the complaint or his legal representatives, they cannot be heard as party b respondent in the petition, or the court is debarred from hearing b them. I am, thus, of the view that in the given circumstances of the case, the legal representatives of the deceased respondent must be substituted as party respondents in the revision petition and must be given an opportunity of being heard. This court under its inherent powers, in my opinion, is fully competent to do so and to afford them an opportunity of being heard in the interest of justice." 7. Though in the aforesaid case the question of joining the legal representatives of the deceased respondent-complainant arose in a criminal Revision arising out of a complaint under section 138 of the Negotiable Instruments Act wherein the complainant died during the pendency of the criminal Revision petition but the same principle will be applicable to a case wherein a complainant dies during the pendency of the complaint in the trial court. This view is fortified by a few judgments of the other High Courts. 8. In T.N. Javarajan v. Jayarajan, (1995) 82 comp. case 629, the Kerala High Court held as under: "Section 256 (1) of the present code more or less corresponds to section 247 of the old code (Criminal Procedure Code, 1898). Subsection (2) to section 256 has been newly added. Even under the old code, the Bombay High Court had occasion to hold that the trying Magistrate has discretion in proper cases to allow the complaint to continue by a proper and fit complaint. In Mahomed Azam v. Emperor, AIR 1926 Bom. Subsection (2) to section 256 has been newly added. Even under the old code, the Bombay High Court had occasion to hold that the trying Magistrate has discretion in proper cases to allow the complaint to continue by a proper and fit complaint. In Mahomed Azam v. Emperor, AIR 1926 Bom. 178, the court held thus (head note): In a case of non-cognizable offence instituted upon a complaint, the axiom of actio personalis moritur-cum-pemsuna, in civil law confined in Loris, does not apply, and the trying Magistrate has discretion in proper cases in allow the complaint to continue by a proper and fit complainant, if the latter is willing. The above view has been adopted in Subbamma v. Kannappachari, AIR 1969 Mys. 221, where the Mysore High Court 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. But some other High Courts have taken a contrary stand. As to the question whether the complainant's death ends the proceedings in a summons case, the law Commission in its 41st report observed: '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 this question. As a matter of policy we think the answer should depend on the nature of the case and the stage of the proceedings at which death occurs. It is impracticable in detail with 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.' As sub-section (2) of the section is intended to achieve this objective it cannot be held that the Magistrate has no option but to acquit the accused when the complainant is dead. In other words, in appropriate cases the Magistrate can grant permission to the son of the deceased complainant proceed with the complaint." 9. In other words, in appropriate cases the Magistrate can grant permission to the son of the deceased complainant proceed with the complaint." 9. In Gautam Ranjan Basu and others v. Shanta Mukher jee and another, (1995 Cri.L.J. 113) the Calcutta High Court, while dealing with a similar question as in hand, held as follows:- "8. Having heard the learned Advocates for the parties and ate considering the materials on record I find that two single Benches of this High Court have taken the view that in case of demise of the complainant there cannot be any ipsofacto termination of the proceeding. A discretion has been left open to the Magistrate to consider all the aspects of the matter and if he finds that there are materials for granting permission to conduct the proceeding by a person by substituting him in place of the deceased complainant, such permission can be granted. The law Commission observed that it is 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'. On such recommendation sub-section (2) has been incorporated in section 256 of the code of criminal procedure. That being the position the Magistrate has every power to allow substitution upon demise of the original complainant, if he is satisfied from the surrounding circumstances and materials on record that such permission should be given. That satisfaction is to be subjective satisfaction derived from the records of the case and a satisfaction derived on fact as available on record." 10. In Helen C. Pinheiro and others v. M/S. Kamaxi Steel Products, 2000 Cri.L.J. 1622, while dealing with a similar question, the Bombay High Court held as under:- "11....Section 256, Criminal Procedure Code confers discretion on the Magistrate to proceed with the trial in the absence or death of the complainant. Where the complainant, is represented by pleader officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, he is empowered to dispense with attendance and proceed with the case. Where the complainant, is represented by pleader officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, he is empowered to dispense with attendance and proceed with the case. The same analogy in principle has to be extended in a case where the complaint has died after the final disposal of the criminal case ending in acquittal and after filing leave to appeal and where the legal heirs of the complainant on account of the death of the complainant wish to prosecute the remedy of leave to appeal against acquittal. 12. We have to bear in mind that the concept of locus standi has undergone considerable change and the well settled principle in criminal law is that any person can set the law in motion. Moreover sub-section (2) of S. 256, Criminal Procedure code was introduced with a purpose that due to the death of a complainant the proceedings do not come to an end automatically but discretion in the matter is given to the Magistrate which has to be exercised in terms of S. 256, Criminal Procedure Code. In an application for leave in appeal personal presence of the deceased appellant is not required. Moreover, even though there is provision contained in S. 394, criminal procedure code for abatement of appeal in case of death of the accused, there is no provision of abatement of the case on the death of the complainant. 13. For the aforesaid reasons, I do not find any merit in the submission advanced by the learned advocate Shri Salkar on behalf of the respondents Kamaxi Steel Products. The application for bringing heirs of original complainant, Michael Pinheiro has, therefore, to be granted. The said application is, accordingly, granted and the legal heirs are permitted to be brought on record for the purpose of prosecuting leave to appeal by them." 11. In view of the above settled position in law, it is clear that in the event of death of the original complainant in a summons case it is within the discretion of the trying Magistrate to allow the complaint to be continued by a proper and fit person as complainant, if he is so willing. 12. In view of the above settled position in law, it is clear that in the event of death of the original complainant in a summons case it is within the discretion of the trying Magistrate to allow the complaint to be continued by a proper and fit person as complainant, if he is so willing. 12. In the instant case the respondent who has been permitted in continue the complaints by the impugned orders of the trial Magistrate, is the widow of the deceased complainants. Therefore, the trial court has not committed any illegality by allowing the respondent to prosecute the complaints. The impugned order, therefore, does not warrant any interference by invoking the inherent powers of this court. 13. As a result all these petitions are dismissed.