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Rajasthan High Court · body

2008 DIGILAW 39 (RAJ)

Panna Lal Sharma v. Rameshwar Lal Choudhary

2008-01-07

G.S.SARRAF

body2008
JUDGMENT 1. - In this appeal an application has been filed with the prayer that the applicants Smt. Kamla Devi (wife of the deceased complainant) and Om Prakash (son of the deceased complainant) may be substituted in place of the deceased complainant-appellant Panna Lal and they may be allowed to prosecute this leave to appeal. 2. The facts giving rise to the present controversy may be summarised thus. The complainant Panna Lal filed a complaint against the respondent Rameshwar Lal under Section 133 of the Negotiable Instruments Act (hereinafter referred to as the 'Act'). By judgment dated 26.7.2004 passed by Additional Chief Judicial Magistrate No. 6, Jaipur City, Jaipur in case No. 201/99 the accused respondent Rameshwar Lal was acquitted of the offence under Section 138 of the Act. 3. Aggrieved by this judgment the complainant Panna Lal filed Special Leave to Appeal. During the pendency of this special leave to appeal the complainant Panna Lal died and thereafter the applicants Smt. Kamla Devi and Om Prakash have filed this application for substitution and for permission to prosecute this leave to appeal. 4. Heard learned Counsel for the applicants, learned Counsel for the respondent and learned Public Prosecutor. Learned Counsel for the applicants submits that there is no provision in Cr.P.C. for abatement of the proceedings on the ground of death of the complainant and, therefore, the applicants be allowed to be substituted in place of the deceased complainant and they may be allowed to prosecute this special leave to appeal. He places reliance on a decision of Bombay High Court reported in 1999 (4) Crimes 69 and on a decision of Madhya Pradesh High Court reported in. 5. Learned Counsel for the accused respondent submits that an appeal can be filed by the complainant only and the legal heirs or the complainant do not fall in the ambit of the word complainant, therefore, since the leave to appeal has not been admitted so far the legal heirs cannot be substituted in place of the deceased complainant to prosecute this leave to appeal as there is no such provision in Cr.P.C. for such substitution. He places reliance on. Khedu Mahton v. State of Bihar, AIR 1971 SC 66 : AIR 1968 Rajasthan 297 : AIR 1967 Calcutta 442 : AIR 1964 Calcutta 64 . 6. He places reliance on. Khedu Mahton v. State of Bihar, AIR 1971 SC 66 : AIR 1968 Rajasthan 297 : AIR 1967 Calcutta 442 : AIR 1964 Calcutta 64 . 6. An appeal under Section 394, Cr.P.C. can only abate on the death of the accused and not otherwise, therefore, in the present case the death of the complainant after filing of special leave to appeal does not result in abatement of the appeal. 7. 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 jean set the law in motion. Section 256, Cr.P.C. confers discretion on the Magistrate to proceed with the trial in the absence of or after the 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 his attendance and proceed with the case. 8. I fail to understand as to why the same analogy cannot be extended in a case where the complainant 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. For the aforesaid reasons. I do not find any merit in the submission advanced by learned Counsel for the accused respondent. 9. The application for substituting the applicants in place of the deceased complainant is granted and the applicants are allowed to be brought on record for the purpose of prosecuting this leave to appeal by them. Amendment in the title of special leave to appeal be made. 10. The application stands disposed of as above.Ordered accordingly. *******