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2014 DIGILAW 1497 (MP)

Virendra Narayan Mishra v. Ashok

2014-11-19

SUSHIL KUMAR GUPTA

body2014
ORDER Gupta J. -- 1. This petition has been preferred by the petitioner under section 482 of Code of Criminal Procedure, 1973 against the order dated 22.11.2012 passed by the Judicial Magistrate First Class, Chanderi in Criminal Case No. 404/2010 and the order dated 4.4.2013 passed by the Additional Sessions Judge Mungaoli, District Ashoknagar in Criminal Revision No.124/2012, by which the order passed by the Judicial Magistrate First Class, Chanderi was confirmed. 2. Brief facts of the case are that one Arjun Singh had filed a complaint against the petitioners for commission of offence punishable under section 420 of IPC. During the pendency of the complaint, the complainant Arjun Singh had died. After the death of Arjun Singh, the respondent had filed an application under section 302 of CrPC for giving permission to conduct the complaint which was allowed by the Judicial Magistrate First Class by the impugned order dated 4.4.2013. 3. Learned counsel for the petitioner submitted that the impugned order is against the law and is liable to be set aside. The respondents cannot be permitted to conduct the case under section 302 of CrPC. He also submitted that the respondent cannot be substituted as a complainant in place of complainant Arjun Singh. He further submitted that though the respondent may be permitted to conduct the prosecution under section 302 of CrPC, but he cannot take place of the complainant and cannot be impleaded as a complainant in the complaint. 4. Learned counsel for the respondent opposed and controverted the submission advanced by the learned counsel for the petitioner and submitted that there is no illegality in allowing the application under section 302 of CrPC by the learned Magistrate. He also submitted that this second revision is not maintainable under section 397 (3) of CrPC in the garb of section 482 of CrPC where the first revision petition No.124/2012 has been dismissed by the Additional Sessions Judge Mungaoli and prays for dismissal of this petition. section 302 of the CrPC reads as under : “302. He also submitted that this second revision is not maintainable under section 397 (3) of CrPC in the garb of section 482 of CrPC where the first revision petition No.124/2012 has been dismissed by the Additional Sessions Judge Mungaoli and prays for dismissal of this petition. section 302 of the CrPC reads as under : “302. Permission to conduct prosecution : - (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of inspector, but no person, other than the Advocate-General, or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission : Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. (2) Any person conducting the prosecution may do so personally or by a pleader. 5. I have heard learned counsel for the parties and also gone through the impugned orders of both the Courts below. 6. From bare reading of section 302 of the CrPC, it is clear that Magistrate has jurisdiction to permit any person to conduct the case. Learned Magistrate has invoked its jurisdiction by giving the permission to respondents to conduct the case after death of Arjun Singh. 7. It is true that there is no provision for bringing on record the legal representatives of a party in criminal proceedings but as the penal offence committed by a person unless from the nature of it is personal to the complainant is an offence against the society and has to be prosecuted in accordance with the provisions of law till its final disposal. Section 302 of Cr.P.C. authorizes the Magistrate to permit any person to conduct the prosecution on behalf of the complainant. A Division Bench of Calcutta High Court in Smt. Mayabati Haldar v. Rent Controller, Calcutta AIR 1981 Cal.P.118 (D.B.) dealt with the matter and held : “The view that section 247 also applies to the nonappearance of the complainant because of his death presupposes by necessary implication that section 247 is a provision dealing with the consequence of the death of a complainant. In repelling such view, the learned Judge has placed reliance on a decision of the Supreme Court in Ashwin v. State of Maharashtra . In that case, the complainant died at the committal stage under Chapter XVIII of the Code, the question that came to be considered by the Supreme Court was whether the complainant’s mother could be substituted as the fit and proper complainant as prayed for by her or whether the proceedings has ipso facto come to an end on the death of the complainant. While overruling the contention of the accused that the proceedings terminated on the death of the complainant, the Supreme Court observed : The Criminal Procedure Code provides only for the death of an accused or an appellant but does not expressly provide for the death of complainant. The Code also does not provide for abatement of inquiries and trials although it provides for the abatement of appeals on the death of the accused in appeals under sections 411A(2) and 417 and on the death of an appellant in all appeals except an appeal from a sentence of fine. Therefore, what happens on the death of a complainant, in a case started on a complaint has to be inferred generally from the provisions of the Code.” The same view has been taken in the case of Ashok Kumar v. Abdul Latif and others, 1990 (1) Crimes 156. 8. In view of the aforesaid discussion, in my opinion both the Courts below have not committed any illegality, impropriety or irregularity in passing the impugned orders and there is no scope for any interference by this Court and therefore, this Court has not inclined to interfere in the matter by invoking the inherent powers under section 482 of CrPC. 9. Consequently, this petition under section 482 of CrPC stands dismissed. S. K. Sharma for petitioners; Devendra Sharma for respondent.