Chand Devi Daga . vs Manju K. Humatani .

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APELLATE JURICTION

CRIMINAL APPEAL NO. 1860 OF 2017 (ARISING OUT OF SLP(CRL.) NO.4580 OF 2017)

CHAND DEVI DAGA & ORS. ... APPELLANTS

VERSUS

MANJU K. HUMATANI & ORS. ... RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

This appeal has been filed against the judgment of the

High Court of Chhatisgarh allowing an IA filed by the legal

representatives of the petitioner in Criminal Misc. Petition.

The respondents aggrieved by the order of the High Court dated

02.02.2017 has filed this appeal.

2. The brief facts necessary for deciding this appeal are:

Smt. Chandra Narayan Das whose legal representatives are

the respondent Nos.1 to 7 had filed a complaint against the

appellants alleging offence under Sections 420, 467, 468,

471, 120B, 201 and 34 IPC. The husband of Smt. Chandra Narayan Signature Not Verified

Das was a lease holder of a shop situated in the Civic Centre, Digitally signed by ASHWANI KUMAR Date: 2017.11.03 17:34:23 IST Reason:

Bhilai Steel Plant, Chhatisgarh. Shop No.12 was allowed in the

name of the husband of appellant No.1 in the year 1959.

2 Although, husband of the appellant No.1, a Member of

Parliament had died in 1952 itself, it was alleged by the

complainant that certain agreements were got executed by legal

heirs of Member of Parliament which constituted commission of

offence. The complaint was dismissed by the Magistrate vide

order dated 26.02.2015 holding that prima facie case under

Sections 420, 467, 468, 120B and 201/34 IPC is not made out

against the accused.

3. Smt. Chandra Narayan Das filed a criminal revision before

the Additional Sessions Judge, Durg which was dismissed by

VIIIth Additional Sessions Judge, Durg vide judgment dated

20.11.2015. Criminal Misc. Petition against the said order

dated 20.11.2015 was filed in the High Court of Chhatisgarh by

Smt. Chandra Narayan Das. The High Court on 18.02.2016 issued

notice in the Criminal Misc. Petition. After issuance of

notice the petitioner, Smt. Chandra Narayan Das died on

02.04.2016. An application was filed by the legal heirs of

Smt. Chandra Narayan Das praying them to be substituted in

place of the petitioner. The application was opposed by the

appellants. The High Court vide its order dated 02.02.2017

allowed the said application and permitted the legal

representatives of Smt. Chandra Narayan Das to come on record

for prosecuting the Criminal Misc. Petition. Aggrieved by the 3

said judgment, the appellants have come up in this appeal.

4. Learned counsel for the appellants submits that in the

Code of Criminal Procedure, 1973(hereinafter referred to as

“Code 1973”) there is no provision which permits legal

representatives of the complainant to be substituted for

prosecuting the complaint. It is submitted that the present is

a case where no summons were issued to the appellants since

the complaint was rejected by the Magistrate and a criminal

revision challenging the said order has also been dismissed.

It is submitted that the High Court committed error in

permitting the legal representatives of complainant to be

brought on record for prosecuting the case.

5. Learned counsel for the respondents refuting the

submission of the learned counsel for the appellants contends

that rejection of complaint and order of the Sessions Judge

dismissing the criminal revision were under challenge before

the High Court on the ground that prima facie offence was

disclosed in the complaint and courts below committed error in

rejecting the complaint. The offence having been committed by

the appellants, the High Court has every jurisdiction to

permit the legal representatives to prosecute the matter in

the event of death of original complainant. It is submitted

that Code 1973 does not contain any provision that on death of 4

complainant, the complaint cannot be allowed to be prosecuted

by any other person including the legal representatives.

6. We have considered the submissions of the learned counsel

for the parties and perused the records.

7. There is no dispute regarding facts and events in the

present case. The original complainant died during the

pendency of the Criminal Misc. Petition before the High Court

which was filed challenging the order of the Sessions Judge

rejecting the criminal revision against the order of

Magistrate dismissing the complaint.

8. Section 256 of Code of Criminal Procedure, 1973 is

contained in Chapter XX with the heading “Trial of

summons­cases by Magistrates”. Section 256 on which reliance

has been placed provides as follows:

“Section 256. Non­ appearance or death of complainant.­(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 of the complainant is not necessary, the Magistrate may dispense with 5

his attendance and proceed with the case.

(2) The provisions of sub­section (1) shall, so far as may be, apply also to cases where the non­appearance of the complainant is due to his death.”

9. Analogous provision to Section 256 of Code 1973 was

contained in Section 247 of Criminal Procedure Code, 1898. In

Section 247 the proviso was added in 1955 saying that “where

the Magistrate is of the opinion that personal attendance is

not necessary, he may dispense with such attendance”. The said

proviso took out the rigour of the original rule and whole

thing was left to the discretion of the Court. Sub­section (1)

of Section 256 contains the above proviso in the similar

manner. Thus, even in case of trial of summons­case it is not

necessary or mandatory that after death of complainant the

complaint is to be rejected, in exercise of the power under

proviso to Section 256(1), the Magistrate can proceed with the

complaint. More so, the present is a case where offence was

alleged under Sections 420, 467, 468, 471, 120B and 201 read

with 34 IPC for which procedure for trial of summons­case was

not applicable and there is no provision in Chapter XIX “Trial

of warrant­cases by Magistrates” containing a provision that

in the event of death of complainant the complaint is to be

rejected. The Magistrate under Section 249 has power to 6

discharge a case where the complainant is absent. The

discharge under Section 249, however, is hedged with condition

“the offence may be lawfully compounded or is not a cognizable

offence”. Had the Code 1973 intended that in case of death of

complainant in a warrant case the complaint is to be rejected,

the provision would have indicated any such intention which is

clearly absent.

10. In this context a reference is made to judgment of this

Court in Ashwin Nanubhai Vyas Vs. State of Maharashtra, AIR

1967 SCC 983. In the said case this Court had occasion to

consider the provisions of Criminal Procedure Code, 1898. The

complainant had filed a complaint against the appellants. The

complaint was filed under Sections 498 and 496 IPC. Accused

was summoned. However, during the pendency of the complaint,

the complainant died. The complainant’s mother applied for

substituting her to act as complainant and continue the

proceedings. Magistrate permitted the mother of complainant to

pursue the complaint against which revision was filed before

the High Court which was dismissed. Aggrieved by the order of

the High Court the appellant had come up before this Court. In

the above context this Court considered the pari materia

provisions of the Criminal Procedure Code, 1898 with regard to

Section 247 (now Section 256) it was specifically held that 7

said provision does not furnish any valid analogy. In

paragraph 4 of the judgment following was observed:

“4 Mr. Keswani for Vyas, in support of the abatement of the case, relied upon the analogy of Section 431 under which appeals abate and Sections 247 and 259 under which on the complainant remaining absent, the court can acquit or discharge the accused. These analogies do not avail him because they provide for special situations. Inquiries and trials before the court are of several kinds. Section 247 occurs in Chapter XX which deals with the trial of summons cases by a Magistrate and Section 259 in Chapter XXI which deals with trial of warrant cases before Magistrates. Under the former, if summons is issued on a complaint and the complainant on any day remains absent from the court, unless it decides to proceed with the trial, must acquit the accused. This can only happen in the trial of cases, which are punishable with imprisonment of less than one year. This not being the trial of a summons case but a committal inquiry, Section 247 neither applies nor can it furnish any valid analogy. Similarly, Section 259, which occurs in the Chapter on the trial of warrant cases, that is to say cases triable by a Magistrate and punishable with imprisonment exceeding one year can furnish no analogy. Under Section 259, if the offence being tried as a warrant case is compoundable or is not cognizable the Magistrate may discharge the accused before the charge is framed if the complainant remains absent. Once again this section cannot apply because the Presidency Magistrate was not trying the case under Chapter XXI.”

11. This Court further had occasion to consider Section 495

of Code 1898 (now Section 302 of Criminal Procedure Code) and

this Court laid down in paragraph 7 as follows: 8

“7 Mr. Keswani contends that the Presidency Magistrate has made a "substitution" of a new complainant and there is nothing in the Code which warrants the substitution of one complainant for another. It is true that the Presidency Magistrate has used the word "substitute" but that is not the effect of the order. What the Presidency Magistrate has done is to allow the mother to act as the complainant to continue the prosecution. This power was undoubtedly possessed by the Presidency Magistrate because of Section 495 of the Code by which Courts are empowered (with some exceptions) to authorise the conduct of prosecution by any person. The words 'any person' would indubitably include the mother of the complainant in a case such as this. Section 198 itself contemplates that a complaint may be made by a person other than the person aggrieved and there seems to us no valid reason why in such a serious case we should hold that the death of the complainant puts an end to the prosecution.”

12. At this stage reference to Section 302 of the Criminal

Procedure Code is necessary. Section 302 of the Criminal

Procedure Code is contained in Chapter XXIV with the heading

“General provisions as to inquiries and trials”. Section 302

relates to permission to conduct prosecution which is to the

following effect:

“ Section 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 Advocate­General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, 9

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.”

13. This Court had occasion to consider Sections 256 and

302 in Balasaheb K. Thackeray & Anr. Vs. Venkat @ Babru,

(2006) 5 SCC 530. In the above case complaint was filed

under Section 500 read with Section 34 IPC. A petition was

filed under Section 482 of the Code 1973 against the order

of issue of process in the High Court which was dismissed.

SLP was filed in this Court in which notice was issued and

during the pendency of the appeal it was noted that

complainant had died. It was contended that the complaint

be dismissed on the ground that complainant is dead. This

Court in the above context referred to Sections 256 and

302. This Court repelled the argument of the appellant that

complaint be dismissed on the ground that complainant had

died. Following was held in paragraphs 3 to 6:

“3. Learned counsel for the appellants with reference to Section 256 of the Code submitted that the complaint was to be dismissed on the ground of the death of the 10

complainant. As noted above learned counsel for Respondent 1’s legal heirs submitted that the legal heirs of the complainant shall file an application for permission to prosecute and, therefore, the complaint still survives consideration.

4. At this juncture it is relevant to take note of what has been stated by this Court earlier on the principles applicable. In Ashwin Nanubhai Vyas v. State of Maharashtra with reference to Section 495 of the Code of Criminal Procedure, 1898 (hereinafter referred to as “the old Code”) it was held that the Magistrate had the power to permit a relative to act as the complainant to continue the prosecution. In Jimmy Jahangir Madan v. Bolly Cariyappa Hindley after referring to Ashwin case it was held that heir of the complainant can be allowed to file a petition under Section 302 of the Code to continue the prosecution.

5. Section 302 of the Code 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.” 11

6. To bring in application of Section 302 of the Code, permission to conduct the prosecution has to be obtained from the Magistrate inquiring into or trying a case.

The Magistrate is empowered to 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 the Government Advocate or a Public Prosecutor or Assistant Public Prosecutor shall be entitled to do so without such permission.”

14. Two Judge Bench in Jimmy Jahangir Madan Vs. Bolly

Caiyappa Hindley (dead) By Lrs., (2004) 12 SCC 509 referring

to this Court’s judgment in Ashwin Nanubhai Vyas (supra) had

held that heirs of complainant can continue the prosecution.

Following was held in paragraph 5:

“5. The question as to whether the heirs of the complainant can be allowed to file an application under Section 302 of the Code to continue the prosecution is no longer res integra as the same has been concluded by a decision of this Court in the case of Ashwin Nanubhai Vyas v. State of Maharashtra in which case the Court was dealing with a case under Section 495 of the Code of Criminal Procedure, 1898, which is corresponding to Section 302 of the Code. In that case, it was laid down that upon the death of the complainant, under the provisions of Section 495 of the said Code, mother of the complainant could be allowed to continue the prosecution. It was further laid down that she could make the application either herself or through a pleader. Undisputedly, in the present case, the heirs themselves have not filed the applications to continue the 12

prosecution, rather the same have been filed by their power­of­attorney holders....”

15. In view of what has been discussed above, we are of the

view that High Court did not commit any error in allowing the

legal heirs of the complainant to prosecute the Criminal Misc.

Petition before the High Court. We do not find any error in

the order of the High Court. The appeal is dismissed.

..........................J. ( A.K. SIKRI )

..........................J. NEW DELHI, ( ASHOK BHUSHAN ) November 03, 2017.