Skip to main content

Heirs of complainant can continue the prosecution

In Chand Devi Daga and Ors. Vs. Manju K. Humatani and Ors, appeal was filed against the judgment of the High Court allowing an application filed by the legal representatives of Petitioner. 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 of Indian Penal Code, 1860 (IPC). The original complainant died during the pendency of the Criminal Miscellaneous Petition before the High Court. High Court permitted the legal representatives of Chandra Narayan Das to come on record for prosecuting the criminal miscellaneous petition.

Section 256 of Code of Criminal Procedure, 1973 (CrPC) is contained in Chapter XX with the heading "Trial of summons-cases by Magistrates". Analogous provision to Section 256 of CrPC was contained in Section 247 of CrPC, 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. Sub-section (1) of Section 256 of CrPC contains the above proviso in the similar manner. Thus, even in case of trial of summons-case 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) of CrPC, the Magistrate can proceed with the complaint. 

The present is a case where offence was alleged under Sections 420, 467, 468, 471, 120B and 201 read with 34 of IPC for which procedure for trial of summons-case was not applicable and there is no provision in Chapter XIX "Trial of warrant-cases by Magistrates" containing a provision that in the event of death of complainant the complaint is to be rejected. The Magistrate under Section 249 of CrPC has power to 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. 

In this context a reference is made to judgment of this Court in Ashwin Nanubhai Vyas v. State of Maharashtra. In the said case this Court had occasion to consider the provisions of Code of Criminal Procedure, 1898. It was held therein 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 CrPC to continue the prosecution. 

Two Judge Bench in Jimmy Jahangir Madan v. Bolly Caiyappa Hindley (dead) By L.Rs., referring to this Court's judgment in Ashwin Nanubhai Vyas had held that, heirs of complainant can continue the prosecution. High Court did not commit any error in allowing the legal heirs of the complainant to prosecute the Criminal Miscellaneous Petition before the High Court. The appeal is dismissed.

Comments

Post a Comment

Most viewed this month

Merits and the terms of contract are irrelevant for invoking of the bank guarantees

In Sabarkantha Annuity Pvt. Ltd. Vs. NHAI and Ors, the Petitioner filed before the Delhi High Court  petition under Section 9 of the Arbitration and Conciliation (Amendment) Act, 2015 with a prayer that, Respondents be restrained from acting upon the letter dated 15th September, 2017 or from invoking the Bid securities of the Petitioner to the tune of Rs. 10.93 Crores and also restraining the banks from honouring the invocation of said bank guarantees on behalf of Respondent No. 1 acting in terms of letter dated 3rd November, 2007. Petitioner has relied upon Clauses Nos. 9.1.1, 9.1.2 and 4.3 of the agreement dated 28th April, 2017 entered into between the parties to say the claim for damages since is not a claim for a sum presently due and payable and the respondent would be entitled to damages only on proof of loss, per Clause 4.3 of the agreement and hence is not entitle to the entire sum of bid security.  The Court found that Clause No. 9.1.2 speaks of an exclusiv...
Post a Comment
Read more

Right of pre-emption under West Bengal Land Reform Act

In Rabindra Nath Kundu & Anr vs Sudhir Hira, Bijoy Krishna Hira being the owner in the suit plot, gifted to Santosh Kumar Hira demarcated 11 decimals of land vide deed of gift dated 27.4.2004 and the latter sold 9 decimals out of 11 decimals of land to Sudhir Hira the preemptor/opposite party no. 1 and well demarcated 1.65 decimals of land in the said plot along with several other plots were sold, transferred and conveyed to the preemptees/petitioners herein by a registered deed of sale dated 10.8.2010, the subject matter of preemption. It is argued on behalf of the preemptees that  the present opposite party no. 1/preemptor Sudhir Hira has no relationship of co-sharership with Santosh Kumar Hira opposite party no. 2 as the demarcated portion of land has been purchased. It is settled principle of law that partial preemption is not permissible and this was what the view adopted by this Hon'ble High Court is Surendra Vs. Abhimannu reported in (1980) 1 Cal LJ 135 whe...
Post a Comment
Read more

CBI has no jurisdiction to probe affairs of medical college:HC

The Madras High Court has quashed charges against administrators of a medical college and dismissed CBI's petitions opposing discharge of officials of two other medical colleges, saying the investigation agency, or any other external agency for that matter, has no jurisdiction to probe the affairs of a medical college. Quashing the charges against the administrators of a medical college and dismissing CBI's petitions opposing the discharge of officials of two other medical colleges, Justice Aruna Jagadeesan said "contravention of rules and regulations may be an offence against the statute but is not a crime. There is no room or jurisdiction for any external agency to investigate the affairs of any medical institution coming within the purview of the Medical Council of India." In identical set of orders, all delivered on August 6, Justice Jagadeesan said "the shortfall in faculties and submissions of fake/forged documents would only disentitle the institution...
Post a Comment
Read more