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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.

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