1
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
Das was a lease holder of a shop situated in the Civic Centre,
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.
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
Das was a lease holder of a shop situated in the Civic Centre,
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.
