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2024 (5) TMI 614
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....n include his wife and three other children (in all five legal heirs). 3. The Supreme Court in Ashwin Nanubhai Vyas v. State of Maharashtra, on 10 October, 1996, (AIR 1967 SC 983), held that:- "The Code of Criminal Procedure provides only for the death of an accused or an appellant but does not expressly provide for the death of a complainant. The Code also does not provide for the abatement of inquiries and trials although it provides for the abatement of appeals on the death of the accused, in respect of appeals under ss. 411 A(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 Code by Chapter XV, which is to be found in Part VI (Proceedings in Prosecutions), provides for the jurisdiction of a criminal court in inquiries and trials. This Chapter is divided into two Parts-A (Place of Inquiry of Trial) and B (Conditions requisite for initiation of Proceedings). Part B consists of as. 190 to 199B. Section 190 lays down, inter alia, that any Presidency Magistrate may take cogniz....
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....hey provide for special situations. Inquiries and trials before the court are of several kinds. Section 2.47 occurs in Chapter XX which deals with the trial of summons cases by a Magistrate and s. 259 in Chapter XXI which deals with trial of warrant cases before Magistrates. Under the former, if summon 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, s. 247 neither applies nor can it furnish any valid analogy. Similarly, s. 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 s. 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 Cha....
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....n unless a complaint was made in the manner provided in the section, the court cannot proceed with the inquiry unless the same condition continues to exist. In other words, because the section insists on a complaint of a person aggrieved, Mr. Keswani contends that continued presence of the person aggrieved throughout the trial is also necessary to keep the court invested with its jurisdiction except in the circumstances mentioned in the proviso and summarised above. We do not agree. The section creates a bar which has to be removed before cognizance is taken. Once the bar is removed, because the proper person has filed a complaint, the section works itself out. If any other restriction was also there the Code would have said so. Not having said so, one must treat the section as fulfilled and worked out. There is nothing in the Code or in Chapter XVIII which says what, if any, consequence would follow if the complainant remains absent at any subsequent hearing after filing the complaint. In this respect Chapter XVIII is distinctly dissimilar to the Chapters dealing with the trial of summons and warrant cases where it is specifically provided what consequence follows on the absence o....
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.... what is to happen, the power of the court to substitute another prosecution agency (subject to such restrictions as may be found) under s. 495 of the Code of Criminal Procedure is always available. Reference may, however, be made to the following: Emperor v. Nurmohammed, (5) Emperor v. Mauj Din, (6) U Tin Maung v. King, (7) Mohammed Azam v. Emperor (8) and In re Ramasamier(9). None of the cases cited either for the one side or the other directly arose under s. 198 first part in a committal proceeding. The later view is distinctly in favour of allowing the prosecution to continue except in those cases where the Code it sled says that on the absence of the complainant the accused must be either acquitted or discharged. The present is not one of those cases and in our judgment the Presidency Magistrate was right in proceeding with the inquiry by allowing the mother to carry on the prosecution, and under s. 495 the mother may continue the prosecution herself or through a pleader. We see no reason why we should be astute to find a lacunas in the procedural law by which the trial of such important cases would be stultified by the death of a complainant when all that the s. 198 requires ....
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....o continue prosecution, the same shall be considered in its perspective by the Court dealing with the matter. It is brought to the notice that by order dated 13.10.2003 further proceedings before the Magistrate are stayed. In that background, Mr. Adsure submitted that the application shall be filed before this Court. If and when any application is filed the same shall be dealt with appropriately. Ordered accordingly." 5. The Supreme Court in Rashida Kamaluddin Syed & Anr. v. Shaikh Saheblal Mardan (Dead) through LRs. & Anr., Appeal (Crl.) 283 of 2007, on 2nd March, 2007, held that:- "In our opinion, the submission has no force and cannot be accepted. What was considered by this Court in Ashwin Nanubhai was whether prosecution could be continued by any person other than the complainant in view of bar of taking of cognizance under Section 198 of the Code. Considering the scheme and Sections 198 and 495 of the Code, this Court held that such permission could be granted and a person other than the complainant could be allowed to prosecute the complainant. In the instance case, there is no such bar. Moreover, necessary permission was granted in the year 1997 and we find no infirmity ....