In a key decision, the Orissa High Court has held that legal heirs can be substituted upon death of the original complainant in a criminal case and they can pursue the case further on his/ her behalf against the accused/ other legal heirs.
The single-judge bench fof Justice Sashikanta Mishra observed referred to M/S Jk International Vs. State, Govt of Nct of Delhi & Ors [2001] INSC 109 (23 February 2001), 2001 Latest Caselaw 109 SC and stated that although there exists no specific provision, the statutory intent of CrPC is not to foreclose the right of a person to continue with the prosecution upon death of the complainant.
"In other words, it is impliedly acknowledged that the victim of a crime may die but the crime committed against him does not. Nor does the guilt of the offender get washed away only because the victim is no more. On the contrary, the offender would still remain liable to be prosecuted for his deeds and punished, if found guilty", the Court added.
In the present case, the complainant died and subsequently, his eldest son filed a petition seeking to be substituted as a complainant expressing his desire to contest the case. The petition for substitution was opposed by the accused persons, who took the plea that they are eligible to be discharged upon death of the complainant.
However the Trial Court by relying on the decision of the Apex Court in the case of Ashwin Nanubhai Vyas Vs. State of Maharashtra & ANR, 1966 Latest Caselaw 213 SC, allowed the petition for substitution by substituting the deceased complainant.
Aggrieved the accused approched the High Court with contention that unlike a civil proceeding, the Code of Criminal Procedure does not recognize substitution of a deceased complainant.
His Counsel, referring to Ashwin Nanubhai Vyas contended that the CrPC provides only for dismissal of a complaint upon death of an accused but does not expressly provide for continuance of the complaint thereafter and therefore what happens on the death of the complainant, in a case started on a complaint has to be inferred generally from the provisions of the Code.
He averred that since the CrPC provides that in the absence of the complainant, the accused must be either acquitted or discharged, the same principle must be applied in the case of death of a complainant.
He argued that alternatively, even after assuming that a legal heir can be substituted as the complainant upon death of the original complainant, the same would be permissible only against person or persons other than the legal heirs.
The Counsel for respondent however referring to the decision of the Apex Court in Chand Devi Daga & Ors. Vs. Manju K. Humatani & Ors., 2017 Latest Caselaw 773 SC argued that the provision under Section 249 of Cr.P.C. which provides for discharge of the accused in the absence of the complainant is applicable only when the offence can be lawfully compounded or is non-cognizable but not in respect of non-compoundable offences such as the ones Section 426/506 IPC.
He averred that since the CrPC is silent as to what would happen in case of death of a complainant in a warrant case, it means the provision under Section 249 Cr.P.C. cannot be made applicable to such cases.
Therefore, he argued that since the original complainant had filed the complaint against the accused persons, the opposite party being the legal heir has got every right to seek continuance of the proceeding upon the death of his father as otherwise, the accused persons would be allowed to go scot-free.
The Court stated that Law is now fairly well settled that the legal heirs of the deceased complainant can be substituted in his place.
It opined that the procedure prescribed under Chapter XIX would be applicable to the case at hand and therefore, there is no direct provision akin to the one under section 256 of CrPC. It mentioned Shri Balasaheb K. Thackeray & Anr Vs. Shri Venkat @ Babru & Anr, 2006 Latest Caselaw 377 SC wherein it was held that was held that section 302 of the code can be invoked 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 of the magistrate.
It stated that following the above precedent, the Court in Chand Devi Daga & Ors held that taking assistance of Section 302 of the code, the legal heirs can continue the prosecution upon death of the original complainant.
On question of can one legal heir maintain the complaint against another legal heir, the Court notably opined that if the original complainant could maintain an action against his son, who is his legal heir, there is no reason as to why a person cannot maintain the complaint against his brother and other relations.
"Any action which seeks to foreclose the right of a person to prosecute a legitimate complaint against his legal heirs and relations cannot be approved. Viewed differently, the spirit of the decisions referred above is to the effect that the right to prosecute subsists even after death of the original complainant", it held.
CASE TITLE:Sanjit Kumar Mishra & Others .VS Ranjit Mishra
CASE DETAILS: CRLREV No. 579 of 2011
CORAM: Justice Sashikanta Mishra
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