Habib vs State Of U.P. And Another
2013 Latest Caselaw 4607 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 27.5.2013
 
Delivered on 26.7.2013
 
AFR
 
Court No. - 51
 
Case :- APPLICATION U/S 482 No. - 17280 of 2013
 
Applicant :- Habib
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Shishir Kumar Tiwari
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Ramesh Sinha,J.

1. Brief facts of the case are that a complaint was filed by Smt. Imrana against the applicant Habib, who was his wife and marriage between them was solemnized six years prior to the filing of the present complaint under Sections 420,406 I.P.C.. The statement of the complainant Smt. Imrana and her witnesses were recorded under Sections 200 and 202 Cr.P.C. by the learned Magistrate, who on the basis of the said evidence summoned the applicant and other accused persons for facing trial under Section 406 I.P.C. The case was fixed for recording the statement under Section 244 Cr.P.C. of the complainant Smt. Imrana. Smt. Imrana, the wife the applicant, died on 24.7.2011 during the course of trial. Thereafter, opp. party No.2 Jaheer Ahmad who is the real brother of Smt. Imrana filed an application before the C.J.M., Bulandshahr in complaint case No.9508 of 2008 on 12.9.2011 seeking permission from the Court for granting him to continue the trial against the applicant by substituting him in place of the complainant Smt. Imrana who was his sister. The said application of opp. party No.2. Jaheer Ahmad was allowed by the learned Magistrate on 12.9.2011 fixing the case for evidence.

2. When the applicant came to know about the said application dated 12.9.2011 of Jaheer Ahmad, brother of the complaint Smt. Imrana, as well as order dated 12.9.2011 passed by learned Magistrate, he appeared through his lawyer and moved exemption application for dispensing his presence and ultimately aggrieved by the order dated 12.9.2011, he filed a Criminal Revision before the Sessions Judge, Bulandshahr along with the delay condonation application under Section 5 of the Limitation Act. The lower revisional court after hearing the applicant and opp. party no.2 rejected the criminal revision filed by the applicant on the ground of limitation stating therein that the applicant had the knowledge about the order dated 12.9.2011 passed by the learned C.J.M. on 6.2.2011 as the counsel for the applicant Sri Sanjay Sharma had filed a requisition for obtaining the certified copy of the order dated 12.9.2011 by requisition No.79 on 6.2.2012, whereas the applicant has stated before the lower revisional court that he came to know about the order dated 12.9.2011 through his lawyer on 19.8.2012 which was opposed by opp. party No.2. The lower revisional court further observed that there was nine months delay in filing the said revision by the applicant which was not properly explained and no day to day explanation was given by the applicant for the said delay in filing the revision. Hence, the application under Section 5 of the Limitation Act of the applicant was rejected as the explanation given by the applicant for delay in filing the said revision was not satisfactorily explained by him. Hence, the said application Paper No.5B of the applicant was rejected vide order dated 17.1.2013.

3. Being aggrieved by the order dated 17.1.2013 passed by Additional District Judge,Court No.16, District Bulandshahr, the applicant in criminal revision No.105 of 2012 as well as order dated 12.9.2011 passed by C.J.M. in complaint case No.9508 of 2008, under Section 406 I.P.C., Police Station Kotwali City, District, Bulandshahr, the applicant filed the present 482 Cr.P.C. application before this Court.

4. No notice is required to be issued to opp. party No.2 as the question involved in the present petition is legal one. Hence, this Court with assistance by the learned AGA proceed to hear the matter.

5. Heard Sri Apoorva Hajela, learned counsel for the applicant and Sri Nikhil Chaturvedi, learned AGA for the State.

6. It has been contended by the learned counsel for the applicant that the marriage between the applicant and Smt. Imrana was solemnized six years prior to the filing of the present complaint and Smt. Imrana died during the course of trial, hence, her evidence under Section 244 Cr.P.C. could not be recorded by the trial Court on account of the death of the complainant, therefore, the present complaint filed by her is liable to be dismissed and the applicant should have been acquitted by the trial Court in view of the provisions contained under Section 256(2) Cr.P.C. He further argued that after the death of the complainant Smt. Imrana, her brother Jaheer Ahmad had no locus to file the application seeking permission to continue the trial against the applicant and the learned trial Court allowed the said application of opp. party No.2 Jaheer Ahmad granting him permission to continue the trial against the applicant in place of the complainant Smt. Imrana, is against the established proposition of law. Hence, the impugned order passed by the learned Magistrate on 12.9.2011 should be set aside. He further pointed out that aggrieved by the order dated 12.9.2011, the applicant preferred a criminal revision before the Lower Revisional Court and the same was dismissed by the Additional Sessions Judge, on the ground that the said revision was time barred and the delay in filing the said revision was not satisfactorily explained by the applicant. He further submitted that the order passed by the lower revisional court dismissing the application under Section 5 of the Limitation Act filed in support of the criminal revision was illegally rejected by the lower revisional court,hence, the same should also be set aside.

7. He further urged that the Jaheer Ahmad , the brother of the complainant Smt. Imrana has no right to be substituted in place of the complainant as the complaint was personal to the complainant which could be compounded without the sanction of the Court. He has placed reliance on a judgment reported in AIR 1919 Lahore 409 in the case of Labhu and others Vs. Emperor, in which it was held that 'on the death of a complainant during the pendency of a trial, the proceedings abate if the offence complained of was personal to the complainant, that is if it was one which could be compounded without the sanction of the Court. In other cases, the proceedings do not abate.

8. He has further placed reliance on a judgment of the High Court of Karnatak in the case of Subbaana Hegde Vs. Dyavappa Gowda reported in 1980 Law Suit (Kar) 28 in which the Karnataka High Court acquitted the accused on the death of the complainant in view of the provision of Section 256 Cr.P.C.

9. In view of the said judgment, the learned counsel for the applicant prayed that the impugned order passed by the learned Magistrate as well as Lower Revisional Court be set aside by this Court.

10. Per contra, Sri Nikhil Chaturvedi, learned AGA has submitted that the impugned order dated 12.9.2011 passed by learned Magistrate as well as order passed by Lower Revisional Court is in consonance with law and does not require any interference by this court. He submitted that Smt. Imrana, who was the wife of the applicant, had filed the complaint against the applicant demanding back Stridhan from him, has died during the pendency of the trial when her statement under Section 244 Cr.P.C. was to be recorded and the opp. party No.2 Jaheer Ahmad being the brother of the complainant had a right to move an application before the Court below for seeking permission to continue the prosecution of the applicant in place of his sister Smt. Imrana who died on 24.7.2011 and the learned Magistrate has rightly granted him permission for prosecuting the applicant in view of Section 302 Cr.P.C.

11. In support of his contention, learned AGA has placed reliance on a Full Bench decision of the Apex Court reported in AIR 1967 SC983, Ashwin Nanubhai Vyas Vs. State of Maharashtra and another, in which it was held that though the Court cannot substitute a new complainant, it has power under Section 495 Cr.P.C (new Code under Section 302 Cr.P.C.) to authorise conduct of prosecution by any person.

12. He has further place reliance of a judgment of the Apex Court reported in 2006(55) ACC 1016, SC, Balasahab K. Thackeray and another Vs. Venkat @ Babru and another in which it was held that 'to bring in application under Section 302 of the Code, permission to conduct prosecution has to be obtained from the Magistrate enquiring 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'.

13. He has also placed reliance of a judgment of the Apex Court reported in 2004(12) SCC 509, Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley (Dead) by Lrs., in which it was was held that under Section 302 Cr.P.C., a party can make an application himself to continue the prosecution or the same can be made by a pleader.

14. In view of the said judgment, the learned AGA submitted that the impugned order passed by the learned Magistrate granting permission to opp. party No.2 to continue the prosecution of the applicant is in consonance with law which does not call for any interference by this court in the present 482 Cr.P.C. and prayed that the present 482 Cr.P.C. application be dismissed.

15. Considered the submissions advanced by learned counsel for the parties and perused the material available on record.

16. From perusal of the record, it is apparent that the complainant Smt. Imrana who is the wife of the applicant, has admittedly died on 24.7.2011. Her evidence under Section 244 Cr.P.C. was to be recorded by the Magistrate,but during the pendency of the trial, she died hence the same could not be recorded. Opp. party No.2, Jaheer Ahmad who is real brother of the complainant Smt. Imrana moved an application before the learned Magistrate concerned for seeking permission to prosecute the applicant and continue with the trial against him under Section 406 I.P.C. which was allowed by the Magistrate concerned by the impugned order dated 12.9.2011. From perusal of the said application filed by opp. party No.2 seeking permission to prosecute the applicant, it further transpires that after the untimely death of Smt. Imrana her father was not keeping well, hence, opp. party No.2 being the brother of the complaint Smt. Imrana had sought the permission for continuing the prosecution of the applicant.

17. The legal issues which have come up before this Court for adjudication in the present 482 Cr.P.C. application filed by the applicant are :-

(I) whether on the death of the complainant, the complaint filed by the complainant is liable to be dismissed by the Magistrate under Section 256(2) Cr.P.C. and the accused is liable to be acquitted of the charge ?

(ii) whether it is mandatory for the Magistrate concerned to pass orders for acquitting the accused ?

18. In this regard, perusal of the provision of Section 256 Cr.P.C. is necessary which quoted here-in-below:-

" 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 his attendance and proceed with the case.

(2) The provisions of sub- section (1) shall, so far as may be, apply also to cases where the non- appearance of the complainant is due to his death."

19. The Code of Criminal Procedure provides that only in the death of the accused or the appellant but does not expressly provides for death of a complainant. The Code also does not provides for abatement of enquiries or trial although it provides for abatement of appeals on the death of the accused in appeals under Section 411A(2) and 417 Cr.P.C. (old Code) and on the death of appellant in all appeals except the appeal from a sentence or fine. Therefore, what happens on the death of the complainant, in a case started on complaint has to be inferred generally from the provision of the Code.

20. In this regard the judgment of the Apex Court in the case of Ashwin Nanubhai Vyas Vs. State of Maharashtra and another (supra) is necessary to be taken into account particularly paragraph nos. 3 & 4 which are quoted here-in-below:-

"3. The complaint of Kusum was filed to remove the bar contained in this section although for the offence under s. 417 no such bar existed. The offences under Sections 493 (a man by deceit causing a woman not lawfully married to him to believe that she is lawfully married to him and to cohabit with him in that belief) and 496 (a person with fraudulent intention going through the ceremony of being married, knowing that he is not thereby lawfully married) are non-cognizable, not compoundable and exclusively triable by Court of Session. They are serious offences, being punishable with imprisonment extending to 10 and 7 years respectively. The Presidency Magistrate, was not trying the case but only inquiring into it with a view to its committal to the Court of Session if the facts justified a committal. During this inquiry Kusum died. We have to determine what is the effect of the death of a complainant on an inquiry under Chapter XVIII in respect of offences requiring a complaint by the person aggrieved, after the complaint has been filed.

4. Mr. Keswani for Vyas, in support of the abatement of the case, relied upon the analogy of s. 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 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 Chapter XXI."

21. Similarly, another judgment of the Apex Court in the case of Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley (Dead) by Lrs., ( Supra) relied upon the judgment of Nanubhai Vyas Vs. State of Maharashtra and another and had permitted that any person is entitled to seek a permission under Section 302 Cr.P.C. to continue the prosecution by moving an application before the learned Magistrate. In this regard, paragraph No.10 of the said judgement is quoted here-in-below:

"10. In the present case, neither heirs of the complainant filed petition under Section 302 of the Code to continue the prosecution nor any permission was sought by them from the competent court that they should be allowed to continue the prosecution through their power of attorney holders, rather the prayer was made by the power of attorney holders, which is not permissible under law. This being the position, we are of the view that the trial court was not justified in allowing the petitions under Section 302 of the Code and the High Court has committed an error in confirming the said order which is liable to be set aside and petitions under Section 302 of the Code are fit to be dismissed giving liberty to the heirs either to make application themselves before the court concerned to continue the prosecution or apply to the court to grant permission to them to authorize the power of attorney holders to continue the prosecution on their behalf."

22. In another judgment of the Apex Court in the case of Balasahab K. Thackeray and another Vs. Venkat @ Babru (supra) on the present issue paragraphs no. 5,6,7 & 8 are necessary to be taken into account, which are quoted hereinbelow:

" 5. 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 Vs. State of Maharashtra and another AIR 1967 SC 983, with reference to section 495 of the code of criminal procedure, 1898 (hereinafter refereed 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 Jahanagir Madan Vs. Bolly Cariyappa Hindley (dead) by L.Rs. 2004 (12) SCC 509, after referring to Ashwani's case (supra), 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.

6. Section 302 of the Code read 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."

7. To bring in application of section 302 of the Code, permission to conduct prosecution has to be obtained from the Magistrate inquiring into or trying a case. The Magistrate is empowered to permit 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 a Assistant Public Prosecutor shall be entitled to do so without such permission.

8.Above being the position, if any permission is sought for by the legal heirs of the deceased complainant to 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. "

23. From perusal of the aforesaid judgments of the Apex Court, it is now well settled that on the death of the complainant, under section 256 (2) Cr.P.C. cannot ipso-facto bring about the termination of the criminal proceeding and in that case the learned Magistrate is authorized to exercise his power under Section 302 Cr.P.C. by allowing any person or prosecution agency for conducting of the criminal case merely on the death of the complainant, the complaint filed by him cannot be dismissed nor the accused acquitted or discharged under Section 256 or 258 Cr.P.C.

24. In view of the foregoing discussions, the submissions made by the learned counsel for the applicant does not find any force, hence, impugned orders passed by courts below do not call for any interference by this Court in exercise of its inherent power under Section 482 Cr.P.C. The present 482 Cr.P.C. application lacks merit and is accordingly dismissed.

Dated: 26.07.2013

NS.