Allahabad High Court
Sri Mukesh Sharma And 4 Others vs State Of U.P. And Another on 10 May, 2024
Author: Subhash Chandra Sharma
Bench: Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:84625
Court No. - 81
Case :- APPLICATION U/S 378 No. - 114 of 2024
Applicant :- Sri Mukesh Sharma And 4 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Gaurav Sharma
Counsel for Opposite Party :- G.A.,Kamlesh Kumar Dwivedi
Hon'ble Subhash Chandra Sharma,J.
Heard Sri Gaurav Sharma, learned counsel for applicants, Sri K.K. Dwivedi, learned counsel for opposite party as well as learned A.G.A. and perused the record.
Leave granted.
The present application has been filed by the applicants with prayer to set aside the order dated 01.06.2022 passed by learned Judicial Magistrate/Additional Civil Judge (J.D.) Court no. 1, Agra in Complaint Case No. 113 of 2012 (new No. 3684 of 2014), under Section 138 N.I. Act, Police Station Shahganj, District Agra.
It is submitted by learned counsel for the applicants that in this case, complaint Case no. 112 of 2012 (New number 3682 of 2014) (Chandra Bhan Sharma Vs. B.D. Agrawal), under Section 138 N.I. Act, Police Station Shahganj, District Agra was pending before the learned court. During proceedings of the case complainant Chandrabhan died, thereafter an application was moved by Mukesh Sharma the son of the deceased (complainant) on 2.5.2022 for his impleadment to proceed with the complaint. This application remained pending and without passing any order on this application on 1.6.2022 the impugned order was passed by which complaint was dismissed on account of death of complainant on 21.2.2019 and accused/opposite party was acquitted. Further submitted that the order passed by learned trial court is erroneous and cannot be said to be in conformity with law. First the learned court had to decide the impleadment application moved by the heir of the complainant and then to pass any further order but the application for impleadment being pending the order of dismissal cannot be said to be lawful therefore, it require interference by this Court and liable to be set aside. Learned counsel for the applicant relied his argument on the judgment passed by Hon'ble Supreme Court in Chand Devi Daga Vs. Manju K. Humatani, AIR 2017 Supreme Court, 5126 in which it was held that 'the order allowing legal heir of complainant to prosecute before the High Court not erroneous.'
Learned counsel for opposite party as well as learned A.G.A. opposed the prayer as aforesaid but could not dispute the legal position as aforesaid, the fact that impleadment application remained pending before the learned court and order in question was passed for acquittal with dismissal of complaint.
On considering the facts and circumstances of the case, submissions made by learned counsel for both the parties as well as learned A.G.A. perusal of record and the law laid down by the Hon'ble Supreme Court in aforesaid case and the provisions as contained under Section 256 and 302 Cr.P.C. it is settled that heir of the complainant may continue the proceedings after death of the complainant. In this way, since the heir of the complainant moved an application for impleadment before the learned court on 2.5.2022 which remained pending and without disposing that application the order in question was passed by the learned trial court on 1.6.2022 while dismissing the complaint and acquitting the accused/opposite party which cannot be said to be lawful, therefore, not sustainable in the eyes of law. As a result it requires interference by this Court.
Accordingly the order dated 1.6.2022 is hereby set aside and application/appeal is allowed at the admission stage.
Matter is remanded back to the learned court concerned with direction to implead the applicant as heir of the complainant and then to proceed with the case in accordance with law.
Order Date :- 10.5.2024
Anurag Singh
