Bombay High Court
Sharda vs M/S. S And Sons Agro Industries on 17 June, 2022
Bench: R. G. Avachat
ALP.14.2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY
PRIVATE PARTY NO.14 OF 2022
Sharda Engineer and Construction,
Through its Proprietor,
Rohidas s/o. Namdeo Khatate
Through His Legal Heirs,
1. Sharda w/o. Rohidas Khatate and ors. ..Applicants
Vs.
M/s. S and Sons Agro Industries,
Through its Partner,
Vikram s/o. Shantaram Kanwade
and ors. ..Respondents
----
Mr.K.N.Shermale, Advocate for applicants
Mr.Z.H.Farooqui, Advocate for respondent no.1 (appointed)
Mr.S.W.Munde, APP for respondent no.2
----
CORAM : R.G. AVACHAT, J.
DATE : JUNE 17, 2022
ORDER :-
Heard.
2. For the reasons given in the application and on hearing
learned counsel appointed to represent the respondent herein, leave to
appeal is granted and the appeal is taken up for final hearing at
admission stage.
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3. The challenge in the appeal is to orders rejecting the
applications - Exh.29 and Exh.1 moved by legal representatives of
the original complainant in Summary Criminal Case No.1006 of
2018.
4. It was a case instituted under Section 138 of the
Negotiable Instruments Act. The complainant therein was proprietor
of M/s. Sharda Engineer and Construction. The complainant passed
away on 22.04.2021 due to Corona virus. Learned counsel for the
complainant moved an application (Exh.29) on 07.01.2022, asking
for time to bring on record legal representatives of the deceased
complainant. Said application was rejected on the ground that the
time limit was over and beyond the period of limitation, time cannot
be extended. Same day, learned Addl. Chief Judicial Magistrate
passed order on application (Exh.1) in Summary Criminal Case
No.1006 of 2018. The order is as under :-
" Today Advocate for the complainant (Exh.21)
submitted application for extension of time on the
ground that the complainant is died on 22/04/2021 and
time may be granted to bring on record his legal heirs.
However, already period of more than 8 months has
been passed since the death of the complainant. Thus,
period of limitation to bring the legal heirs on record is
over. Hence, the complaint is already abated, but the
formal order was not passed. Therefore, the application
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is rejected. Now, the complaint is abated. Bail bonds
of the accused stand cancelled. Send the case papers to
the record room."
5. Mr.Farooqui, learned counsel for the respondent
(appointed), would submit that there is no provision in the Code of
Criminal Procedure (Cr.P.C.) to bring on record legal representatives
of the deceased complainant. It was a Summary Criminal Case.
Section 256 of Cr.P.C. would come into play. Learned Magistrate
was, therefore, required to acquit the accused in the case wherein
the complainant passed away.
Learned counsel for the respondent may be right in
making above submission relying on Section 256 of the Cr.P.C.
6. Learned counsel for the applicants/appellants has relied
on Apex Court judgment in the case of Jimmy Jahangir Madan Vs.
Bolly Cariyappa Hindley (dead) By L.Rs., (2004)12 SCC 509. In
paragraphs 4 and 5 of the judgment, the Apex Court has observed
thus:-
4. The question that arises for consideration is as to
whether an application under Section 302 of the Code to
continue the prosecution can be filed by power of attorney
holders of heirs of the complainant. In order to appreciate
the point, it would be useful to refer to Section 302 of the
Code which runs thus:-
4 ALP.14.2022
"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."
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, (1967)1 SCR 807, 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 prosecution, rather the same have been filed by their
power of attorney holders. Thus, the question that arises
would be as to whether power of attorney holder can be
treated to be pleader of heirs of the complainant. `Pleader'
is defined in Section 2(q) of the Code which reads thus:-
"2(q) 'Pleader', when used with reference to any
proceeding in any Court, means a person
authorized by or under any law for the time
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being in force, to practise in such Court, and
includes any other person appointed with the
permission of the Court to act in such
proceeding;"
7. In view of the above, the appeal is allowed. The orders
impugned herein are set aside. The trial Court shall permit the
applicants/appellants herein to come on record to pursue Summary
Criminal Case No.1006 of 2018. The trial Court, then, shall issue
summons to the respondent-accused for his appearance and then,
proceed to hold trial in accordance with law.
[R.G. AVACHAT, J.]
KBP
