Om Saran Etc. vs Satya Dhawan
1990 Latest Caselaw 85 Del

JUDGMENT

P.K. Bahri, J.

(1) The short question which arises for decision in this criminal revision is whether the petitioners who are facing trial for an offence punishable u/S. 448 read with S. 34 of the I.P.C, ought to have been acquitted or not on the death of complainant Mr M.R. Dhawan who admittedly died on 20.7.88. ?

(2) It is apparent from the allegations made in the complaint as well as the statements recorded in support of the complaint as reproduced in the Cr. R. petition itself that M.R. Dhawan and his wife were the aggrieved persons at the time the house trespass was committed by the petitioners in as much as complainant and his wife were manhandled by the petitioners while committing the house trespass.

(3) As a very short question is involved, I have heard arguments in detail and proceed to dispose of this revision finally.

(4) The offence u/S. 448, Indian Penal Code . is to be tried as a summons case and S. 256 of the Code is which runs : "Non-Appearance or death of complainant- (1) If 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."

(5) The learned counsel for the petitioners has vehemently argued that since the complainant had died, the Magistrate had no option but to acquit the petitioners by virtue of S. 256(1) of the Code and the learned Magistrate was wrong in adjourning the matter and then allowing the complainant's wife to be brought on record so that she could pursue the complaint as a complainant. Counsel for petitioners has cited Nanilal v. Rabin Ghosh, 1964(1) Cr. L.J. 186, wherein Calcutta High Court while interpreting the provisions of the Old Code of Criminal Procedure, held that a person who had been examined as complainant u/S. 200 is the only person who can be treated as complainant and no other person can be deemed to be a complainant however much he may be interesced in the prosecution of the accused or in the property which is the subject-matter of the alleged offence and if the complainant dies before presentation of the appeal, no other person, not even his legal heirs may have that right and in such a case the right to present an appeal from the order of acquittal shall be only of the State Government u/S. 417(1) of the Code. In the Old Code there was no provision like S. 256(2) of the present Code. So, this judgment is of no help in deciding the point arising before me.

(6) The learned counsel for the petitioners has then referred to Subbanna Hedge v. Dyavappa Godwa, l980 Cr.L.J. 1405, wherein a single Bench of Karnataka High Court while construing the provisions of Sections 256 of the Code laid down that on the death of the complainant no other person can be deemed to be a complainant however interested he may be in the case. In the cited case, the accused was facing trial for offences punishable u/Ss. 143, 147, 149, 324, 326, 342, and S. 506, Indian Penal Code . which offences obviously were with regard to the person of the complainant in which family members of the complainant had no interest. The learned Judge has not considered the cases where the Mgte. has to exercise his discretion for not acquitting the accused in view of provisions of S. 256, particularly where the Magistrate is to adjourn the matter instead of acquitting the accused. The question which arises for consideration is as to what arc those reasons which could weigh with the Magistrate for him not to pass the order of acquittal of the accused and to adjourn the hearing of the case to some other day. If there was no discretion vested in the Magistrate the underlined words would become nugatory. The Legislature, in my opinion, vested the Magistrate with discretion to decide keeping in view the facts of each case as to whether on non-appearance of the complainant or on the death of the complainant in a summons case the accused should be acquitted or not and if he, for good reasons thinks it proper, the Magistrate can proceed with the complaint and adjourn the matter although the complainant is absent or the complainant has died. The Magistrate is not to act arbitrarily but has to act in a judicial manner for exercising his discretion. Where the offences, which are friable as summons cases, are peculiar and personal to the complainant, obviously the Magistrate would have no discretion but to acquit the accused if the complainant is absent or has died but where offences, may be friable as summons case, were not personal to the complainant and the complainant was not the only aggrieved person then obviously the Magistrate can exercise his discretion and instead of acquitting the accused he can adjourn the hearing of the case and pass necessary orders for hearing of the complaint, may be at the behest of the real person who was aggrieved. In the present case not only the complainant but his wife also were the aggrieved persons and the wife was equally a complainant for prosecuting the petitioners for the offences committed by them qua her and thus, the Magistrate, in my opinion, rightly exercised his discretion in allowing the complainant's wife to continue with the complaint and rightly adjourned the hearing of the case for that purpose.

(7) The learned counsel for the petitioners has argued that proviso to S. 256(1) of the Code is the only exception which could be taken resort to and admittedly this proviso is not applicable to the facts of the present case: The Magistrate had no option but to acquit the petitioners. There is a fallacy in this argument. The proviso enables the Magistrate to continue with the case on a particular day when is may dispense with the personal attendance of the complainant holding that his personal attendance is not necessary. So, this proviso docs not control the exercise of discretion of the Magistrate in the facts of a particular case as contemplated by the provisions of S. 256(1) of the Code. particularly the underlined words used in the Section indicated above.

(8) In Cr. R. No. 293/80, Dharm Yash Dev v. Sanjay Gandhi, 1981. Raj. Lr (N) 43 by M.L. Jain, J., same principle has been laid down. In that case the accused was facing trial in a complaint case for offences punishable u/S. 500, Indian Penal Code . and after the death of the complainant his wife was allowed to continue with the complaint.

(9) The learned counsel for the petitioners has argued that reliance placed in that case on a judgment of the Supreme Court in the case of Ashwin Nanubhai v. State Air 1967 S.C. 984, is not warranted in as much as the Supreme Court was dealing with a case of committal friable by a Sessions Court and the Supreme Court in that judgment clearly held that there being no provision like S. 247 and S. 259 of the Old Code vis-a-vis the provisions pertaining to cases friable by Sessions Court, on the death of the complainant, the committal proceedings cannot come to an end. It is true that the judgment of the Supreme Court was dealing with a different point but the learned Judge deciding the case of Dharm Yash Devs(pura) has based his conclusions on the ground that the Magistrate has discretion u/S. 256 of the Code not to acquit the accused on the death of the complainant and allow the aggrieved person other than the deceased complainant to continue with the complaint. I agree with the said law laid down in this judgment.