Ravikumar Rajnikantbhai Patel ... vs Vishal Mansukhlal Bhavani
2023 Latest Caselaw 2993 Guj

    R/CR.A/861/2023                          ORDER DATED: 18/04/2023




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/CRIMINAL APPEAL NO. 861 of 2023

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RAVIKUMAR RAJNIKANTBHAI PATEL THRO LEGAL HEIR BEENABEN
                 RAJNIKANTBHAI PATEL
                        Versus
         VISHAL MANSUKHLAL BHAVANI & 2 other(s)
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Appearance:
MR AJAY S JAGIRDAR(2688) for the Appellant(s) No. 1
 for the Opponent(s)/Respondent(s) No. 2
KARTIKKUMAR K JOSHI(8042) for the Opponent(s)/Respondent(s) No.
1
Mr. Bhargav Pandya, Addl.PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 3
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
                  Date : 18/04/2023
                    ORAL ORDER

1.0. Heard Mr. Ajay Jagirdar, learned advocate for the appellant, Mr. Joshi, learned advocate for the respondent no.1 and Mr. Bhargav Pandya, learned Additional Public Prosecutor for the respondent State.

2.0. This appeal is filed at the instance of the mother of the deceased complainant who has reported to have expired on 25.4.2018, challenging the order dated 16.1.2020 passed by the learned Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat in Criminal Case No5570 of 2018, whereby, the learned Judge has dismissed the complaint by treating it as abated in absence of original complainant.

3.0. Mr. Jagirdar, learned advocate for the appellant has

R/CR.A/861/2023 ORDER DATED: 18/04/2023

invited attention of this Court to the impugned order and has submitted that the Code of Criminal Procedure does not prescribe the proceedings to be abated upon death of the complainant. He further referred to Section 394 of the Code of Criminal Procedure which provides for abatement of appeal in case of death of the accused. He therefore, submitted that in absence of any provision of abatement in the case of death of the complainant, the learned Magistrate ought not to have disposed the complaint. He also invited attention of this Court to Section 256 of the Code of Criminal Procedure, more particularly, he referred to and relied upon sub-section (2) of Section 256 and submitted that in case of non appearance of complainant due to his death, at the most the Magistrate could have followed the procedure prescribed under sub- section (1) of Section 256. While referring to the Rojkam, he submitted that it was the present applicant who had invited attention of the Magistrate reporting about death of her son pending the proceeding before the trial Court. Learned advocate representing the original complainant had reported to the trial Court about the death of the complainant on 25.11.2019 and after recording aforesaid fact, matter was kept on 16.1.2020. He, therefore, submitted that in absence of the deceased, without giving sufficient opportunity to seek permission under Section 302 of the Code of Criminal Procedure, the Magistrate proceeded to treat the proceedings abated by the impugned order dated 16.1.2020. He, therefore, urge this Court that the appeal be allowed the impugned order be quashed and set aside.

R/CR.A/861/2023 ORDER DATED: 18/04/2023

4.0. On the other hand, Mr. Joshi, learned advocate for the original accused has objected to the present appeal. He has submitted that no application under Section 302 of the Code of Criminal Procedure has been filed seeking permission to pursue the trial Court proceeding. In such circumstances, considering the fact that the original complaint was of the year 2018 and the deceased being expired one year prior to the passing of the impugned order, the Magistrate had proceeded to pass impugned order. He, therefore, submitted that no error can be attributed in exercise of such powers by the learned Magistrate.

5.0. Mr. Jagirdar, learned advocate for the appellant has relied upon the following decisions:

A. Balasaheb K Thackeray & Ors vs. Venkat and Ors reported in (2006) 5 SCC 530.

B. State of Gujarat vs. Kailashchandra Badiprasad reported in Manu/GJ/1103/2000.

C. Helen C Pinheiro and Ors vs. Kamaxi Steel Products reported in Manu/MH/1262/1999.

D. Anil G Shah vs. J. Chittranjan Co. and ors reported in Manu/GJ/0013/1997.

E.      Yogeshkumar          Keshavlal            Kamdar       vs.       Jamnadas
Bhagwandas               Vakharia         &         ors         reported               in
Manu/GJ/0884/2022.
F.      Chand Devi Daga & ors vs. Manju K Humatani & Ors
reported in 2017 Law Suit (SC) 1103.





     R/CR.A/861/2023                                   ORDER DATED: 18/04/2023

6.0. Heard the learned advocates for the respective parties at length. The only question which falls for the consideration of this Court is whether the learned trial Court committed any error in passing the impugned order of treating the complaint as abated in absence of the original complainant, who was reported to have expired pending the trial proceeding. Undoubtedly, Section 256 of the Code of Criminal Procedure empowers the Magistrate to record the order of acquittal of the accused where the complainant represented by the pleader or the officer conducting the prosecution fails to appear. Sub- section(2) of Section 256 of the Code of Criminal Procedure provides that in case where non appearance of the complainant is due to his death, the procedure prescribed under sub-section(1) shall be followed. Considering facts which have emerged on record, the learned advocate representing the original complainant had reported to the trial Court about the death of the complainant on 25.11.2019. The matter was adjourned to 16.1.2020. In absence of any authority, the pleader representing the deceased complainant has rightly not appeared before the trial Court. The dismissal of the complaint in default in absence of the complainant can be done under Section 256 of the Code of Criminal Procedure resulting into acquittal of the accused for the offence alleged. However, in case of non appearance of the complainant due to his death, in absence of any provision prescribing for abatement for case, at the most learned Magistrate could have proceeded for recording the order of acquittal.

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7.0. At this juncture, it would be relevant to take into consideration the ratio laid down by the Hon'ble Supreme Court in the case of Chand Devi Daga & Ors (supra). The facts as emerges in the said case is where that the respondents were heirs of the deceased complainant who had filed complaint against the appellant alleging offences under Sections 420, 467, 468, 471, 120-B, 201 and 34 of the Indian Penal Code, the complaint was dismissed by the learned Magistrate by order dated 26.2.2015 holding that no prima facie case was made out against the accused. Being aggrieved by the said order of acquittal, Criminal Revision Application was preferred by the original complainant before the Additional Sessions Judge. Subsequently, the judgment dismissing the Criminal Revision Application was passed, which was challenged before the High Court. Pending the petition, the original complainant had expired and application was filed by the legal heirs of the deceased complainant to be substituted in place of petitioner - original complainant. Such application was opposed by the appellant- original accused. The High Court allowed said application and permitted the heirs of the deceased original complainant to come on record for prosecuting the petitioner. Against which, the appellant- original accused had approached the Hon'ble Supreme Court. The submission was made before the Hon'ble Supreme Court that heirs could not continue with the prosecution of the petition as no provisions under the Code prescribed the accused to be prosecuted by any other person including legal

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representative. The Hon'ble Supreme Court had also examined as regard Section 256 of the Code of Criminal Procedure. The Hon'ble Supreme Court had taken into consideration Section 302 of Code of Criminal Procedure which appears in Chapter XXIV with the heading "General provisions as to inquiries and trials". The Hon'ble Supreme Court found that Section 302 relates to permission to conduct prosecution where the Court took notice to the word "any person" appearing in Section 302(2) to conduct prosecution personally or by a pleader. Thus, the Hon'ble Supreme Court dismissed the appeal preferred by the accused thereby holding that even the legal representative of the deceased complainant can continue with the prosecution. Reliance was also made on the two Judge Bench decision in the case of Jimmy Jahangir Madan vs. Bolly Caiyappa Hindley (dead) By Lrs reported in (2014) 12 SCC

509.

8.0. In view of the aforesaid legal position, indisputably the legal representative of the deceased complainant can prosecute with the trial. In my opinion, the order impugned treating the complaint as abated is erroneous. The learned trial Court has proceeded to dispose the matter treating it as abated without giving sufficient opportunity to the appellant who is mother of the deceased complainant. At one stage, this Court had called upon the learned advocates for the respective parties with regard to the maintainability of the present appeal at the instance of the mother who has yet not been permitted by the learned Magistrate. However, as held by the Hon'ble

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Supreme Court one has to bear in mind the concept of locus standi in the background of the well settled principle of criminal law where "any person" is permitted to set law in motion which includes the legal representative of the deceased complainant as well.

9.0. For the foregoing reasons, appeal at the instance of the mother who is legal representative of the deceased complainant is entertained and the impugned order dated 16.1.2020 passed by the learned Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat in Criminal Case No5570 of 2018 is hereby quashed and set aside. The matter is restored to its original file with a liberty to the appellant -legal representative of the deceased complainant to approach the learned trial Court to seek permission by filing appropriate application to prosecute the proceeding. On such application being filed, the learned Magistrate shall consider the same on its own merits and in accordance with law. With this observation, present appeal stands allowed. Direct service is permitted.

(NISHA M. THAKORE,J) KAUSHIK J. RATHOD