The Kerala High Court has held that even non-legal heirs of a complainant can be permitted to continue prosecuting a case after the complainant’s death, even if the legal heirs are alive but choose not to pursue the matter.
Dr. Justice Kauser Edappagath, interpreting Section 302 of the Code of Criminal Procedure, observed that the provision empowers a Magistrate to allow “any person” to conduct the prosecution. The phrase, the Court noted, cannot be restricted to legal heirs alone. “Even a non-legal heir of a complainant in a complaint case can be permitted to continue the prosecution on the death of the complainant, although his legal heirs are alive and have not come forward to prosecute the case. However, it is the discretion of the Court to grant such permission, taking into account the facts and circumstances of each case and the interest of the person seeking to prosecute,” the judgment stated.
The case arose out of C.C. No. 787 of 2011 pending before the Judicial Magistrate of First Class–I, Attingal. The original complainant had passed away during the proceedings. His sister, the second respondent, filed a petition under Section 302 CrPC to continue the prosecution. The petitioners objected, arguing that since the complainant’s daughter was alive but had not come forward, the sister could not prosecute the case. The Magistrate allowed the application, prompting the petitioners to challenge the order before the High Court.
Rejecting the challenge, the Court observed that the Code of Criminal Procedure does not specifically provide for substitution of a deceased complainant by legal heirs or representatives. Instead, Section 302 grants discretion to the Magistrate to permit any person to conduct prosecution in complaint cases. The Court also clarified that in summons or warrant cases instituted otherwise than on a police report, the death of a complainant does not automatically mandate acquittal or discharge of the accused, provided the case is represented by a pleader or other authorized person.
On this basis, the High Court upheld the Magistrate’s order allowing the complainant’s sister to continue the case and dismissed the revision petition.
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