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Ashok Kumar v. Abdul Latif And Others
Factual and Procedural Background
On 25-4-1982, the father of the petitioner, Rishi Ram, filed a complaint against the respondents under Sections 323, 427, and 451 of the Indian Penal Code (IPC) in the trial Court of Sub-Registrar Judicial Magistrate, Jammu. During the pendency of these proceedings, the complainant died. Subsequently, his son Ashok Kumar, the present petitioner, filed an application on 26-11-1984 seeking permission to continue the criminal prosecution initiated by his father. The trial magistrate, by order dated 24-4-1985, directed the prosecuting officer to conduct the proceedings on behalf of the complainant and the case proceeded until the complaint was dismissed on the alleged ground of the absence of the complainant. The petitioner then preferred a revision petition. The learned 1st Additional Sessions Judge, Jammu, recommended setting aside the trial court's dismissal order and directed prosecution of the complaint in accordance with the law.
Legal Issues Presented
- Whether the death of a complainant results in automatic termination of a criminal prosecution initiated by him.
- Whether the trial court erred in dismissing the complaint on the ground of the complainant's absence after his death.
- Whether Section 495 of the Criminal Procedure Code (Cr. P.C.) empowers the magistrate to permit another person to conduct prosecution on behalf of the deceased complainant.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Smt. Mayabati Haldar v. Rent Controller, AIR 1981 Cal 118 | Clarification that Section 247 Cr. P.C. does not deal with consequences of a complainant's death and that proceedings do not terminate automatically on such death. | The court relied on this decision to hold that the death of a complainant does not ipso facto terminate criminal proceedings and that continuance is possible through substitution. |
| Ashwin v. State of Maharashtra, AIR 1967 SC 983 | Supreme Court's observation that the Cr. P.C provides for death of accused/appellant but not expressly for death of complainant, implying that consequences of complainant's death must be inferred. | The court used this precedent to support the principle that criminal prosecution does not abate on the death of a complainant and that substitution is permissible. |
Court's Reasoning and Analysis
The court recognized that the Criminal Procedure Code does not expressly provide for the death of a complainant, unlike provisions for the death of an accused or appellant. The court emphasized that criminal offences are considered offences against society and thus must be prosecuted to finality. Section 495 Cr. P.C. authorizes the magistrate to permit any person to conduct prosecution on behalf of the complainant. The court noted that the trial magistrate had directed the prosecuting officer to conduct proceedings on behalf of the complainant, and thus dismissal of the complaint for absence of the complainant was improper. The court relied on authoritative precedents to reject the notion that a complaint must be dismissed merely because the complainant died. It held that the magistrate has the power to substitute another prosecution agency, including legal representatives, to continue the case. Therefore, the trial court's order dismissing the complaint on the ground of the complainant's death contravened the provisions of the Cr. P.C. and was liable to be set aside.
Holding and Implications
Holding: The revision petition was accepted; the order of the trial court dismissing the complaint on the death of the complainant was set aside. The case was remanded to the trial court with directions to proceed with the prosecution after substituting the petitioner to conduct the case on behalf of the complainant under Section 495 of the Cr. P.C.
Implications: The decision clarifies that the death of a complainant does not automatically terminate criminal proceedings. It affirms the magistrate's authority under Section 495 Cr. P.C. to permit substitution of the complainant or prosecution agency to continue the prosecution. No new precedent was set; rather, the court applied and reinforced existing legal principles to ensure that criminal prosecutions proceed to their lawful conclusion despite the complainant’s death.
1. Father of the petitioner Rishi Ram filed a complaint against the respondents under Ss. 323, 427 and 451 RPC in the trial Court of Sub-Registrar Judicial Magistrate,.lammu on 25-4-1982. During the pendency of the proceedings, the complainant died and his son Ashok Kumar the present petitioner filed an application in the trial Court on 26-11-1984 for permission to continue criminal prosecution against the accused personswhich was launched by his father. The trial magistrate vide his order dt. 24-4-1985 directed the prosecuting officer to conduct the proceedingson behalf of the complainant and proceeded with the case till date when the complaint was dismissed allegedly on the ground of the absence of the complaint. Petitioner preferred a revision petition and the learned 1st Addl. Sessions Judge, Jammu, vide the order of reference has recommended for setting aside the order of the trial Court and prosecution of the complaint in accordance with the provisions of law.
2. I have heard the learned counsel for the petitioner and perused the record. No one has appeared for the respondents.
3. It is true that there is no provision for bringing on record the legal representatives pi a party in criminal proceedings but as the penal offence committed by a person unless from the nature of it is personal to the complainant is an offence against the society and has to be prosecuted in accordance with the provisions of law till its final disposal. S. 495, Cr. P.C authorises the magistrate to permit any person to conduct the prosecution on behalf of the complainant.
4. The application filed by the son of the complainant namely Ashok Kumar appears to have not been decided and the Prosecuting Officer directed to appear on behalf of the complainant for conducting the case. Once the Prosecuting Officer was directed to appear for the Complainant there was no question for dismissing the complaint for the alleged absence of the complainant either under Ss. 247 or 259 of the Cr. P.C Merely on the death of the complainant, the complaint filed by him cannot be dismissed nor the accused acquitted or discharged under S. 247 or 259 Cr. P.C A Division Bench of Calcutta High Court in Smt. Mayabati Haldar v. Rent Controller, Calcutta dealt with the matter and held: AIR 1981 Cal 118 (at p. 120):
“The view that S. 247 also applies to the, non-appearance of the complainant because; of his death presupposes by necessary implication that S. 247 is a provision dealing with the consequence of the death of a complainant. In repelling such view; the learned Judge has placed reliance on a decision of the Supreme Court in Ashwin v. State of Maharashtra, AIR 1967 SC 983 : (1967 Cri LJ 943). In that case, the complainant died at the committal stage under Chap. XVIII of the Code, the question that came to be considered by the Supreme Court was whether the complainant's mother could be substituted as the fit and proper, complainant as prayed for by her or whether the proceedings has ipso facto come to an end on the death of the complainant. While overruling the contention of the accused that the proceedings terminated on the death of the complainant, the Supreme Court observed:
“The Cr. P.C provides only for the death of an accused or an appellant but does not expressly provide for the death of complainant. The Code also does not provide; for abatement of inquiries and trials although it provides for the abatement of appeals on the death of the accused in appeals under Ss. 411A(2) and 417 and on the death of an appellant in all appeals except an appeal from a sentence of fine. Therefore, what happens on the death of a complainant, in a case started on a complaint has to be inferred generally from the provisions of the Code.”
5. We need not analyse those cases because, in our opinion, unless the Code itself says what is to happen, the power of the Court to substitute another prosecution agency (subject to such restrictions as may be found) under S. 495, Cr. P.C is always available.
“If S. 247 be regarded as providing the consequence of the death of a complainant, in that case, the Supreme Court would not have observed that the Code did not expressly provide for the death of a complainant or the abatement of inquiries and trials. It is argued that as to what would happen on the death of a complainant has to be inferred generally from the Code as observed by the Supreme Court. In our opinion, such inference is in favour of the continuance of the proceedings rather than the termination thereof as contended on behalf of the appellant. It is true that S. 247 provides for the acquittal of the accused in the case the complainant does not appear on the day fixed for hearing, but this is subject to the condition that the Magistrate does not, for some reason he thinks proper, adjourn the hearing of the case to some other day. Therefore, the rule laid down in S. 247 of the Code for the acquittal of the accused is not an absolute rule. Leaving aside the non-appearance of the complainant by reason of his death, a complainant may be prevented from appearing due to his illness and other unavoidable circumstances beyond his control. If the Magistrate is satisfied that there is sufficient cause for the non-appearance of the complainant, he will adjourn the hearing of the case to some other day. It seems to us that wilful non-appearance is due to some sufficient cause. We do not think we are to decide whether S. 247 also relates to non-appearance of the complainant due to his death. But assuming that it does, there cannot be any better cause for non-appearance of the complainant than his death. As has been already observed, the maximum actio personalis moritur cum persona has no application to criminal prosecution; the death of the complaint cannot ipso facto bring about the termination of the proceedings. In such a case, the Magistrate is entitled to exercise his power under S. 495 of the Code by substituting another prosecution agency. If the Magistrate considers the legal representative of the deceased complainant to be a fit and proper person, he may go on with the proceedings with the legal representative as the complainant or the prosecution agent So, even in case of the death of the complainant, the proceedings does not terminate.”
6. I am in full agreement with the view taken by the Calcutta High Court that the death of complainant cannot ipso facto bring about he termination of the criminal proceedings the in the case, the Magistrate is authorised to exercise his Power under S. 495, Cr. P.C by substituting another person or prosecution agency for the conduct of the criminal case, he trial Court in this case appears to have verlooked the application of the petitioner and its own order dated 26-11-1984 by which he Prosecuting Officer was directed to duct the case on behalf of the complainant.
7. The order impugned in the revision petition dismissing the complaint merely on the death of the complainant, is therefore, in contravention of the provisions of the Cr. P.C and liable to be set aside. The reference is accepted and the order impugned is set aside. The case is sent back to the trial Court with direction to proceed with the case after substituting the petitioner to conduct the case on behalf of the complainant in terms of S. 495 of the Cr. P.C The file of the Court below shall be immediately sent back where the learned counsel for the petitioner has been directed to appear on 20-5-1989.
8. Order accordingly.
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