Patil, J.:— This is a petition file under Section 482 Cr. P.C with a prayer to call for the records in C.C No. 571/78 on the file of the Principal Judicial Magistrate, First Class, Chickmagalur, and to dismiss the complaint filed by the father of the respondent.
2. The facts of the case giving raise to the present petition are like this:
3. Thimmaiah, the father of respondent Dyavappa Gowda, filed a complaint on 1-4-1978 before the J.M.F.C, Chickmagalur, with the allegation, inter-alia, that on 6-3-1978 accused-petitioners 1 to 8 having committed criminal trespass into his house, had assaulted and they haj thereby committed several offences punishable under Sections 143, 147, 149, 324, 326, 342 and 506 I.P.C
4. The learned Magistrate taking cognizance of the case recorded the sworn statement of the complainant and being of the opinion that there were sufficient grounds for proceeding against the petitioners, who were the accused named therein, he registered a case in C.C No. 571/78 for offences u/s. 323, 342, R/w. 34 and 506 I.P.C and issued process against the accused-petitioners for their appearance. On 22-7-1978, when the accused-petitioners appeared before the court, the complainant's son Dyavappa appeared and sought the permission of the Magistrate to prosecute the case on the ground that his father, in the meanwhile, had died on 26-6-1978. The said application was opposed by the accused-petitioners on the ground that on the absence of the complainant for whatever may be the cause, the accused-petitioners were entitled to be acquitted. The learned Magistrate being of the view that on the death of the original complainant his son could prosecute the case, rejected their contention and made an order dated 9-10-1978 allowing the son to prosecute the case. Being aggrieved the accused-petitioners in the case approached the Sessions Judge in Criminal Revision Petition No. 26/78. The learned Sessions Judge having dismissed the revision by his order dated 13-2-1979 aggreeing with the view taken by the Magistrate, the accused-petitioners herein have approached this court invoking the inherent powers of the court under Section 482 Cr. P.C
5. The respondent, though served, is absent.
6. The short question that arises for consideration in view of the contentions advanced by Sri G.V Thimmappaiah, learned Counsel appearing for the accused-petitioners, is whether on the death of the complainant, in the circumstances, the complainant's son, could be allowed to prosecute the case.
7. Section 256 Cr. P.C, deals with the absence of the complainant and the consequences thereof. It reads as follows:—
“256. (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything herein before 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.”
It is clear from the reading of the said provisions that when summons has been issued on the complaint for the appearance of the accused and on the day appointed for the appearance of the accused, or any day subsequent thereto, to which the hearing of the case is adjourned and the complainant does not appear, notwithstanding anything contained in the Code of Criminal Procedure, the Magistrate shall acquit the accused, unless he thinks proper, for reasons to be recorded, to adjourn the hearing of the case to any other date. Though the provisions do not empower the Magistrate automatically to make an order of acquittal on the absence of the complainant, but the adjournment of the case to any future date contemplated is where it is possible for the complainant to appear on the adjourned date. Where the complainant has died there being no such question his appearing on a future date, adjournment of the case for any future date does not arise. The provisions also make it clear that the Magistrate has to either adjourn the case or acquit the accused on the very date on which the complainant is absent. It is not open to him to adjourn the case to any date and then to make an order of acquittal for the reasons of the absence of the complainant when the summons has been issued for the appearance of the accused.
8. In Bontu Appala Naidu v. Emperor(1) a similar question arose for consideration under the corresponding provisions of Sec. 247 Cr. P.C, 1898. That was also a summons case as the case on hand. Pending enquiry when the complainant died and his son appeared and wanted to prosecute the case, the Magistrate adjourned the case in order to enable the complainant's son to come on record and thereafter allowing the complainant's son to prosecute the case, proceeded with the enquiry and trial and convicted the accused. It was held: the complainant having died during the course of the enquiry, the Magistrate should have acquitted the accused and should not have proceeded with the enquiry and that appears to be correct procedure to be followed in such cases, because on the death of the complainant none-else will be deemed to be complainant, however, interested he may be in the case. The complainant referred to in Section 256 Cr. P.C, has to be understood as the one whose sworn statement was recorded under Sec. 200 Cr. P.C This view finds support from the decision in Nanilal Samanth v. Rabin Ghosh.2 It is observed:
“Complainant” has not been defined in Criminal Procedure Code. But that only mean the person who was examined as complainant under Sec. 200. No other person can be denied to be a complainant however much he may be interested in the prosecution of the accused or in the property which is the subject matter of the alleged offence. If the complainant dies before presentation of the appeal, no other person, not even his legal heirs may have the right. In such a case the right to present an appeal from the order of acquittal shall be only of the State Government under Sec. 417(1).
There being some conflict of view, the legislature, it appears, has thought it proper now to make it clear that whatever may be cause for non-appearance of the complainant, if the complainant is absent, the Magistrate has to make an order of acquittal. Sub-section (2) of Section 256 Cr. P.C, says: 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. Sinee, on the death of the complainant, there is no possibility of his appearing on any future date, the question of adjourning the case to any future date does not arise. So far as the enquiry and trial of the summons cases are concerned, it appears, the provisions of Section 256 Cr. P.C, are clear and unambiguous that on the death of the complainant the only alternative left to the Magistrate is to acquit the accused.
9. It is thus clear that the Magistrate was in error in proceeding with the case on the death of the complainant by allowing his son to prosecute the complaint. The Sessions Judge was also in error in dismissing the revision.
10. In the result and for the reasons stated above and for the ends of justice, the petition is allowed. The accused-petitioners shall stand acquitted.