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Balasaheb K. Thackeray v. Venkat
Factual and Procedural Background
On 7 September 1994, Shri Venkat @ Babru (“the complainant”) filed Private Complaint No. R.Crl.C 107 of 1994 before the Judicial Magistrate, First Class, Sailu, District Parbhani, alleging that the editor, printer and publisher of the newspaper Dainik Samna (the present appellants) had defamed him through various news items, constituting offences under Section 500 read with Section 34 of the Indian Penal Code. The complaint against three reporter-accused was subsequently withdrawn, leaving only the present appellants.
The Magistrate issued process on 15 September 1994. The appellants sought quashing under Section 482 of the Code of Criminal Procedure, 1973 (“CrPC”) before the Bombay High Court, Aurangabad Bench; that petition was dismissed. A Special Leave Petition (Criminal) No. 4367 of 2003 was then filed in the Supreme Court, which admitted the appeal on 3 February 2005. During the pendency of the appeal, the complainant died on 3 August 2005. Earlier, by order dated 13 October 2003, further proceedings before the Magistrate had been stayed.
Legal Issues Presented
- Does a private complaint for defamation under Section 500/34 IPC automatically abate upon the death of the original complainant?
- Can the legal heirs of the deceased complainant be permitted to continue the prosecution, and, if so, under what statutory provision (Section 302 CrPC versus Section 256 CrPC)?
- Which court is competent to consider an application by the legal heirs for permission to prosecute, given the stay of Magistrate-court proceedings?
Arguments of the Parties
Appellants' Arguments
- Invoked Section 256 CrPC to contend that the complaint must be dismissed because the complainant is no longer alive to prosecute it.
Legal Heirs of the Complainant
- Submitted that they intend to file an application seeking permission to continue the prosecution, relying on Section 302 CrPC.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ashwin Nanubhai Vyas v. State of Maharashtra, (1967) 1 SCR 807; AIR 1967 SC 983 | A Magistrate has power (under Section 495 of the 1898 Code, equivalent to present Section 302 CrPC) to permit a relative of the complainant to continue the prosecution. | Cited to establish that the legal heirs may be permitted to act as complainant and carry the prosecution forward. |
| Jimmy Jahangir Madan v. Bolly Cariappa Hindley (Dead) By LRs, (2004) 12 SCC 509 | Heirs of a deceased complainant can file a petition under Section 302 CrPC to continue a private complaint. | Used to reinforce the proposition that the prosecution does not necessarily abate on the complainant’s death and heirs may step in with the court’s permission. |
Court's Reasoning and Analysis
The Court examined the statutory framework and precedent:
- Section 302 CrPC empowers a Magistrate to permit “any person” (other than a police officer below Inspector rank) to conduct a prosecution, subject to prior permission.
- Relying on Ashwin Nanubhai Vyas and Jimmy Jahangir Madan, the Court reaffirmed that this permission can extend to legal heirs of a deceased complainant.
- The Court clarified that Section 256 CrPC, which deals with dismissal for non-appearance of a complainant, does not operate automatically upon death where an application under Section 302 CrPC is maintainable.
- Because earlier proceedings before the Magistrate were stayed, the Court acknowledged counsel’s submission that any application by the heirs would be filed before the Supreme Court; the Court reserved liberty to consider such an application “appropriately” when filed.
Holding and Implications
ORDERED ACCORDINGLY. The Supreme Court did not dismiss the complaint; instead, it held that if the legal heirs of the deceased complainant seek permission to prosecute under Section 302 CrPC, that request will be considered on its merits by the competent court.
Implications: The decision preserves the viability of the defamation proceedings despite the complainant’s death and underscores that private complaints do not necessarily abate in such circumstances. No new legal doctrine was created, but existing principles on continuation of prosecutions by heirs were reaffirmed.
Arijit Pasayat, J.— An interesting question, as to what is the effect of the death of the complainant, arises for consideration in this case. When the matter was listed for hearing, learned counsel for the appellants submitted that Respondent 1, who was the complainant has died and, therefore, the proceedings initiated on the basis of the said complaint do not survive. Learned counsel for the legal heirs of the complainant submitted that they propose to continue the proceedings and file an appropriate application thereof.
2. A brief reference to the factual aspects would suffice:
Shri Venkat @ Babru (hereinafter referred to as “the complainant”) filed a private complaint bearing No. R.Crl.C No. 107 of 1994 on 7-9-1994 against the appellant and four others in the Court of the Judicial Magistrate, First Class, Sailu, District Parbhani alleging commission of offence punishable under Section 500 read with Section 34 of the Penal Code, 1860 (in short “IPC”). Subsequently, the complaint against the three reporters was withdrawn and proceedings are continuing against the appellants i.e the editor, printer and publisher of a newspaper Dainik Samna. The allegation in the complaint was that the accused persons in furtherance of their common intention had published news in respect of the complainant in their newspaper published from Aurangabad on various dates. It was alleged in the complaint that due to the report, the reputation of the complainant was tarnished and he was defamed. After hearing the arguments the learned Magistrate issued process by order dated 15-9-1994. A petition under Section 482 of the Code of Criminal Procedure, 1973 (in short “the Code”) was filed before the Bombay High Court, Aurangabad Bench which was dismissed by the judgment impugned in the appeal. The appellants filed special leave petition [SLP (Crl.) No. 4367 of 2003]. After notice, the appeal was admitted on 3-2-2005. When the matter was taken up for hearing on 31-5-2006 it was pointed out that Respondent 1, the complainant had died on 3-8-2005.
3. Learned counsel for the appellants with reference to Section 256 of the Code submitted that the complaint was to be dismissed on the ground of the death of the complainant. As noted above learned counsel for Respondent 1's legal heirs submitted that the legal heirs of the complainant shall file an application for permission to prosecute and, therefore, the complaint still survives consideration.
4. At this juncture it is relevant to take note of what has been stated by this Court earlier on the principles applicable. In Ashwin Nanubhai Vyas v. State of Maharashtra (1967) 1 SCR 807, AIR 1967 SC 983, 1967 Cri LJ 943 with reference to Section 495 of the Code of Criminal Procedure, 1898 (hereinafter referred to as “the old Code”) it was held that the Magistrate had the power to permit a relative to act as the complainant to continue the prosecution. In Jimmy Jahangir Madan v. Bolly Cariyappa Hindley (2004) 12 SCC 509 after referring to Ashwin case (1967) 1 SCR 807, AIR 1967 SC 983, 1967 Cri LJ 943 it was held that heir of the complainant can be allowed to file a petition under Section 302 of the Code to continue the prosecution.
5. Section 302 of the Code reads as under:
“302. Permission to conduct prosecution.—(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:
Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by a pleader.”
6. To bring in application of Section 302 of the Code, permission to conduct the prosecution has to be obtained from the Magistrate inquiring into or trying a case. The Magistrate is empowered to permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person other than the Advocate General or the Government Advocate or a Public Prosecutor or Assistant Public Prosecutor shall be entitled to do so without such permission.
7. Above being the position, if any permission is sought for by the legal heirs of the deceased complainant to continue prosecution, the same shall be considered in its perspective by the court dealing with the matter. It is brought to the notice that by order dated 13-10-2003 further proceedings before the Magistrate are stayed. In that background, Mr Adsure submitted that the application shall be filed before this Court. If and when any application is filed the same shall be dealt with appropriately. Ordered accordingly.
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