Hiralal Goenka v. Miss P. Lander & Anr.

1. This Rule is directed against an order dated 16.3.76 rejecting the application of the opposite party no. 1 in a preceding under S. 31 of the West Bengal Premises Tenancy Act, 1956 by which order the learned Rent Controller was pleased to allow the proceedings to go on although the complainant in that case had in the meantime died. The learned Rent Controller, however, did not permit the opposite party no. 1 to carry on the proceedings in place of the deceased complainant as a substituted representative of the complainant. The petitioner (Landlord) has come up against that order allowing the proceedings to go on in spite of the fact that the complainant had died in the meantime.

2. The question to be decided by me is whether under S. 247 of the Criminal Procedure Code the proceedings can go on if the complainant dies in the meantime. The learned Magistrate in his order has stated that the case is in its final stage inasmuch as all the witnesses were examined and the witnesses for defence also were examined and a date was fixed for argument and then this contingency took place. In the opinion of the learned Rent Controller he can go on with the case because personal attendance of the complainant is not necessary at that stage and he had discretion to dispense with the attendance and proceed with the case under S. 247 Cr. P. Code. As this is a case where water supply of the disputed premises had been stopped he exercised the discretion in favour of the aggrieved party, i.e, the tenants. The learned Rent Controller, however, misinterpreted the provision of S. 247 of the (old) Criminal Procedure Code. Section 247 of the (old) Code begins with the caption ‘Non-appearance of complainant’. It provides that on the day appointed for the appearance of the accused or on any subsequent day thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day provided that 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. Here there is nothing said about the death of the complainant. It is just non-appearance of the complainant which presupposes that the complainant is alive. I am supported in my view by certain reported decisions, viz., the case reported in 18 Cr. L.J 151 and AIR 1926 Bom. 178 and also AIR 1932 Nag. 72. Now the question is when the complainant is dead can anybody else be substituted to carry on the proceedings at whatever stage that be. In the Criminal Procedure Code I do not see any provision for such contingency as the present one, i.e what will happen and who will carry on with the proceeding upon the death of the complainant in the case. However, I do not see any bar also to substituting one complainant by another. If a complaint can be filed in respect of an offence by any party other than the aggrieved person I do not see why another complainant cannot be substituted in place of a dead complainant to carry on the proceeding. However, I also find from the provisions of S. 495(3) of the old Criminal Procedure Code which empowers a Magistrate to permit the conduct of any prosecution by a person other than an officer of police as provided in S. 495(1). Accordingly the learned Rent Controller was right in allowing the proceedings to go on. But I think he should have allowed the petition of the opposite party no. 1 who is the heir of the deceased complainant to be substituted in his place as the proceedings cannot go on at the instance of the Rent Controller without any person to represent the complainant. Accordingly I set aside that portion of the order of the learned Rent Controller disallowing the opposite party no. 1 to be substituted in place of the deceased complainant and allow the petition of the opposite party no. 1 to be substituted as prayed for by her. The rest of the order is confirmed.

The Rule is disposed of accordingly.

Rule made absolute in part.