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Mahomed Azam v. Emperor
Factual and Procedural Background
The deceased complainant, a trustee of a mosque, filed a complaint against the petitioner, who was not a trustee, alleging that the petitioner had pulled down the complainant's scaffolding and erected his own scaffolding for whitewashing the mosque. The complaint was made under Sections 426 and 143 of the Indian Penal Code. Initially, notice was issued, which was later converted into a summons. After several adjournments and before any evidence was recorded, the complainant died. The accused applied for discharge on the ground that the complaint had abated due to the complainant’s death. The Magistrate rejected this application and permitted the proceedings to continue with another witness acting as complainant.
Legal Issues Presented
- Whether on the death of a complainant, the complaint necessarily abates and the accused is entitled to discharge.
- Whether, under the peculiar circumstances of this case, the learned Magistrate was correct in permitting the continuance of the complaint.
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 |
|---|---|---|
| In re Ganesh Narayan Bathe | The Code does not confine prosecutions to persons directly injured, even in non-cognizable offences. | Supported the view that prosecution may continue despite the death of the complainant in non-cognizable cases. |
| In re Thathayya | Once sanction under Section 195 CrPC is granted, complaint is not restricted to any particular individual. | Reinforced the principle that complaints can continue despite the complainant’s death. |
| Damoo Sahu v. Jitan Dusadh | Questioned whether Section 247 CrPC applies where the complainant is deceased; suggested discretion under Section 259 CrPC. | Adopted the view that Magistrates have discretion to allow complaints to continue with a proper complainant substituting the deceased. |
| Madho Choiudhury v. Turab Mian | Considered in relation to applicability of Section 247 CrPC to cases with deceased complainants. | Referenced as part of the reasoning on Magistrate’s discretion in non-cognizable complaints. |
| Puna Chandra Moulik v. Dengar Chandra Pal | Related to procedural aspects of complaints under the CrPC. | Supported the analysis of discretion available to Magistrates in such cases. |
Court's Reasoning and Analysis
The Court distinguished between cognizable and non-cognizable offences, noting that in cognizable offences, prosecution is by the State and the death of a complainant does not affect proceedings. In non-cognizable offences instituted by complaint, the Court held that the principle of actio personalis moritur cum persona (a personal action dies with the person) from civil tort law does not apply. The Court relied on statutory provisions (Sections 247 and 259 of the CrPC) and prior case law to conclude that the Magistrate has discretion to allow continuation of the complaint by permitting a proper substitute complainant if willing. The Court emphasized that this discretion must be exercised cautiously to avoid harassment of the accused. It found no jurisdictional error in the Magistrate’s rejection of the discharge application following the complainant’s death. The Court declined to comment on the Magistrate’s subsequent action as the record was not before it.
Holding and Implications
The application is dismissed.
The Court upheld the Magistrate’s discretion to continue a non-cognizable complaint despite the complainant’s death by allowing a proper substitute complainant. The direct effect is that the accused is not entitled to discharge solely on the ground of the complainant’s death. No new precedent was established beyond affirming existing principles and discretion under the CrPC. The decision preserves procedural flexibility in non-cognizable complaints and cautions against unwarranted dismissal or harassment.
Madgavkar, J.:— The question in this, application is: first, whether on the death of a complainant the complaint necessarily abates and the accused is entitled to a discharge; and, secondly, whether, in the peculiar circumstances of this case, the learned Magistrate was right in permitting the continuance of the complaint.
2. The deceased complainant was a trustee of a mosque and complained that the petitioner, who was not a trustee, had pulled down the complainant's scaffolding and had erected his own scaffolding for whitewashing the mosque.
3. The complainant charged the accused under Ss. 426 and 143 of the Indian Penal Code. Notice was issued in the first instance, subsequently converted into a summons; and after several adjournments, and before evidence was recorded, the complainant died. The petitioners-accused applied for a discharge on the ground that the complaint had abated by reason of the complainant's death. That application was rejected, and it appears that subsequently the learned Magistrate has allowed the proceedings to continue with a certain witness as the complainant.
4. The question of jurisdiction has not been exhaustively argued before us. There can be no question that in the case of cognizable offences, where a complainant and a complaint are not necessary, the death of the injured person makes no difference to the Criminal proceedings, which are a matter for the State and which are undertaken by the Government. But even in the case of non-cognizable offences, such as for instance bribery, as is pointed out by this. Court in In re Ganesh Narayan Bathe(1), the Code does not intend to confine prosecutions to the persons directly injured. Similarly, in the case of a sanction, under Section 195 of the Cr PC, it was held in In re Thathayya(2) that once a sanction under P. 195 of the Code of Criminal Procedure was granted, there was nothing to restrict the complaint to any particular individual. On the whole we agree with the view of Chamier, C.J, in Damoo Sahu v. Jitan Dusadh(3), after considering Madho Choiudhury v. Turab Mian(4) and Puna Chandra Moulik v. Dengar Chandra Pal(5), that “it is open to doubt whether S. 247 of the Code was intended to apply to such a case as this. It seems to apply primarily to the case of a complainant who is alive, but does not appear.” Under S. 259, which is perhaps the only other relevant section, the Magistrate “may,” not “shall”, discharge the accused. We are of opinion, therefore, that in the present case of a non-cognizable offence instituted upon an complaint, the axiom of actio personalis moritur cum persona, in civil law confined to torts, does not apply, and that the trying Magistrate has discretion in proper cases to allow the complaint to continue by a proper and fit complainant, if the latter is willing. The Courts would always be on their guard against needless harassment of an accused by substituting a complainant, who is not a fit person. In the present instance it does not appear to us that it was outside the Jurisdiction of the Magistrate to reject the petitioner's application for dismissal of the complaint and for his own discharge by reason of the death of the complainant. As to his subsequent action, the record is not before us and it is not necessary for us to express any opinion.
5. We dismiss the application.
6. Marten, J.:— I would only add that there is an unreported case in our Presidency which has some bearing on the present case. It is application for Transfer No. 356 of 1924 from Ahmednagar and it came before the Chief Justice and Mv. Justice Crump on November 12, 1924, and before Mr. Justice Pratt and myself on December 4, 1924. The charge was under Ss. 477-A and 109 of the Indian Penal Code, for falisfication of accounts, but the complainant died after his examination in the committal proceedings. The Magistrate who tried the case had discharged the accused on the merits, but the wife of the deceased complainant appealed to the Sessions Judge praying for a reversal of the order of discharge and for a re-trial. The Sessions Judge allowed this appeal and directed the Magistrate to frame a charge and commit the accused to the Sessions. The matter then came up before the High Court and eventually the trial was directed to be taken by a certain Magistrate. It does not appear that the question of jurisdiction was raised in that case, but it can hardly have been overlooked.
7. Before us, counsel for the accused has not contended that there is no jurisdiction in this Court to substitute a new complainant for a deceased one in a non-cognizable case. He has confined his observations to the facts of this particular case and has argued that the accused should be acquitted.
8. I agree with my learned brother in thinking that the accused ought not to be acquitted. I also agree with the order proposed by him.
9. Application dismissed.
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