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Panchu Swain v. Emperor
Factual and Procedural Background
This application arises out of a case under S. 323, Penal Code, begun on the complaint of Krupasindhu Jena. After prosecution witnesses were examined and cross-examined, a charge under S. 323 was framed against the accused for causing hurt to three persons: Krupasindhu Jena (the complainant, P.W.1), Fagu Jena (P.W.3) and Bhagu Samal (P.W.6). The accused summoned defence witnesses who did not appear despite adjournments; the Magistrate proceeded to deliver judgment and convicted the accused. The accused appealed to the Sessions Judge, which appeal was dismissed. On revision to this Court, Agarwala J., by order dated 18 August 1941, set aside the conviction and sentence and remanded the case to the trying Magistrate to be tried with the attendance of the witnesses the accused wished to examine. While the case was pending before the Magistrate on remand, the complainant died. The accused then petitioned the Magistrate for discharge; the Magistrate rejected that petition on 29 January 1942 and directed that the case proceed, instructing that the Court Inspector would cross-examine the defence witnesses. The accused's application to the District Magistrate was unsuccessful. The present revision application asks that the Magistrate's order dated 29 January 1942 be set aside.
Legal Issues Presented
- Whether a criminal prosecution under S. 323 (a compoundable offence) abates on the death of the complainant, thereby obliging the Magistrate to discharge the accused.
- Whether, in light of provisions of the Criminal Procedure Code (notably ss. 247, 269 and 259 as discussed), the Magistrate was empowered or bound to proceed with the case despite the complainant's death.
- What is the effect of the existence of other injured/prosecution witnesses (alive) on the continuation of the prosecution when the original complainant dies.
Arguments of the Parties
Petitioner's Arguments
- Mr. Subba Rao, for the petitioner, argued that because the case is under S. 323 and therefore compoundable, the proceedings abated on the death of the complainant and the Magistrate was bound to discharge the accused.
- He relied on decisions of the Punjab Chief Court cited as 40 I.C 10081 and 52 I.C 7972, and a decision of the Madras High Court cited as A.I.R 1923 Mad. 206.3, which, according to counsel, held that prosecutions for offences such as hurt or defamation are personal to the complainant and abate on his death.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 40 I.C 10081 | Taken (by counsel) to support the view that prosecution for offences such as hurt or defamation is an action personal to the complainant and therefore on his death the prosecution abates. | The court stated it was unable to agree with this view and did not follow these decisions on the point that prosecution abates by reason of the complainant's death. |
| 52 I.C 7972 | Taken (by counsel) to support the view that prosecution for offences such as hurt or defamation is an action personal to the complainant and therefore on his death the prosecution abates. | The court stated it was unable to agree with this view and did not follow these decisions on the point that prosecution abates by reason of the complainant's death. |
| A.I.R 1923 Mad. 206.3 | Taken (by counsel) to support the view that prosecution for offences such as hurt or defamation is an action personal to the complainant and therefore on his death the prosecution abates. | The court stated it was unable to agree with this view and did not follow this decision on the point that prosecution abates by reason of the complainant's death. |
| 2 Lah. 27,4 | The decision is cited in the opinion as supporting the principle that in a criminal case there can be no abatement by reason of the death of the complainant. | The court treated this decision as supporting its conclusion that the death of the complainant does not cause abatement of a criminal prosecution. |
| 44 Mad. 417,5 | The decision is cited in the opinion as supporting the principle that in a criminal case there can be no abatement by reason of the death of the complainant. | The court treated this decision as supportive of the view that criminal proceedings do not abate on the complainant's death. |
| A.I.R 1924 ALL. 6666 | The decision is cited in the opinion as supporting the principle that in a criminal case there can be no abatement by reason of the death of the complainant. | The court relied on this line of authority to support its conclusion that death of the complainant does not terminate a criminal prosecution. |
| A.I.R 1926 Bom. 178.7 | The decision is cited in the opinion as supporting the principle that in a criminal case there can be no abatement by reason of the death of the complainant. | The court treated this decision as consistent with and supportive of its view that criminal proceedings survive the complainant's death. |
Court's Reasoning and Analysis
The court rejected the contention that criminal proceedings abate on the complainant's death. Its reasoning proceeded as follows:
- The court found no provision in the Criminal Procedure Code to warrant abatement of criminal proceedings by reason of the death of the complainant.
- The court examined Section 247 (a summons case provision) and noted its wording that if the complainant does not appear on the day appointed, the Magistrate shall acquit the accused unless he thinks proper to adjourn the hearing to some other day. The court interpreted this to mean that a Magistrate may, if he thinks proper, proceed with the case despite the absence of the complainant.
- The court also referred to Section 269 (the corresponding provision for a warrant case) which contemplates absence of the complainant and permits the Magistrate, in his discretion and subject to the stage of proceedings, to discharge the accused in certain circumstances; the court used this provision to show that absence of the complainant does not automatically terminate proceedings.
- The court emphasized that in the present matter the charge related to hurt caused not only to the deceased complainant but also to two other persons who were prosecution witnesses and were still alive; accordingly the prosecution could continue in respect of offences alleged against multiple victims.
- Because the charge had already been framed and the matter was a warrant case, the Magistrate was justified under the terms of Section 259 of the CrPC in proceeding with the case despite the complainant's death.
- The court rejected the analogy to civil actions: although a civil cause of action may be personal to the plaintiff, that analogy does not apply to criminal proceedings, which must be carried on according to the Criminal Procedure Code.
- The court observed that other decisions (as listed in the opinion) lay down the principle that criminal proceedings do not abate by reason of the complainant's death, and regarded those decisions as supporting its conclusion.
- On these bases the court concluded that the Magistrate's decision to continue the proceedings was correct and the accused was not entitled to discharge by reason of the complainant's death.
Holding and Implications
APPLICATION DISMISSED.
Direct effect on the parties: The Magistrate's order dated 29 January 1942 refusing to discharge the accused stands, and the criminal proceedings were to continue (including the Court Inspector cross-examining defence witnesses as directed by the Magistrate). The opinion does not set out broader implications as a formal new precedent beyond the court's application of statutory provisions and cited authority to deny abatement on the complainant's death.
1. This application arises oath of a case under S. 323, Penal Code, which was started on the complaint of Krupasindhu Jena. After the prosecution witnesses were examined and cross-examined, a charge under S. 323 was framed against the accused for causing hurt to three persons, namely, Krupasindhu Jena the complainant, P.W 1, Fagu Jena P.W 3 and Bhagu Samal P.W 6. The accused summoned some defence witnesses, but as they did not turn up in spite of adjournments, the Magistrate proceeded to deliver judgment and he convicted the accused. Against the conviction the accused preferred an appeal to the Sessions Judge which was dismissed. He then came up in revision to this Court, and Agarwala J. by his order dated 18th August 1941 set aside the conviction and sentence and remanded the case to the trying Magistrate to be tried by him securing the attendance of the witnesses whom the accused wished to examine. The case then went back to the Magistrate. While the case was pending before him, the complainant died. On his death the accused filed a petition praying that he may be discharged. This petition was rejected by the Magistrate on 29th January 1942 and he directed that the case should proceed and the Court Inspector would cross-examine the defence witnesses. Against this order the accused moved the District Magistrate but without any success. He has now filed this present application in revision asking that the order of the Magistrate dated 29th January 1942 be set aside.
2. Mr. Subba Rao on behalf of the petitioner argues that as the case being one under s. 323, Penal Code, was compoundable, the proceedings abated on the death of the complainant and the Magistrate was bound to discharge the accused. In support of this contention he relies on the decisions of the Punjab Chief Court in 40 I.C 10081 and 52 I.C 7972 and also on the decision of the Madras High Court in A.I.R 1923 Mad. 206.3 In all these cases the learned Judges took the view that prosecution for offences snob as hart or defamation is an action personal to the complainant and therefore on his death the prosecution abates. With all respect to the learned Judges, I am unable to agree with this view. There is nothing in the Criminal Procedure Code to warrant the view that there is abatement of a criminal proceeding on the death of the complainant. Section 247, which refers to a summons case, provides:
If the summons has been issued on complaint, and upon 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 hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day.
3. This provision itself suggests that even though in a summons case the complainant may be absent on the date fixed for hearing, the Court may, if it thinks proper, instead of acquitting the accused, adjourn the case to some other day; in other words, he may proceed with the case despite the absence of the complainant.
4. No doubt the section contemplates absence of the complainant and not his death, but the principle is the same in both cases. The corresponding provision with regard to a warrant case is to be found in s. 269 which runs as follows:
When the proceedings have been instituted upon complaint, and upon any day fixed for the hearing of the case the complainant is absent, and the offence may be lawfully compounded, or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained at any time before the charge has been framed, discharge the accused.
5. This section makes it perfectly clear that even in a case instituted upon complaint where charge has been framed, the Magistrate has no option but to proceed with the case although the complainant may not appear on the date fixed for hearing. It is to be observed that in this particular case the charge was in respect of hurt caused not only to the complainant but to two other persons who are prosecution witnesses and who are still alive. According to the direction of this Court, the Magistrate proceeded with the case at the stage when he had in the first instance failed to secure the attendance of the defence witnesses. The charge had already been framed and the Magistrate was to proceed upon the charge as framed. It was a warrant case and the Magistrate was perfectly justified by the terms of Section 259 of the Cr PC in proceeding with the case. Though a case may be started on the complaint of any particular individual and though that case may be compoundable, it is erroneous to compare the case to a civil action where the cause of action is personal to the plaintiff. The cause of action for a civil suit bears no analogy to an offence; once a criminal case is started, be it upon a complaint, or not, the proceedings must be carried on according to the provisions of the Criminal Procedure Code. I fail to understand how a criminal case can abate by reason of the death of a complainant. This view is supported by the decisions in 2 Lah. 27,4 44 Mad. 417,5 A.I.R 1924 ALL. 6666 and A.I.R 1926 Bom. 178.7 Though the facts of these cases may not be exactly similar to those of the present, they undoubtedly lay down the principle that in a criminal case there can be no abatement by reason of the death of the complainant. I must accordingly dismiss the application.
G.N
6. Application dismissed.
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