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TMI Blog1966 (10) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of one Kusum Vithal Abhyankar, who charged him with offences under ss. 417, 493 and 496 of the Indian Penal Code. Kusum's complaint was that Vyas went through a sham marriage with her, before a person who posed as an Officer from the office .of the Registrar for Marriages. Subsequently, Vyas abandoned her and married another. On being questioned Vyas told her ,(Kusum) that he had never married her, as the whole affair was a sham. Kusum alleged that she had become pregnant as a result of the cohabitation but in view of her serious heart ailment Vyas took her to a clinic where under medical advice and on certificate .granted by Vyas an abortion was caused to save Kusum's life. The complaint was filed on November 1, 1963 and Kus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused, in respect of appeals under ss. 411 A(2) and 417 and on the death of an appellant in all appeals except an appeal from a sentence of fine. Therefore, what happens on the death of a complainant in a case started on a complaint has to be inferred generally from the provisions of the Code. The Code by Chapter XV, which is to be found in Part VI (Proceedings in Prosecutions), provides for the jurisdiction of a criminal court in inquiries and trials. This Chapter is divided into two Parts-A (Place of Inquiry of Trial) and B (Conditions requisite for initiation of Proceedings). Part B consists of as. 190 to 199B. Section 190 lays down, inter alia, that any Presidency Magistrate may take cognizance of any offence upon receiving a compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oundable and exclusively triable by Court of Session. They are serious offences, being punishable with imprisonment extending to 10 and 7 years respectively. The Presidency Magistrate, was not trying the case but only inquiring into it with a view to its committal to the Court of Session if the facts justified a committal. During this inquiry Kusum died. We have to determine what is the effect of the death of a complainant on an inquiry under Chapter XVIII in respect of offences requiring a complaint by the person aggrieved, after the complaint has been filed. Mr. Keswani for Vyas, in support of the abatement of the case, relied upon the analogy of s. 431 under which appeals abate and ss. 247 and 259 under which on the complainant remaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure laid down in s. 207A. With that procedure we are not concerned. The other cases are tried under the procedure as laid down in the other provisions of Chapter XVIII. Section 208 of this Chapter provides that in any proceeding instituted otherwise than on police report the Magistrate shall when the accused appears or is brought before him, proceed to hear the complainant (if any) and take in manner hereinafter provided all such evidence as may be produced in support of the prosecution or on behalf of the accused, or as may be called for by the Magistrate. The Magistrate then hears evidence for the prosecution unless he makes an order of commitment and after recording the evidence and examining the accused (if necessary) frames a char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the section, the court cannot proceed with the inquiry unless the same condition continues to exist. In other words, because the section insists on a complaint of a person aggrieved, Mr. Keswani contends that continued presence of the person aggrieved throughout the trial is also necessary to keep the court invested with its jurisdiction except in the circumstances mentioned in the proviso and summarised above. We do not agree. The section creates a bar which has to be removed before cognizance is taken. Once the bar is removed, because the proper person has filed a complaint, the section works itself out. If any other restriction was also there the Code would have said so. Not having said so, one must treat the section as fulfilled and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which on the death of the complainant the prosecution was held to have abated. Chief among them are Ishwardas v. Emperor, (7 Cr.L.J. 290) Ramanand v. Crown (40 I.C. 1008) and Labhu v. Crown (52 I.C. 797.). The first of these cases was a prosecution for defamation and the second a trial for an offence under s. 323, Indian Penal Code. The third followed the second. The first two cases here mentioned were overruled by the Lahore High Court in Hazara Singh v. Crown(I.L.R. 2 Lah. 27.) wherein it was laid down that such cases do not necessarily abate. Mr. Keswani also relied upon several cases which arose under s. 417(3) and 476 B of the Code of Criminal Procedure in which appeals were held to have abated. We need not refer to these cases because ..... X X X X Extracts X X X X X X X X Extracts X X X X
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