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TMI Blog2024 (5) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... the same being in accordance with law thus requires no interference by this Court. This Court has observed that there are other legal heirs of deceased Swapan Guha. The learned Sessions Judge has also clearly held in his order under revision that there are other legal heirs. But as the opposite party being one of the legal heirs wishes to proceed with the case, the learned Trial Court has rightly allowed the same. The present revisional application is, thus, disposed of. - Shampa Dutt ( Paul ) , J. For the Petitioner : Mr. Amarta Ghosh ORDER 1. The present revisional application has been preferred against an order dated 27.06.2022 passed by the learned 2nd Additional District and Sessions Judge, Kakdwip, 24 Parganas (South), in connection with Criminal Appeal No. 01 of 2018, CNR No. WBSP 15000118-2018, Regd. 01/2018 under Section 138 of the Negotiable Instruments Act, thereby allowing the application for substitution preferred by the opposite party. 2. It is the case of the petitioner that the opposite party is not the sole legal heir of deceased Swapan Guha, the original complainant in the present case. In support of the said contention, a copy of an application filed in CAN 03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplaint, some other person may, with the leave of the Court, make a complaint on his or her behalf : Provided further that The complaint of Kusum was filed to remove the bar contained in this section although for the offence under s. 417 no such bar existed. The offences under ss. 493 (a man by decit causing a woman not lawfully married to him to believe that she is lawfully married to him and to cohabit with him in that belief) and 496 (a preson with fraudulent intention going through the ceremony of being married, knowing that he is not thereby lawfully married) are non-cognizable, not compoundable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frames a charge. He may, after hearing further evidence, which the accused may wish to produce (unless for reasons to be recorded, the Magistrate deems it unnecessary to do so) either discharge the accused cancelling the charge or commit him to stand his trial before the Court of Session. There is no provision about the acquittal or discharge of the accused on the failure of the complainant to attend the court. This is not an omission but a deliberate departure from the Chapters on the trial of summons and warrant cases. In such trials, on the absence of the complainant, the accused is either acquitted or discharged. The intention appears to be that the Magistrate should proceed with the inquiry because had it not been so intended, the Code would have said what would happen if the complainant remains absent. Mr. Keswani, however, contends that S. 198 provides that the cognizance of the case can only be taken on the complaint of a person aggrieved and the only exception to this general rule is where the complainant is a woman, who according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of eighteen year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eath of the complainant puts an end to the prosecution. In support of his contention Mr. Keswani has cited some cases of the High Courts in which on the death of the complainant the prosecution was held to have abated. Chief among them are Ishwardas v. Emperor, (1) Ramanand v. Crown (2) and Labhu v. Crown (3). The first of these cases was a prosecution for defamation and the second a trial for an offence under s. 323, Penal Code, 1860. The third followed the second. The first two cases here mentioned were overruled by the Lahore High Court in Hazara Singh v. Crown(4) 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 they arose under different circumstances and were certainly not inquiries with a view to committal under Chapter XVIII of the Code. Mr. Hathi, who appeared on behalf of the State of Maharashtra, drew our attention to many later cases in which it has been held (dissenting from the cases relied upon by Mr. Keswani) that a criminal complaint does not necessaril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prosecution has to be obtained from the Magistrate inquiring into or trying a case. The Magistrate is empowered to permit 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 Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused in this Court. Though this Court allowed the appeal holding that the courts below were not justified in granting such permission since it was made by the Power of Attorney, it was held that a person other than a complainant could continue prosecution. The Court, therefore, while setting aside the orders granted liberty to the heirs of the complainant to file fresh application under Section 302 of the Code. Reference was also made to Balasaheb K. Thackeray v. Venkat @ Babru, (2006) 5 SCC 530 : JT (2006) 7 SC 44, to which one of us (C.K. Thakker, J.) was a party. In that case, V filed a complaint against the accused in the Court of Judicial Magistrate, First Class for commission of offence punishable under Section 500 read with 34 IPC. The complainant, however, died in 2005 during the pendency of the proceedings in this Court. The accused, therefore, made an application under Section 256 of the Code for dismissal of the complaint on the ground of death of complainant. Legal heirs of the complainant submitted that they would make an application before the Trial Court where the case was pending as the accused had approached this Court against an interim order and the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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