MANU/KA/0555/2001 Equivalent Citation: 2002CivilCC539, [2003]115CompCas770(Kar), ILR2001KAR5401, 2002(1)KarLJ370, 2001(4)KCCR2817 IN THE HIGH COURT OF KARNATAKA AT BANGALORE Criminal Revision

Petition Nos. 909 and 910 of 1998 Decided On: 10.08.2001 Appellants: Jimmy Jahangir Madan Vs. Respondent: Bolly Cariyappa Hindley by L.Rs Hon'ble Judges: H.N. Narayan and Manjula Chellur, JJ. Counsels: For Appellant/Petitioner/Plaintiff: Kumar and Kumar, Advs. For Respondents/Defendant: Cariappa andCompany, Advs. Supreme Court Status: Judgment challenged vide MANU/SC/0946/2004 dated: 04.11.200 Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Code of Criminal Procedure, 1973 - Sections 198, 200, 256, 302(1) and 302(2); Negotiable Instruments Act, 1881 - Sections 138 and 142; Karnataka High Court Act - Section 8; Indian Succession Act - Sections 213 and 214; Indian Penal Code, 1860 - Sections 493, 495 and 496 Cases Referred: S. Reddappa v. M. Vijaya, 1997(1) Kar. L.J. 291; Abdul Rehman Mahomed Yusuf v. Mahomed Haji Ahmad Agbotwala and Anr., AIR 1960 SC 82, 1960 Cri. L.J. 158 (SC); Ashwin Nanubhai Vyas v. State of Maharashtra and Anr., AIR 1967 SC 983, 1967 Cri. L.J. 946 (SC); A. Sambandam and Anr. v. Natesan by power agent S. Kuppuswami Padayachi, AIR 1966 Mad. 183;Associated Cement Company Ltd. v. Keshvanand, AIR 1998 SC 596, 1998 Cri. L.J. 856 (SC), (1998)1 SCC 687; T.C. Mathai and Anr. v. District and Sessions Judge, Thiruvananthapuram 1999 Cri. L.J. 2092 (SC), AIR 1999 SC 1385, (1999)3 SCC 614; Maddipatta Govindaiah Naidu v. Galakaluri Kamalamma and Anr., 1984 Cri. L.J. 1326 (A.P.); Goutam Ranjan Basu v. Shanta Mukherjee, 1995 Cri. L.J. 1131 (Cal.); T.N. Jayarajan v. Jayarajan, 1992(3) Crimes 666 (Ker.); Ruby Leather Exports v. K. Venue, Rep. by Vandana Chemicals, III-1994(1) 820 (Mad.);Hamsa v. Ibrahim, 1994(1) Crimes 395 (Ker.); Subbanna Hegde and Ors. v. Dyavappa Gowda, 1980(1) Kar. L.J. 384; Raxaben and Ors. v. State of Gujarat and Ors., 1992 Cri. L.J. 2446 Overruled / Jimmy Jahangir Madan Vs. LRs. (MANU/SC/0946/20040) Disposition: Revisions disposed of Reversed Cariyappa Hindley by: by

Bolly

(Dead)

Case

Note:

Criminal continuation of prosecution Section 142 of Negotiable Instruments Act, 1881 and Section 302 (2) of Criminal Procedure Code, 1973 - in proceeding initiated under Section 142 on death of complainant whether any other person could be permitted to prosecute complaint and under what provisions of Code Court observed that probate not necessary to prosecute criminal complaint Court held that in proceeding initiated under Section 142 on death of complainant L.Rs or their agents or power of attorney holder could be permitted to prosecute complaint under Section 302 (2).

ORDER H.N. Narayan, J. 1. This reference is made under Section 8 of the Karnataka High Court Act by His Lordship Justice S.R. Bannurmath for deciding three questions formulated by him in view of the law of general importance involved in the reference. The Hon'ble Chief Justice has placed this matter before this Bench for appropriate orders. 2. The questions which are referred for our consideration are: (1) In a proceeding, initiated under Section 142 of the Negotiable Instruments Act, on the death of the complainant, whether any other person could be permitted to prosecute the complaint and under what provisions of Criminal Procedure Code? (2) If it is held that any person could be permitted to prosecute the complaint who is the competent person who could be permitted to prosecute the complaint? (3) Whether that person has to prosecute the complaint personally or whether he could be permitted to prosecute the complaint through a power of attorney holder? 3. These questions arise in the backdrop of certain facts which came up for consideration in the said revisions. One Mrs. Bolly Cariappa Hindley, an Indian Christian presented a complaint under Section 200 of the Criminal Procedure Code against the accused persons in the Court of VI Additional Chief Metropolitan Magistrate, Bangalore, initiating proceedings for an offence punishable under Section 138 of the Negotiable Instruments Act (the Act for short). The learned Magistrate has taken cognizance of the offence alleged in the complaint. The complainant died during the pendency of the proceedings. Her son and daughter viz., respondents herein who are presently staying in United States of America through their general power of attorney holder filed an application under the provisions of Section 302(1) of the Criminal Procedure Code seeking permission to conduct the prosecution initiated by the deceased complainant. This application was opposed by the petitioner-accused inter alia contending that the application is not maintainable; that the provisions of Section 302 deal with the prosecution to be conducted by any person other than the police officer and the present criminal proceeding not being of such nature, the application itself is not maintainable. This proceeding initiated by the complainant for the offence under Section 138 of the Act is the personal litigation and the present applicants cannot come on record as legal representatives, one like under Civil Procedure Code. The complainant being a Christian is governed by the Indian Succession Act and in the absence of probate in the matter, the respondents cannot come on record. At any rate the present application filed by the general power of attorney holder of the applicants itself is not maintainable even if it is held that the applicants are entitled to prosecute the case. The learned Magistrate has rejected all

these contentions and allowed the application filed by the respondents, the legality of which is questioned before the learned Single Judge in these revisions. 4. Similar contentions were canvassed for consideration before the learned Single Judge. It is contended that the application is not filed under Section 302(2) of the Criminal Procedure Code, and the present application filed under Section 302(1) of the Criminal Procedure Code is not maintainable. 5. The respondents refuted these contentions contending that it was permissible for the respondents by virtue of Section 302(2) of the Criminal Procedure Code to seek permission of the Magistrate to prosecute the case further; moreover they are not strangers but the son and daughter of the complainant and they have subsisting interest in the property in respect of which the petitioner had issued cheque which came to be dishonoured. Learned Counsels on both sides relied upon a few decisions in support of their respective contentions. It is in this background the learned Single Judge expressed certain doubts which according to him are not answered in S. Reddappa v. M. Vijaya. It is held in Reddappa's case, supra, that in a proceeding under Section 138 of the Act, the death of the complainant does not ipso facto terminate the criminal proceedings. The questions posed by the learned Single Judge in this revision are, who is the fit and proper person to prosecute and what is the criteria for the same. The learned Judge has posed the questions specially in view of the fact that the respondents are Christians who are basing their legacy on the basis of a Will. The Will is not probated as required under Sections 213 and 214 of the Indian Succes- sion Act and they have come on record to prosecute the case not directly, but through their general power of attorney holder and therefore, whether it is proper for the general power of attorney holder to prosecute the case on behalf of the legal representatives of the respondents in a case of this nature. 6. We have heard the arguments of Sri Srinivas Raghavan for the petitioner and Sri A.H. Bhagawan and M/s. Cariappa and Associates for the respondents. 7. Section 142(a) of the N.I. Act provides that no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under Section 138, except on a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. The first contention of the learned Counsel for the petitioner is based upon the fact that the complaint of this nature can only be initiated in writing, by the payee or, as the case may be, the holder in due course of the cheque and it is a personal complaint. There is no provision in the N.I. Act, 1988 to bring on record any person after the death of the complainant to prosecute the complaint. There is also no such provision in the Code of Criminal Procedure. 7-A. Similar provision is noticed in the Criminal Procedure Code under Section 198. The proviso to Section 198 of the Criminal Procedure Code suggests certain exceptions as Section 198of the Code prohibits the concerned Magistrate to take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence. Hence, Section 198 imposes a prohibition on the cognizance with an exception and places a limitation on general rule that any person can set the criminal law in motion. However, it is observed by the Supreme Court in Abdul Rehman Mahomed Yusuf v. Mahomed Haji Ahmad Agbotwala and Anr., that it is limited only to offences under Chapter XX of the Indian Penal Code, i.e., offences relating to marriage. But no such exceptions are found in Section 142 of the N.I. Act. It is in the absence of such proviso or exceptions to the Statute which has give rise to certain contentions. The question of this nature arising under the Code came up for consideration before the Apex Court in Ashwin Nanubhai Vyas v. State of Maharashtra and Anr. In that case a private complaint was filed by the wife of the accused alleging offences punishable under Section 493 and 496 of the Indian Penal Code which were exclusively triable by the Court of Sessions. The accused entered appearance and disputed the marriage. During the pendency of the proceedings, the complainant died of heart attack. Her mother applied to the Court for substitution as a fit and proper complainant and expressed her willingness to act as a

complainant and to continue the proceedings. That application was strongly resisted by the accused on the ground that only the aggrieved person could be the complainant and on the death of the complainant, the complaint must be treated as abated. The Presidency Magistrate who heard the arguments, rejected the said application and permitted the complainant's mother to continue the prosecution. An application for revision was filed in the High Court of Bombay which was also rejected. The Supreme Court in the appeal disagreeing with the contentions, that the section insists on a complaint of a person aggrieved, that continued presence of the person aggrieved throughout the trial is also necessary to keep the Court invested with the jurisdiction except in the circumstances mentioned in the proviso, held as under: "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 worked out. There is nothing in the Code or in Chapter XVIII which says what, if any, consequence would follow if the complainant remains absent at any subsequent hearing after filing the complaint. In this respect Chapter XVIII is distinctly dissimilar to the chapters dealing with the trial of summons and warrant cases where it is specifically provided what consequence follows on the absence of the complaint". While rebutting the further contention of the Counsel for the accused that the Presidency Magistrate has erroneously permitted a substitution of a new complainant which is not provided in the Code which warrants the substitution of one complainant for another, the Apex Court held as under: "It is true that the Presidency Magistrate has used the word 'substitute' but that is not the effect of the order. What the Presidency Magistrate has done is to allow the mother to act as the complainant to continue the prosecution. This power was undoubtedly possessed by the Presidency Magistrate because of Section 495 of the Code by which Courts are empowered (with some exceptions) to authorise the conduct of prosecution by any person. The words 'any person' would indubitably include the mother of the complainant in a case such as this. Section 198 itself contemplates that a complaint may be made by a person other than the person aggrieved and there seems to us no valid reason why in such a serious case we should hold that the death of the complainant puts an end to the prosecution". Hence, there is further contention that a criminal complaint does not necessarily abate on the death of the complainant even in those cases where the making of the complaint by the person aggrieved is made a condition precedent by the Code. Elaborating the discussion on this question, the Apex Court observed as under: "We need not analyse those cases because, in our opinion, unless the Code itself says what is to happen, the power of the Court to substitute another prosecution agency (subject to such restrictions as may be found) under Section 495 of the Code of Criminal Procedure is always available". 8. Having considered the catena of decisions on this question, the Apex Court further held as under: "The later view is distinctly in favour of allowing the prosecution to continue except in those cases where the Code itself says that on the absence of the complainant the accused must be either acquitted or discharged. The present is not one of those cases and in our judgment the Presidency Magistrate was right in proceeding with the inquiry by allowing the mother to carry on the prosecution, and under Section 495 the mother may continue the prosecution herself or through a pleader. We see no reason why we should be astute to find a lacuna in the procedural law by which the trial of such important cases would be stultified by the death of a complainant when all that the Section198 requires is the removal of the bar".

Though in use Section 142 of the N.I. Act is not the same as Section 198 of the Criminal Procedure Code the judgment refers to this very contention viz., whether the appropriate substitute can continue and prosecute the complaint after the death of the complainant. 9. Reliance is placed by the learned Counsel for the petitioners to a judgment of the Madras High Court in A. Sambandam and Anr. v. G. Natesan by power agent S. Kuppuswami Padayachi. That was a case where a complaint was instituted by the power of attorney holder as agent of the husband alleging offences punishable under Sections 497 and 498 of the IPC and requested the Magistrate to take cognizance which was refused. The Madras High Court upheld the order of the Magistrate. 10. In Associated Cement Company Limited v. Keshvanand, this question is not strongly raised in that case before the Supreme Court and therefore, the decision has no bearing on the facts of this case. The Supreme Court held in that case that provisions of Section 256 of the Criminal Procedure Code is applicable even where complainant is Company or any other juristic person and the discretion as to whether personal attendance of complaint should be dispensed with or not has to be exercised judicially. The decision rendered by the Supreme Court in T.C. Mathai and Anr. v. District and Sessions Judge, Thiruvananthapuram, relied on by the learned Counsel for the petitioners has also no bearing on this question. It is a case where an agent who is power of attorney holder cannot become a "pleader" for the party in criminal proceedings unless the party secures permission from the Court to appoint him to act in such proceedings. 11. In Maddipatta Govindaiah Naidu v. Galakaluri Kamalamma and Anr., the learned Single Judge of Andhra Pradesh held that criminal proceedings legally instituted do not terminate or abate merely on the death of the complainant, the cause of action for civil action bears no analogy to complaints of crime. Similar is the opinion expressed by the Calcutta High Court in Goutam Ranjan Basu v. Shanta Mukherjee. In T.N. Jayarajan v. Jayarajan, the Kerala High Court considered the scope and purport of Section 256 of the Code in a case arising out of the complaint for an offence under Section 138 of the Act. It held that Sub-section (2) of Section 302 is intended to achieve this objective, it cannot be held that the Magistrate has no option but to acquit the accused when the complainant is dead. In other words, in appropriate cases, the Magistrate can grant permission to the son of the deceased complainant to proceed with the complaint. 12. The Madras High Court in Ruby Leather Exports v. K. Venue, Rep. by Vandana Chemicals, not only considered some of the contentions which have academic interest but also answers certain questions raised in this case. Questions which came up for consideration before the Madras High Court in that case were whether the power of attorney agent of the payee or the holder in the due course of the cheque will be competent to make a complaint in writing under Section 142(a) of the Negotiable Instruments Act, to facilitate valid cognizance being taken by the Magistrate and whether power of attorney executed by the wife, payee or holder in due course in favour of her husband to file the complaint is maintainable. The other questions which are canvassed and decided are not relevant for our purpose. The first question is answered at para 30 of the judgment which reads as under: "The answer to the question posed, is that a power of Attorney Agent of the payee or the holder in due course of the cheque, will be competent to make a complaint in writing under Section 142(a) of the Negotiable Instruments Act, to facilitate valid cognizance being taken by the Magistrate. It makes no difference, if the power of attorney is executed by one individual in favour of another or executed by a company in favour of a particular person. This verdict, of competency of a power of attorney, to prefer a complaint on behalf of the payee or holder in due course of the cheque, to be taken cognizance of, will not preclude the accused from raising any valid defence open to them under law, including the validity of the power of attorney. I am not in these batch of cases, deciding whether a person authorised in writing by a payee or the

holder in due course (individual or a company would suffice to take cognizance, for that issue does not arise directly in these petitions". The second question is answered at para 38 of the judgment homing that the power of attorney agent can competently prosecute under Section 142(a) of the Act. His Lordship Justice K.T. Thomas in Hamsa v. Ibrahim, in fact answered all the doubts raised in this reference. The case before the Kerala High Court in Hamsa's case, supra, was also a complaint regarding bouncing of cheque and the question whether the power of attorney holder of the payee of cheque in question can file and prosecute the complaint has been considered. It is held at para 10 as under: "If a construction is made to the effect that no such complaint as envisaged in Section 142 of the N.I. Act can be made by a power of attorney holder on behalf of the payee or holder in due course, its consequence is the following: Under Clause (b) of the proviso to Section 138 demand for payment should be made in writing within 15 days of receipt of information regarding dishonour of cheque. Under Section 142 the complaint should be made within one month of the date on which the cause of action arose. If the payee or holder in due course falls ill before the expiry of the said period or if he has to leave the station due to unavoidable reasons the cause of action would die out as the complaint cannot be filed by an agent or a power of attorney holder. It would not be in the interest of justice to construe the provision as containing a restriction that the complaint should be made by the payee or the holder in due course (as the case may be) "personally" ". Thus the Madras High Court in M/s. Ruby Leather Exports case, supra, and Kerala High Court in Hamsa's case, supra, have in fact permitted even a power of attorney or his agent to file the complaint under Section 142(a) of the N.I. Act and there is no restriction or bar for the Magistrate to take cognizance upon such presentation. This is insofar as taking cognizance of an offence on presentation not necessarily by the person named therein in the Act. 13. The precise question which needs consideration is after the cognizance of the offence is taken by the Magistrate, whether the complaint abates on the death of the complainant. It is true that there is no specific provision in the N.I. Act. We have to fall back upon the Code of Criminal Procedure. The general provision covering this circumstance is provided under Section 302(2) of the Criminal Procedure Code which empowers any person taking prosecution. Section 302(2) permits any person taking prosecution, may do so personally or by a pleader. However, it is only a procedural provision which enables a person to seek relief in the hands of the Magistrate though it has no reference to the prosecution of the complaint after the death of the complainant. 14. This very question came up for consideration before the learned Single Judge of this Court in S. Reddappa's case, supra. That was a case whereupon the death of the complainant, the son was permitted to prosecute the complaint. Contentions of similar nature were also urged before the learned Single Judge for consideration. The learned Single Judge upon reference to three earlier decisions of this Court and also the rulings of Andhra Pradesh, Kerala and Calcutta High Courts held that the death of a complainant in a case of non-cognizable offence does not abate the prosecution and it is within the discretion of the trying Magistrate in a proper case to allow the complainant to continue by a proper and fit complainant, if the latter is willing. It pointed out in that decision that the decision rendered in Subbanna Hegde and Ors. v. Dyavappa Gowda, the three decisions of the Court have not been brought to the notice of the Court and therefore the object and purport of proviso of Sub-section (1) of Section 302 has not been considered. The learned Single Judge has not specifically answered the question as to who is competent to prosecute the complaint after the death of the complainant and what is the consideration and who is that competent person who could be permitted to prosecute the complaint and whether such person can prosecute the complaint personally or through power of attorney. It is true that in S. Reddappa's case, supra, there is no ready made answer to these questions. But the

learned Single Judge in the said case proceeded to accept the law laid down in A. Sambandam's case, supra and Raxaben and Ors. v. State of Gujarat and Ors. The reference Court has also referred to the rights of the parties under Indian Succession Act as they are Indian Christians who claimed rights under the Will which was not probated and they have also not prosecuted the case directly but through general power of attorney holder. 15. In our opinion, a probate is not necessary to prosecute a criminal complaint as L.Rs of the complainant. The question is who is competent to prosecute the complaint after the death of the complainant and whether the L.Rs are entitled to prosecute the complaint. In these cases, applications were made by the power of attorney under Section 302(1) of the Criminal Procedure Code only and the main objection was that the application was not filed under Section 302(2) of the Criminal Procedure Code. After perusal of various provisions of the Code and Section 142 of the N.I. Act, we answer the points referred to us as follows: (1) The complaint filed under Section 200 of the Criminal Procedure Code or under Section 142 of the N.I. Act would not ipso facto terminate or abate upon the death of the complainant. (2) In a proceeding initiated under Section 142 of the N.I. Act, on the death of the complainant, his L.Rs, their agents or power of attorney holder could be permitted to prosecute the complaint under Section 302(2) of the Criminal Procedure Code or under Section 142 of the N.I. Act. (3) An agent or a power of attorney holder of payee of cheque or holder in due course may be permitted to prosecute the com- plaint unless there is a specific bar in the Code for such persons to lodge the complaint. But once the complaint is filed by the aggrieved persons, the prosecution can be continued by the interested persons or persons named above. 16. Before parting with this case, we may add that no provision of law should be construed so as to defeat the purpose of the Act on technicalities. It is desirable in a case of this nature for L.Rs of the deceased to come on record and prosecute the complaint in person, if possible. In the event of any disability, they may seek the permission of the Court to prosecute such complaint through their agent or power of attorney. If such applications are made, the Criminal Courts shall consider it on merits and pass appropriate orders as required under Section302(2) of the Criminal Procedure Code or under Section 142 of the N.I. Act. 17. These revisions stand disposed of accordingly. The learned Trial Judge is directed to dispose of these matters as expeditiously as possible, but not later than six months from the date of receipt of a copy of this order.

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MANU/GH/0238/2004
Equivalent Citation: 2005(2)ALD(Cri)14, 2005CriLJ599, 2004(3)GLT465 IN THE HIGH COURT OF GAUHATI Criminal Revn. No. 130 of 2001 Decided On: 15.09.2004 Appellants: Kushal Kumar Talukdar Vs. Respondent: Chandra Prasad Goenka Hon'ble Judges:

I.A. Ansari, J.
Counsels: For Appellant/Petitioner/Plaintiff:

Z. Kamar, Amicus Curie

For Respondents/Defendant: Subject: Criminal

F.H. Laskar, Addl. Public Prosecutor

Catch Words Mentioned IN

Acts/Rules/Orders: Criminal Procedure Code (CrPC), 1974 - Sections 256 and 302; Negotiable Instruments Act, 1881 - Section 138 Cases Referred: Ramdeo Tilokchand Agarwal v. Lalu Natha, AIR 1937 Nag 65; Bidhu Bhushan Sen v. Mofizuddin Ahmed, (1938) 42 Cal WN 1263; Ashwin Nanu Bhai Vyas v. State of Maharashtra, AIR 1967 SC 983; Raviselvam v. Nalini Vijaya Kumar, (1999) 4 Crimes 209 (Mad); Subbanna Hegde v. Dyavappa Gowda, 1980 Cri LJ 1405 (Kant); Maddipatta Govindiah Naidu v. Yelakaluri Kamalamma, 1984 Cri LJ 1326 (Andh Pra); S. Reddappa v. Vijaya M., 1997 Cri LJ 98 (Kant); Ajay Kumar Agarwala v. State of Jharkhand, 2003 Cri LJ 3088, 2003 AIR-Jhar HCR 863; Samuel Thomas v. Unnikrishnan, Cri. A. 269, 1991 (Ker) (sic); Ashok Kumar v. Abdul Latif, 1989 Cri LJ 1856 (J & K); Helen C. Pinheiro v. Kamaxi Steel Products, 2000 Cri LJ 1622 (Bombay);Associated Cement Co. Ltd. v. Keshavananda, AIR 1998 SC 596; Om Saran v. Mrs. Satya Dhawan, 1990 Cri LJ 1619; Anil G. Shah v. I.J. Chattaranjan Co., (1998) 2 BC 108 (Guj), 1998 Cri LJ 3870 Citing Reference:

Ramdeo Tilokchand Agarwal v. Lalu Natha, Bidhu Bhushan Sen v. Mofizuddin Ahmed, Ashwin Nanu Bhai Vyas v. State of Maharashtra,

MANU/NA/0169/1936
Discussed

Discussed

MANU/SC/0101/1966

Relied On Discussed Discussed Mentioned Mentioned Mentioned Mentioned Mentioned Mentioned

Raviselvam v. Nalini Vijaya Kumar, Subbanna Hegde v. Dyavappa Gowda, Maddipatta Govindiah Naidu v. Yelakaluri Kamalamma, S. Reddappa v. Vijaya M., Ajay Kumar Agarwala v. State of Jharkhand, Samuel Thomas v. Unnikrishnan, Cri. A. 269, Ashok Kumar v. Abdul Latif, Helen C. Pinheiro v. Kamaxi Steel Products, Associated Cement Co. Ltd. v. Keshavananda,

MANU/SC/0894/1998
Mentioned Mentioned

Mentioned

Om Saran v. Mrs. Satya Dhawan, Anil G. Shah v. I.J. Chattaranjan Co.,

Disposition: Petition dismissed Case Note: Criminal- Sections 256 and 302 of Criminal Procedure Code (CrPC), 1973- Section 138,142 Negotiable Instruments Act, 1881- Present revision petition substituting son of deceased complainant to conduct prosecution- Whether impugned order substituting opposite party, who is son of deceased, as complainant, in complaint case which arose out of complaint lodged for prosecution of accused-petitioner under Section 138 read with Section 142 of N.I. Act,

legally sustainable under Section 256 of CrPC-Held- While dealing with present case, necessary to bear in mind that no provision for substitution of deceased complainant under Cr. P.C., but Magistrate has power under Section 302, Cr. P.C. to permit any one to conduct prosecution- Hence, when opposite party herein, as son of deceasedcomplainant, came forward to continue to proceed with complaint, no impediment on part of Court, in allowing son of deceased-complainant to represent complainant- Though Magistrate substituted accused-opposite party herein in place of deceased-complainant, impugned order has effect of allowing opposite party to represent deceasedcomplainant in terms of Section 302, Cr. P.C- What crystallizes from above discussion is that in case for proving ingredients of offence allegedly committed by accused-petitioner, presence of complainant not necessary- In such situation, when son of complainant, i.e., opposite party herein came forward to conduct prosecution, no impediment under law, in light of provisions of Section 256, Cr. P.C. read with Section 302, Cr.P.C, to permit opposite party herein, as son of deceased-complainant, to represent complainant and to allow him to appoint pleader of choice to represent him in case-Revision petition dismissed. ORDER I.A. Ansari, J. 1. Based on a complaint lodged by Shri Inder Chand Goenka (since de ceased) for prosecution of the present petitioner, namely, Shri Kushal Kumar Talukdar as accused under Section 138read with Section 142 of the Negotiable Instruments Act (herein after referred to as "the N.I. Act"), C.R. Case No. 3002/2000 was registered in the Court of the Chief Judicial Magistrate, Kamrup, Guwahati. 2. In course of time, in pursuance of the summons issued, the accused-petitioner appeared, through his counsel, in the said complaint case. While the Complaint Case No. 3002(C)/2000 aforementioned was pending in the Court of the Chief Judicial Magistrate, Kamrup, Guwahati, the complainant, Shri Inder Chand Goenka, died on 18-7-2000 and his only son, namely, Shri Chandra Prasad Goenka filed a petition, on 18-9-2000, for substituting him as a complainant in place of his deceased-father. This prayer was allowed by the learned Court below by its order, dated 18-9-2000, where upon the accused-petitioner filed an application, on 8-11-2000, for his discharge or acquittal in terms of the provisions of Section 256, Cr. P.C. This application was fixed for hearing on 13-11-2000; but on that day, the accused-petitioner was absent. As the accused-petitioner remained repeatedly absent, the learned Court below passed an order, on 22-2-2001, directing issuance of warrant of arrest against him. 3. Thereafter, the accused-petitioner made this application under Section 401/397 read with Section 482 of the Cr. P.C. impugning the order, dated 18-9-2000, aforementioned, whereby the prayer of the opposite party herein, namely, Shri Chandra Prasad Goenka, (i.e. the son of the said deceased), to be substituted, in place of his father, as complainant, in the case at hand, had been allowed, and also the order, dated 22-2-2001, aforementioned, whereby direction for issuance of warrant of arrest against the accused-petitioner was given. 4. None has appeared on behalf of the parties. However, Mr. Z. Kamar, learned counsel, was appointed and heard as Amicus Curiae. Also heard Mr. F. H. Laskar, learned Additional Public Prosecutor, for the State of Assam. 5. The question, which has been raised by the accused-petitioner is this : Whether the impugned order substituting the opposite party herein, who is the son of the said deceased, as complainant, in the complaint case aforementioned, which arose out of a complaint lodged for prosecution of the accused-petitioner under Section sustainable under Section

256 of the Code of Criminal Procedure?

138 read with Section 142 of the N.I. Act, is legally

6. The above question, in turn, brings us to a more fundamental question and the question is this: Whether a complaint lodged with a Magistrate, which discloses commission of an offence triable as a summons case, shall abate on the death of the complainant and if not, when and in what circumstances, such a complaint, even on the death of the complainant, he allowed to proceed?. 7. In view of the fact that divergent views have been expressed on the above aspects of law by different High Courts and in view also of the fact that no reported decision of this Court, on the above aspect of law, could be brought to the notice of this Court, it is desirable that the correct position of law governing the question posed above is as curtained. In this regard, it is important to bear in mind that in a trial of summons procedure case, it is Section of the complainant during trial.

256, Cr. P.C. which comes into play in the case of death

8. While answering the above question, it is important to bear in mind that the law aims at rendering substantive justice. Hence, its interpretation too shall be aimed at advancing the course of justice and not scuttling the legal proceedings on technicalities unless the clear legislative intendment is otherwise.

9. Before entering into the discussion of the scope of Section

today, is an outcome of several material changes introduced into Section Section

247, as it, originally, appeared in the old Code i.e., in the Code of Criminal Procedure, 1809, read as follows:

256, Cr.P.C, it is pertinent to note that Section 256, as it exists 247 of the Code of Criminal Procedure, 1809.

"Section 247. Non-appearance of complainant.- 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, not with standing 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 complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance and proceed with the case."

10. By the Amendment Act of 26 of 1955, the above proviso to Section

247 was amended as follows :

"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."

11. From a bare reading of the provisions of Section clear that it is only the proviso to Section

247, Cr. P.C. and as it stood after the Amendment Act 26 of 1955, it is 247, which underwent some change.

12. A careful reading of Section 247 reveals that this section, as it stood in the Code of Criminal Procedure, 1809, spoke only of the consequences of the non-appearance of the complainant and not specifically as regards the death of the complainant and laid down that if the summons had been issued on a complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing might have been adjourned, the complain ant did not appear, the Magistrate

shall, notwithstanding anything hereinbefore contained, acquit the accused unless, for some reason, he found it proper to adjourn the hearing of the case to some other day.

247 that it envisaged the cases of non-appearance of the complainant after the summons had been issued for appearance of the accused. That is to say, Section 247 dealt with a stage, when
13. It also follows from the above reading of Section

cognizance of the offences had already been taken by the Magistrate and the process had been issued for appearance of the accused and/or at any stage subsequent thereto, and laid down that If the complainant did not appear, the Magistrate was bound to acquit the accused un less, for some reason to be recorded, he thought it proper to adjourn the hearing of the case to some other day. 14. The proviso to Section 247 as it, originally, stood i.e. before it underwent change by virtue of the Amendment Act 26 of 1955, shows that if the complainant was a public servant and his personal attendance was not required, the Magistrate was given the discretion to dispense with his attendance and proceed with the case. The scope of this proviso was widened with the amendment Introduced thereto by the Amendment Act of 1955 inasmuch as, while the Magistrate could have, under the old proviso, dispensed with the attendance of the complainant and proceeded with the case only if the complain ant was a public servant and his personal attendance was not required, the amendment to the proviso vested in the Magistrate the discretion to dispense with the attendance of the complainant not only when the complainant was a public servant, but also when the complainant was not a public servant, the condition precedent for the exercise of such discretion, however, being the formation of an opinion by the Magistrate that the presence of the complainant was not necessary. 15. What emerges from the above discussion is that if the proviso was kept excluded, then, Section 247, in the Code of Criminal Procedure, 1809, empowered the Magistrate, if he thought proper, to merely adjourn the hearing of the case to some other day, if the summons had been issued for the appearance of the accused or on any day subsequent" thereto. The proviso, however, introduced an exception to the power of merely adjourning the hearing of the case and gave the Magistrate the discretion to dispense with the presence of the complain ant altogether and proceed with the case if the complainant was a public servant and his personal attendance was, in the opinion of the Magistrate, not required. By the Amendment Act 26 of 1955, the proviso widened the discretion of the Magistrate and laid down that if, in the opinion of the Magistrate, the personal attendance of the complainant was not necessary, the Magistrate could dispense with the attendance of such a complainant and proceed with the case irrespective of the fact whether the complain ant was a public servant or not. 16. As divergent views were being ex pressed by the High Courts on the question as to whether a complainant's death brings a complete end to the proceedings in a summons procedure case, the Law Commission, in its 41st report, observed and recommended as follows : "A question has arisen whether the complainant's death ends the proceedings in a summons case and we find that different views have been expressed on this question. As a matter of policy, we think the answer should depend on the nature of the case and the stage of the proceedings at which death occurs. It is impracticable to detail the various situations that may arise and the considerations that may have to be weighed. We think, in the circumstances, that the decision should be left to the judicial discretion of the Court, and, the legal provision need only be that death and absence stand on the same footing. We trust this will in practice work satisfactorily." 17. The above observations and recommendations of the Law Commission clearly indicate that the Law Commission, on being confronted with a situation, where the High Courts were expressing conflicting views on the question as to whether the complainant's death ends the proceeding in a summons case, realised that the answer to this question would really depend on the nature of the case and also the stage of the proceeding and since it was not possible to catalogue various situations in which the question as to whether the complaint case shall proceed or not may arise, the Law Com mission recommended that the provisions be made in the law to give an indication that the absence of the complainant, on account of his death and or on account of any other reason, stands on the same footing. In short, the Law Commission's view was that there is no difference in the absence of a complainant on account of his death and in the absence of the complainant for reasons other than his death.

18. However, notwithstanding the above recommendations, Section Procedure, 1973. reads as follows :

256, which finally emerged under the Code of Criminal

"256. Non-appearance or death of complainant.- (1) If the summons has been issued on complaint, and on 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 it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or 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. (2) The provisions of Sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."

19. From a bare reading of Section

cognizance has been taken by the Magistrate and summons has already been issued to the accused. Hence, Section not apply to a case in which the complainant dies before cognizance is taken and the summons is issued.

256, it clearly transpires that Section 256, same as Section 247, comes into play after 256 does

20. A careful reading of Section 256, as it stands in the Code of Criminal Procedure, 1973, makes it clear that this section deals with the consequences of the absence of the complainant on account of his death as well as on account of any other reason. However, before answering the question as to whether the death of the complainant will bring a complete end to the trial of an accused in a summons case and force the Magistrate to acquit him and/or the question as to whether the Magistrate has the power to allow the deceased-complainant to be substituted or represented by any one, it is of immense importance to

256, which makes provisions for application of the provisions of Sub-section (1) of 256 to the cases of non-appearance of the complainant on account of his death. Hence, before entering into the discussion of the scope of Sub-section (2) of Section 256 and as to what it realty lays down, it is imperative, for the purpose of better appreciation of the scope and ambit of Section 256, to consider as to what Sub-section (1) of Section 256 and the proviso thereto convey. In this regard, it is necessary to take note of the changes that Sub-section (1) of Section 256 has undergone in the Code of Criminal Procedure, 1973, from what Section 247 of the Code of Criminal Procedure, 1809, had
note that it is Sub-section (2) of Section Section envisaged.

21. From a comparative reading of the provisions of Section

247 vis-a-vis Section 256(1), it is clear that

Section 256(1) lays down, same as Section 247, that if the summons had been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing might have been adjourned,

the complainant did not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused unless, for some reason, he thought proper to adjourn the hearing of the case to some other day. 22. However, while the proviso to Section 247, as the same stood after the Amendment Act 26 of 1955, vested a discretion in the Magistrate to dispense with the personal attendance of the complainant and proceed with the case if the Magistrate was of the opinion that the personal attendance of the complainant was not necessary, the proviso to Section widened the scope of the exercise of the discretion given under the proviso to Section

256(1) has further

247 inasmuch as the proviso to

Section 256(1) has, now, made possible for the Magistrate to dispense with the personal attendance of the complainant and proceed with the trial not only when, in the opinion of the Magistrate, the personal attendance of the complainant is not necessary, but also when the complainant is represented by a pleader or by an officer conducting the prosecution. 23. What emerges from the discussion held above, as a whole, is that initially, the proviso to Section 247, as it stood in the Code of Criminal Procedure, 1809, vested in the Magistrate the discretion to dispense with the personal attendance of the complainant only when the complainant was a public servant and the Magistrate was of the opinion that the personal attendance of the public servant was not required. The proviso to Section 247, as amended in the year 1955, widened the scope of this discretion of the Magistrate to dispense with the personal attendance of the complainant by laying down to the effect that the Magistrate can dispense with the personal attendance of the complainant irrespective of the fact as to whether the complainant was a public servant or not, the only limitation, however, being that the Magistrate had to form an opinion, before exercising such discretion, that in the facts and circumstances of the case, personal attendance of the complainant was not necessary. The proviso to Section 256(1) has further widened the discretion so vested in the Magistrate by making it clear that the Magistrate can dispense with the personal attendance of the complainant and proceed with the trial not only when the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, but also when the complainant is represented by a pleader or by an officer conducting the prosecution. 24. The question, therefore, which, naturally, arises is this : Is there any difference between the summons triable case, wherein the complainant is represented by a pleader, and a summons triable case, wherein the complainant is represented by an officer conducting the prosecution? 25. My quest for an answer to the above question brings me to Section 2(q), Cr. P.C., which defines the word "pleader" thus, "pleader," when used with reference to any proceeding in any Court, means a person authorized by or under any law, for the time being in force, to practise in such Court, and includes any other person appointed with the permission of the Court to act in such proceeding." 26. From a close reading of Section 2(q), Cr. P.C., it clearly transpires that the pleader means a person, who is authorised, by or under any law, to practise as. an advocate and includes a person appointed with the permission of the Court to act in such

24 read with Section 25, Cr. P.C. relates to appointment of Public Prosecutor, Addl. Public Prosecutors and 24(1) makes it clear that the appointment of Public Prosecutors and Addl. Public Prosecutors is for conducting prosecution, appeal, etc. Section 25(1) makes it clear that the appointment of Assistant Public Prosecutors is "for conducting prosecution in the Court of Magistrates." This apart, Section 301, Cr. P.C. shows that though
proceeding. Section Asstt. Public Prosecutors. Section any private person may instruct a pleader to prosecute any person in any Court, yet it is the Public Prosecutor or Assistant Public Prosecutor, who remains in charge of the case and responsible for conducting the prosecution, and the pleader, so instructed, by a private person, acts under the directions of the Prosecutor. Coupled with this, Section 301, Cr. P.C. shows that the Public Prosecutor or Assistant Public Prosecutor, in charge of a case, may appear and plead without any authority before the Court in which the trial or appeal is pending. I may, however, hasten to add here that though Section 302, Cr. P.C. empowers Magistrates to permit any person to conduct prosecution, the fact remains that if a person comes forward to conduct prosecution as a pleader appointed by the complainant, his appointment as a pleader must subsist on the day, when he is to be permitted to appear as a pleader of the complainant. 27. Thus, the scheme of the Code of Criminal Procedure shows that there is a difference between a pleader, appointed by a private person, and a person, who is appointed, in terms of Section 24 and/or Section or the Central Government for conducting the prosecution in a given case.

25, Cr.P.C, as a prosecutor by the State

28. Bearing in mind the above aspects of the matter, when I revert to the proviso to Section 256(1), it becomes abundantly clear that this proviso relates to both the contingencies, namely, when a complainant is represented by a pleader and also when a complainant is represented by an officer conducting the prosecution. While the former indicate that the complainant, who lodged the complaint, is a private individual and is represented by his own advocate, the latter shows that the complaint has been lodged in terms of Section 190(1)(a)read with Clause (a) of the first proviso to Section conducted by an officer conducting prosecution.

200 of the Cr. P.C. and is

29. One may also note that under Section 190, Cr.P.C a Magistrate may take cognizance of any offence- (a) upon receiving a complaint of facts, which constitute such offence, (b) upon a police report of such facts, (c) upon information received from any person other than a police officer or, upon his own knowledge, that such offence has been committed. However, when the complaint has been lodged by a public servant acting or purporting to act in the discharge of his official duty, the Magistrate, taking cognizance of the offence on such a complaint, need not, in terms of Clause (a) of the first proviso to Section

200,

Cr.P.C, examine the complainant and the witnesses, nor is there any necessity of holding, in terms of Section 202, Cr.P.C, an enquiry for the purpose of taking a decision as to whether process can be issued to the accused, provided, of course, that the Magistrate is, otherwise, satisfied that the contents of the complaint disclose commission of offence.

30. Turning to Sub-section (2) of Section Sub-section (1) of Section due to his death.

256, it needs to be noted that Sub-section (2) merely states that the provisions of 256 shall, so far as may be, apply also to the case, where the non-appearance of the complainant is 256 and the proviso thereto can be 256 differs,

31. The question, therefore, is as to how far the provisions of Sub-section (1) of Section

applied to a case, where the complainant is absent on account of his death and how far Sub-section (2) of Section in this regard from Sub-section (1) of Section

256?

32. While considering the above aspect of the matter, it is worth noticing that the expression "so far as may be," occurring in Sub-section (2) of Section

256, is of considerable importance, for, the expression, so used, makes it clear that the provisions

of Sub-section (1) of Section 256 including the proviso thereto, which lay down the various conditions In which the absence of the complainant, on account of reasons other than his death, may not ipso facto result into acquittal of the accused, shall be applied, to the extent possible, even when the complainant's absence is on account of his death. In other words, the provisions

of Section 256(1) and the proviso thereto do not apply, in their entirety, to a case, where the complainant, in a summons case, dies after the summons has been issued to the accused.

33. While considering the question as to how far Sub-section (2) of Section

256 differs from Sub-section (1) of Section 256,

it is of utmost importance to note that one of the powers, which the proviso to Sub-section (1) of Section 256 gives to the Magistrate is the power to dispense with the personal attendance of the complainant and proceed with the case if the complainant is represented by a pleader or by an officer conducting the prosecution? 34. The question, therefore, which, now, arises is this: If the absence of the complainant is on account of his death, can the Magistrate allow the summons case to proceed merely on the ground that the deceased-complainant is represented by his pleader or by an officer conducting the prosecution? In order to correctly appreciate the question as to whether a pleader appointed by a complainant, in a summons triable case, can continue to represent the deceased-complainant as the deceasedcomplainant's pleader, one has to understand the nature of the relationship between a party and his pleader. 35. While considering the above aspect of the matter, it is of paramount importance to note that the appointment of a pleader by a person is contractual in nature. The appointment of a pleader by a party is essentially appointment of an attorney and the vakalatnama is nothing, but a power of attorney or an authority to represent the party concerned, who may even be a complainant in a criminal case; whether the appointment of the pleader is in a criminal case or in a civil case is immaterial. I derive support for the inference, so drawn, from the decision in Ramdeo Tilokchand Agarwal v. Lalu Natha, reported in AIR 1937 Nag 65, wherein Mysore High Court, while dealing with vakalatnama, observed and held as follows : "In Stroud's Judicial Dictionary, "power of attorney" is defined as : An authority, whereby one "is set in the tune, stead or place of another" to act for him. In India, under the Stamp Act Section 2(21), a power of attorney, for the purposes of the Stamp Act, is defined in a way that excludes a vakalatnama, because it excludes a document, which carries a Court-fee stamp, but that definition, for the purposes of the Stamp Act, in my opinion, makes it quite clear that if it were not for that definition, a vakalatnama being a power of attorney, would require not only a Court-fee stamp under the Court-fees Act, but also a stamp under the Stamp Act and to avoid that double stamp, it was necessary in the Stamp Act to exclude the vakalatnama." 36. Without entering into the discussion of the question as to whether a pleader is essentially, within the meaning of Section 182 of the Contract Act, an agent of the person, who appoints him, as laid down in Bidhu Bhushan Sen v. Mofizuddin Ahmed, reported in (1938) 42 Cal WN 1263, or not, the fact remains that the appointment of a pleader by a person is contractual in nature and the fact that it is so recognised by Legislature is evident from a bare reading of Order 22, Rule 10-A of the C.P.C, which lays down as follows : "10-A. Duty of a pleader to communicate to Court death of a party.- Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and for this purpose, the contract between a pleader and the deceased party shall be deemed to subsist." 37. Thus, in a civil case, a pleader's appointment ends on the death of the person, who appointed him except to the extent as Order 22, Rule 10-A of the C.P.C. specifically permits. No wonder, therefore, that when the appellant dies during pendency of even a civil appeal, the power given by him to his pleader comes to an end and ceases to be in force. (See 1931 (32) P LR 399(DB)). The only exception, however, is what Order 22, Rule 10-A of the C.P.C. provides for, namely, that the contract between the pleader and the deceased party "shall be deemed to subsist" only for the purpose of informing the Court that the party represented by him has died. Thus, the appointment of a pleader by a private person is nothing, but a kind of contract and this contract ends with the death of the "person,' who had appointed the pleader. 38. In criminal cases too, same as in the Civil Cases, the relationship of the complainant with his pleader as the client of the latter comes to an end on the death of the complainant. Hence, when the complainant dies, his pleader retains no authority and cannot, therefore, be allowed to continue to proceed with the complaint in the capacity of the pleader of the deceasedcomplainant. 39. What logically follows from the above discussion is that when a complainant dies, the Magistrate cannot proceed with the case merely on the ground that the pleader, appointed by the deceased-complainant, is present; but even in such a case, the Magistrate may, for the ends of justice, allow a pleader, if the pleader is so willing, to represent the deceased-complainant in terms of Section 302, Cr. P.C., for, Section 302, Cr. P.C. empowers the Magistrate to permit any person to conduct the prosecution and the words "any person" would obviously include even a pleader (See Ashwin Nanu Bhai Vyas v. State of Maharashtra, reported in (AIR 1967 SC 983). However, the appearance of such a pleader, in the complaint case, would not be as a pleader of the de ceased-complainant, but as a person, who is permitted by the Magistrate to conduct the prosecution. In other words, when the pleader conducts such a prosecution, he does so on the basis of the permission given to him by the Magistrate in terms of Section 302, Cr.P.C. and not by virtue of his original appointment as pleader of the complainant, for, his appointment as a pleader of the complainant, as indicated hereinabove, ceases on the death of the complainant, In this regard, there is, as already mentioned above, no difference between the appointment of a pleader in a criminal case and civil case. However, when the prosecution is conducted by a prosecutor appointed by the Government, State or Central, the death of the complainant is immaterial and the complaint can still be proceeded with. Thus, while in the case of the former i.e. when the complainant is represented by a pleader, the appointment of the pleader ends with the death of the complainant, no such result ensues, when the complainant, in the latter case, dies and is represented by an officer conducting the prosecution. I may, of course, point out and reiterate that notwithstanding the fact that in a case, where the complainant is represented by a pleader and the complainant has died, the Magistrate may still proceed with the case by dispensing the presence of the complainant if, in the opinion of the Magistrate, personal attendance of the complainant is not necessary and may even allow the complainant's pleader to continue with the prosecution in terms of Section of the Court.

302, Cr. P.C. not as a pleader of the complainant, but as an officer

40. In short, a careful reading of Sub-section (2) of Section 256 shows that when the complainant dies, the pleader, appointed by the complainant, ceases to be pleader of the complainant and cannot be allowed to represent the complaint; whereas an officer conducting the prosecution of the case based on the complaint lodged by a public servant. continues as an officer conducting the prosecution, notwithstanding the death of the public servant as complainant can, therefore, be allowed to continue to conduct the prosecution. 41. In other words, after the summons in a complaint case has been issued, then, on the day appointed for the appearance of the accused or on any day subsequent thereto to which hearing may be adjourned, the complainant does not appear, on account of his death, the Magistrate cannot proceed with the case merely on the ground that the pleader appointed by the complainant is present to represent the complainant. However, if the complainant is represented by an officer conducting the prosecution or if the nature of the complaint is such that the personal appearance of the complainant is not necessary, the Magistrate may proceed with the case subject to what have been mentioned here in above. 42. Hence, when Sub-section (2) of Section 256 is read, in the light of the proviso to Section 256(1), it becomes abundantly clear that even when the absence of the complainant is due to his death, the Magistrate may still proceed with the

case if the Magistrate is of the opinion that the personal attendance of the complainant is not necessary or when the complainant is represented by an officer conducting the prosecution. If the Magistrate dispenses with personal attendance of the deceased complainant on the ground that his presence is not necessary, the Magistrate may permit 'any person' to conduct the prosecution. I am guided to adopt this view from the decision in Ashwin Nanu Bhai Vyas v. State of Maharashtra, reported in

MANU/SC/0101/1966.

43. Though the case of Ashwin Nanu Bhai Vyas (supra) is with regard to sessions case, the interpretation of Section 495, Cr. P.C. (old), which is, now, Section 302, Cr.P.C, still holds goods inasmuch as in this case, interpreting the words "any person," occurring in Section 495, Cr.P.C, the Apex Court observed and held as follows :"7. Mr. Keswani contends that the Presidency Magistrate has made a "substitution" of a new complainant and there is nothing in the Code which warrants the Substitution of one complainant for another. It is true that the Presidency Magistrate has used the word "Substitute" but that is not the effect of the order. What the Presidency Magistrate has done is to allow the mother to act as the complainant to continue the prosecution. This power has undoubtedly possessed by the Presidency Magistrate because of Section 495 of the Code by which Courts are empowered (with some exceptions) to authorise the conduct of prosecution by any person. The words 'any person' would indubitably include the mother of the complainant in a case such as this. Section 198 itself contemplates that a complaint may be made by a person other than the person aggrieved and there seems to us no valid reason why in such a serious case was should hold that the death of the complainant puts an end to the prosecution."

44. From what has been pointed out by the Apex Court in Ashwin Nanu Bhai Vyas

MANU/SC/0101/1966 (supra), it is

clear that though there is no provision for Substitution, Section302(1), which has, now, replaced Section 495, Cr. P.C., empowers the Court to authorise the conduct of prosecution by any person and the word "any person" would include the son of the complainant in a case of present nature. The accused-opposite party herein, being the son of the complainant, stands on the footing of "any person" as envisaged by Section 302(1), Cr. P.C. As correctly observed in Raviselvam v. Nalini Vijaya Kumar, reported in (1999) 4 Cri 209 (Mad), the endeavour must be to do justice and not to take advantage of technicalities. The urge to resort to easy way out must give way to judicial justness. 45. On an examination of all the relevant provisions of the Criminal Procedure Code, the proposition that criminal proceedings abate on the death of the complainant appears to be legally unfounded and unacceptable. Criminal proceedings, legally instituted, do not terminate or abate merely on the death of the complainant. The cause of action for civil action bears no analogy to complaints of crime. The object of Section 256, Cr. P.C. is succinctly explained by the Apex Court in Associated Cement Co. Ltd. v. Keshvanand, reported in (AIR 1998 SC 596), in the following words : "17. What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the Court on all posting days can be put to much harassment by a complainant if he does not turn up to the Court on occasions when his presence is necessary. The section, therefore, affords a protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent. Court has a duty to acquit the accused in invitum. 18. Reading the section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day, the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day, the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned, the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary, then, resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice." 46. One also cannot lose sight of the fact that the concept of locus standi has under gone considerable change an the well settled principle in criminal law is that unless, otherwise, barred by law, any person can set the law in motion. Moreover, Subsection (2) of Section 256, Criminal Procedure Code was obviously introduced with the object of ensuring that in an appropriate case, on account of death of a complainant, the proceedings do not come to an end automatically and a discretion has been vested in the Magistrate to continue with the proceeding of the case if the complainant's presence is not necessary and/or where the complaint is represented by an officer conducting the prosecution. 47. In the case of Subbanna Hegde v. Dyavappa Gowda, reported in MANU/KA/0020/1980 (Kant), Karnataka High Court has expressed the view that on the death of the complainant in a summons triable case, the complaint abates and the Magistrate must acquit the accused. For the reasons stated herein above, 1 find myself unable to agree with the view so expressed. For coming to the conclusions, which I have reached, I am fortified by the decisions in Maddipatta Govindiah Naidu v. Yelakaluri Kamalamma, reported in 1984 Cri LJ 1326 (Andh Pra); S. Reddappav. Vijaya M., reported inMANU/KA/0127/1996(Kant); Ajay Kumar Agarwala v. State of Jharkhand, reported

MANU/JH/0121/2003); Samuel Thomas v. Unnikrishnan, reported in1991 Cri. 269. (Ker) Ashok Kumar v. Abdul MANU/JK/0037/1989 (J & K); Helen C. Pinheiro v. Kamaxi Steel Products, reported in MANU/MH/1262/1999 (Bombay); Associated Cement Co. Ltd. v. Keshavananda, MANU/SC/0894/1998 (SC); Anil G. Shah v. I.J. Chattaranjan Co., reported in MANU/GJ/0013/1997 (Guj) and Ashwin Nanu Bhai Vyas v. State of Maharashtra, reported in MANU/SC/0101/1966. I may, however, hasten to add here that though some of the cases referred to hereinbefore
in Latif, reported in reflect that a summons case can be allowed to proceed merely on the ground that the appointed pleader of the deceasedcomplainant is present to represent the deceased-complainant, I may, for the reasons, which I have already indicated herein above, find it impossible to agree to such a proposition. I, therefore, lay down that a pleader appointed by a complainant ceases to be the complainant's pleader on the death of the former and cannot represent the complainant as his appointed pleader. In a case, however, in which the complainant is absent on account of his death, the Magistrate may still allow the case to proceed by allowing "any person' including a pleader to represent the complainant by invoking the provisions of Section

302, Cr. P.C.

48. There may, of course, be cases, where, on the death of the complainant, the trial may not be allowed to proceed by the Magistrate if he finds that the personal appearance of the complainant is necessary. example, if a complaint is lodged by a complainant alleging that the accused has assaulted him, then, if the sole witness is the complainant himself and he dies, not because of the assault but for some other reason, no purpose would be served in continuing with such a complaint, for, the trial would eventually end with the acquittal of the accused on account of complete absence of evidence. But supposing that the complainant dies after his evidence has been recorded and he has been put to cross-examination too, then, the trial can still proceed, for, the personal appearance of the complainant would no longer be necessary. Let us, now, take yet another case. Supposing a complaint is lodged by a person alleging that his son had been assaulted by the accused. In course of time, the Magistrate issued summons in such a case and the accused appeared, but the complainant did not appear due to his death. The Magistrate should, in such a case, proceed with the trial, for, even in the absence of the complainant, the evidence of the

complainant's son may result into conviction of the accused. It will, therefore, depend on the facts of a given case as to whether the case Shall be allowed to proceed even after the death of the complainant or not. No inflexible rule, in this regard, can be laid down. In other words, whether a complaint in a summons case be allowed to continue even after the death of the complainant is a question, which has to be answered on the basis of the facts of the given case and no invariable or inflexible rule of law can be laid down in this regard. The discretion to be exercised in such cases shall, however, be judicious and not arbitrary. 49. In Om Saran v. Mrs. Satya Dhawan, reported in 1990 Cri LJ 1619, Delhi High Court has laid down that the legislature has vested a discretion in the Magistrate to decide, keeping in view the facts of each case, as to whether, on non-appearance of the complainant or on the death of the complainant in a summons case, the accused should be acquitted or not and if he, for good reasons, thinks it proper, the Magistrate can proceed with the complaint and adjourn the matter in the absence of the complainant or when the complainant has died, I find myself in complete agreement with the observations so made. 50. Keeping in mind what have been concluded above, when I revert to the case at hand, what becomes glaring to the eyes is that in the present case, the complaint relates to the prosecution of the accused-petitioner for the offence allegedly committed by the accused-petitioner under Section

138 read with Section 142 of the NI Act.

51. In the present case, the allegation is that the cheque issued by the accused, when presented for encashment, was returned with an endorsement "Payment stopped by the drawer." The complainant, then, sent a notice to the accused-petitioner demanding payment of the amount for which the cheque, in question, was drawn; but despite receiving the notice, no payment was made by the accused-petitioner. The allegations so made, which may or may not be true, disclose commission of offence by the accused-petitioner under Section 138 read with Section 142 of the N.I. Act. In fact, the fact that the contents of the complainant disclose commission of the offence aforementioned is not, at this stage, in dispute. The important and necessary ingredients to be proved are the issuance of cheque, dishonour of the cheque, issuance of legal notice by the complainant demanding payment to the accused after the cheque, had bounced. These are facts, which can be considered and proved in the absence of the complainant. Whether stopping of payment of cheque by a drawer amounts to dishonour of cheque, or not within the meaning of Section 138 of the N.I. Act is a question which I am not dealing with in the present revision, for, the question as to whether the contends of the complaint, in question, when, read as a whole, amount to commission of offences under Section 138 of the N.I. Act, has not been raised in the present revision. The complainant, who was dead, is now represented by the applicant and the applicant is the son of the deceased. In such a situation, there is no reason why the complaint case, in question, cannot be allowed to proceed. Viewed from this angle, the exercise of the discretion by the learned Magistrate to allow the opposite party herein (who is the son of the deceased-complainant) to represent the complainant is based on sound judicial principles and is unimpeachable in law. 52. I may also refer to a case under Section 138 of the Negotiable Instruments Act, which has dealt with the issue relating to the death of the complainant and this judgment is of the Gujarat High Court in Anil G. Shah v. J. Chattaranjan Co., reported inMANU/GJ/0013/1997. In this case too, it has been laid down that in a case under Section 138 of the Negotiable Instruments Act, 1881, where the complainant dies after taking of cognizance, the proceedings do not abate and trial has to be taken to its logical end following due process and the procedure laid down in Criminal Procedure Code. It has also been held that there is no provision in the Code of Criminal Procedure or the Negotiable Instruments Act laying down that on. account of death of payee, the trial must abate and as such, the proceedings cannot abate on the death of the complainant payee. Therefore, the legal heirs of the original complainant are entitled to come forward and ask for allowing them to represent the complainant so as to enable the Court to proceed further with the trial. In this case, reliance has been placed on the decisions of Kerala High Court in T. N. Jayarajan v. Jayarajan (1992 (3) Crimes 666) (supra); Jammu and Kashmir High Court in Ashok Kumar v. Abdul Latif MANU/JK/0037/1989 (supra) and Andhra Pradesh High Court in Maddipatta Govinvidaiah Naidu v. Yelakaluri Kamalamma (1984 Cri LJ 1326) (supra). 53. While dealing with the present case, it is necessary to bear in mind that there is no provision for substitution of a deceased complainant under the Cr. P.C., but a Magistrate has the power under Section 302, Cr. P.C. to permit any one to conduct prosecution. Hence, when the opposite party herein, as a son of the deceased-complainant, came forward to continue to proceed with the complaint, there was no impediment on the part of the Court, in allowing the son of the deceased-complainant to represent the complainant. Though the Magistrate has substituted the accused-opposite party herein in place of the deceasedcomplainant, the impugned order has the effect of allowing the opposite party herein to represent the deceased-complainant in terms of Section

302, Cr. P.C. (See also Aswin Nanu Bhai MANU/SC/0101/1966 (SC) (supra).

54. What crystallizes from the above discussion is that in the case at hand, for proving the ingredients of the offence allegedly committed by the accused-petitioner, presence of the complainant was not necessary. In such a situation, when the son of the complainant, i.e., the opposite party herein came forward to conduct the prosecution, there was no impediment under the law, in the light of the provisions of Section 256, Cr. P.C. read with Section 302, Cr.P.C, to permit the opposite party herein, as son of the deceased-complainant, to represent the complainant and to allow him to appoint a pleader of his choice to represent him in the case. There was, thus, no legal impediment, on the part of the learned Court below, to allow the proceedings of the complaint case aforementioned to continue. For the conclusions so reached, I find no merit in the present revision and the revision cannot succeed. 55. In the result and for the reasons discussed above, this revision fails and the same shall accordingly stand dismissed. 56. Send back the LCRs.

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