CHAND DEVI DAGA & ORS.versusMANJU K. HUMATANI & ORS.

                        [2017] 11 S.C.R. 923


                  CHAND DEVI DAGA & ORS.                               A
                                 v.
                 MANJU K. HUMATANI & ORS.
                 (Criminal Appeal No. 1860 of2017)
                       NOVEMBER 03, 2017                               B
          [A. K. SIKRI AND ASHOK BHUSHAN, JJ.] .
        Code of Criminal Procedure, 1973 - Chapter XIX and XX -
 Death of complainant - Substitution of legal representatives of t~e
 complainant for prosecuting the complaint - Propriety of - Held: C
 There is no provision in Chapter XIX "Trial of warrant cases by
 Magistrates" that in the event of death of complainant, the complaint
 is to be rejected - The Magistrate u/s.249 has the power to discharge
 a case where the complainant is absent, however, discharge is hedged
 with a condition that "the offence may be lawfully compounded or
 is not a cognizable offence" - Had the Code of 197J intended that D
 in case of death of complainant in a warrant case the complaint is
.to be rejected, the provision would have indicated any such intention
 which is clearly absent - No error c~mmitted by High Court in
 allowing the legal heirs of the complainant to prosecute .in- Criminal
 Misc. Petition.
                                                                        E
        Dismissing the appeal, the Court
      HELD: Section 256 of Code of Criminal Procedure, 1973
is contained in Chapter XX with the heading 'Trial of summons-
cases by Magistrates". Analogous provision to Section 256 of
Code 1973 was contained in Section 247 of Criminal Procedure F
Code, 1898. In Section 247 the proviso was added in 1955 saying
that "where the Magistrate is of the opinion that personal
attendance is not necessary, he may dispense with such
attendance". The said proviso took out the rigour of the
original rule arid whole thing was left to the discretion of the
Court. Sub-section (1) of Section 256 contains the above G
proviso in the similar manner. Thus, even in case of trial of
summons-case it is not necessary or mandatory that after death
of complainant the complaint is to be rejected, iri exercise of the
power under proviso to Section 256(1), the Magistrate can
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                               923
924           SUPREME COURT REPORTS                       [2017] I 1 S.C.R.


A proceed with the complaint. More so, the present is a case where
  offence was alleged under Sections 420, 467, 468, 471, 1208 and
  201 read with 34 IPC for which procedure for trial of summons-
  case was not applicable and there is no provision in Chapter XIX
  "Trial of warrant- cases by Magistrates" containing a provision
B that in the event of death of complainant the complaint is to be
  rejected. The Magistrate under Section 249 has power to
  discharge a case where the complainant is absent. The
  discharge under Section 249, however, is hedged with condition
  "the offence may be lawfully compounded or is not a cognizable
  offence". Had the Code 1973 intended that in case of death of
C complainant in a warrant case the complaint is to be rejected, the
  provision would have indicated any such intention which is clearly
  absent. [Para 9) [927-C-F]
            Ashwin Nanubhai Vyas v. State of Maharashtra
            AIR 1967 SCC 983 : [1967] SCR 807 ; BalasahebK.
D           Thackeray & Am: v. Venkat @ Babru (2006) 5 SCC
            530 : [2006) 3 Suppl. SCR 301 ; Jimmy Jahangir Madan
            v. Bolly Caiyappa Hindley (dead) By Lrs. (2004) 12
            SCC 509 : [2004) Suppl. SCR 955 - referred to~
                              Case Law Reference
 E          [1967) SCR 807                referred to         Para 10
            [2006) 3 Suppl. SCR 301      . referred to        Para 13
            [2004) 5 Suppl. SCR 955       referred to         Para 14

 F         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No.1860of2017.
            From the Judgment and Order dated 02.02.2017 of the High Court
      of Chhattisgarh at Bilaspur in I.A. No.I of 2016 in Cr. M.P. No.216 of
      2016.
 G
            Garvesh Kabra, Mrs.Pooja Kabra, Ms.Nikita Kabra, Advs for
      the Appellants.
           Kaustubh Shukla, Rahul Shyam Bhandari, Deepayan Manda!,
      Konark Tyagi, Advs for the Respondents.
 H
    CHAND DEVI DAGA & ORS. v. MANJU K. HUMATANI                               925
                      &ORS.

      The Judgment of the Court was delivered by                              A
      ASHOK BHUSHAN, J. 1. This appeal has been filed against
the judgment of the High Court of Chhatisgarh allowing an IA filed by
the legal representatives of the petitioner in Criminal Misc. PetitiOn. The
respondents aggrieved by the order of the High Court dated 02.02.20 I 7
~~~~~                                                                         B
      2. The brief facts necessary for deciding this appeal are:
           Smt. Chandra Narayan Das whose legal representatives are
.the respondent Nos. I to 7 had filed a complaint against the appellants
 alleging offence under Sections 420, 467, 468, 471, I20B, 201and34
                                                                                    I   ,
 IPC. The husband of Smt. Chandra Narayan Das was a lease holder of C
 a shop situated in the Civic. Centre, Bhilai Steel Plant, Chhatisgarh. Shop
 No.12 was allowed in the name of the husband of appellant No. I in the
year i959. Although, husband of the appellant No.I, a Member of
Parliament had died in I 952 itself, it was alleged by the complainant that
certain agreements were .got executed by legal heii-s of Member of D
Parliament which constituted commission of offence. The complaint was
dismissed by the Magistrate vide order dated 26.02.20I5 holding that
primafacie case under Sections 420, 467, 468, I20B and 201/34 IPC is
not made out against the accused.
       3. Smt. Chandra Narayan Das filed a criminal revision before the E
Additional Sessions Judge, Durg which was dismissed by VIIIth
Additional Sessions Judge, Durg vide judgment dated 20. I I .20I.5. Criminal
Misc. Petition against the said order dated 20.11.2015 was filed in the
High Court of Chhatisgarh by Smt. Chandra Narayan Das. The High
Court on 18.02.2016 issued notice in the Criminal Misc. Petition. After
issuance of notice the petitioner, Smt. Chandra Narayan Das died on F
02.04.2016. An application was filed by the legal heirs of Smt. Chandra
Narayan Das praying them to be substituted in place of the petitioner.
The application was opposed by the appellants. The High Court vide its
order dated 02.02.20I 7 allowed the said application and permitted the -
legal representatives of Smt. Chandra Narayan Das to come on record G
for prosecuting the Criminal Misc. Petition. Aggrieved by the said
judgment, the appellants have come up in this appeal.·
       4. Learned counsel for the appellants submi~s that in the Code of
Criminal Procedure, 1973(hereinafter referred to as "Code 1973") there
is no provision which permits legal representatives of the complainant to H
     926            SUPREME COURT REPORTS                         [2017] 11 S.C.R.


     A be substituted for prosecuting the complaint. It is submitted that the present
         is a case where no summons were issued to the appellants since the
         complaint was rejected by the Magistrate and a criminal revision
       · challenging the said order has also been dismissed. It is submitted that
         the High Court committed error in permitting the legal representatives
         of complainant to be brought on record for prosecuting the case.
     B
              5. Learned counsel for the respondents refuting the submission of
       the learned counsel for the appellants contends that rejection of complaint
       and order of the Sessions Judge dismissing the criminal revision were
       under challenge before the High Court on the ground that primafacie
       offence was disclosed in the complaint and courts below committed
     c error in rejecting the complaint. The offence having been committed by
       the appellants, the High Court has every jurisdiction to permit the legal
       representatives to prosecute the matter in the event of death of original
       complainant. It is submitted that Code 1973 does not contain any provision
       that on death of complainant, the complaint cannot be allowed to be
     D prosecuted by any other person including the legal representatives.
                 6. We have considered the submissions of the learned counsel for
           the parties and perused the records.
                  7. There is no dispute regarding facts and events in the present
           case. The original complainant died during the pendency of the Criminal
     E     Misc. Petition before the High Court which was filed challenging the
           order of the Sessions Judge rejecting the criminal revision against the
           order of Magistrate dismissing the complaint.
                   8. Section 256 of Code of Criminal Procedure, 1973 is contained
           in Chapter XX with the heading "Trial of summons-cases by
     F     Magistrates". Section 256 on which reliance has been placed provides
           as follows:

 ;
                 "Section 256. Non- appearance or death of complainant.-W
•'
                 ff the summons has been issued on complaint, and on the day
                 appointed for the appearance of the accused, or any day
     G           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:
     H
   CHAND DEVI DAGA & ORS. v. MANJU K. HUMATANI                           927
           & ORS. [ASHOK BHUSHAN, J.]

       Provided that where the complainant is represented by a 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,      B
      apply also to cases where the non-appearance of the
      complainant is due to his death. "
       9. Analogous provision to Section 256 of Code 1973 was contained
in Section 247 of Criminal Procedure Code, 1898. In Section 247 the
proviso was added in 1955 saying that "where the Magistrate is of the c
opinion that personal attendance is not necessary, he may dispense with
such attendance". The said proviso took out the rigour of the original
rule and whole thing was left to the discretion of the Court. Sub-section
(1) of Section 256 contains the above proviso in the similar manner.
Thus, even in case of trial of summons-case it•is not necessary of
mandatory that after death of complainant the complaint is to be rejected, D
in exercise of the power under proviso to Section 256(1 ), the Magistrate
can proceed with the complaint. More so, the present is a case where
offence was alleged under Sections 420, 467, 468, 471, 120B and 201
read with 34 IPC for which procedure for trial of summons-case was
not applicable and there is no provision in Chapter XIX "Trial of warrant- E
cases by Magistrates" containing a provision that in the event of death
of complainant the complaint is to be rejected. The Magistrate under
Section 249 has power to discharge a case where the complainant is
absent. The discharge under Section 249, however, is hedged with
condition "the offence may be lawfully compounded or is not a cognizable
offence". Had the Code 1973 intended that in case of death of F
complainant in a warrant case the complaint is to be rejected, the provision
would have indicated any such intention which is clearly absent.
       1Q. In this context a reference is made tojudgment of this Court
in Ashwin Nanubhai Vyas Vs. State of Maharashtra, AIR 1967 SCC
983. In the said case this Court had occasion to consider the provisions G
of Criminal Procedure Code, 1898. The complainant had filed a complaint
against the appellants. The complaint was filed under Sections 498 and
496 IPC. Accused was summoned. However, during the pendency of
the complaint, the complainant died. The complainant's mother applied
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928            SUPREME COURT REPORTS                      [2017] 11 S.C.R.


A for substituting her to act as complainant and continue the proceedings.
   Magistrate permitted the mother of complainant to pursue the complaint
   against which revision was filed before the High Court which was
   dismissed. Aggrieved by the order of the High Court the appellant had
   come up before this Court. In the above context this Court considered
   the pari materia provisions of the Criminal Procedure Code, 1898 with
B.
   regard to Section 247 (now Section 256) it was specifically held that
   said provision does not furnish any valid analogy. In paragraph 4 of the
   judgment foHowing was observed:
            "4 Mr. Keswani for l'yas, in support of the abatement of the
            case, relied upon the analogy of Section 431 under which
c           appeals abate and Sections 247 and 259 under which on the
            complainant remaining absent, the court can acquit or
            discharge the accused. These analogies do not avail him
            because they provide for special situations. Inquiries and
            trials before the court are of several kinds.       Section 247
D           occurs in Chapter XX which deals with the trial of summons
            cases by a Magistrate and Section 259 in Chapter XX! which
            deals with trial of warrant cases before Magistrates. Under
            the former, if summons is issued on a complaint and the
            complainant on any day remains absent jivm the court, unless
            it decides to pmceed with the trial, must acquit the accused.
E           This can only happen in the trial of cases, which are punishable
            with imprisonment of less than one year. This not being the
            trial of a summons case but a committal inquiry, Section 247
            neither applies nor can it furnish any valid analogy. Similarly,
            Section 259, which occurs in the Chapter on the trial of
F           warrant cases, that is to say cases triable by a Magistrate
            and punishable with imprisonment exceeding one year can
            furnish no analogy. Under Section 259, if the offence being
            tried as a warrant case is compoundable or is not cognizable
            the Magistrate may discharge the accused before the charge
            is framed if the complainant remains absent. Once again this
 G          section cannot apply because the Presidency Magistrate was
            not trying the case under Chapter XX!."
             l t. This Court further had occasion to consider Section 495 of
      Code 1898 (now Section 302 of Criminal Procedure Code) and this Court
      laid down in paragraph 7 as follows:
H
    CHAND DEVI DAGA & ORS. v. MANJU K. HUMATANI                                929
            & ORS. [ASHOK BHUSHAN; J.]

      "7 Mr. Keswani contend5 that the Presidency Magistrate has A
      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
                                                                            B
       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 oj prosecution by any person. The words
       'any person' would indubitably include the mother of the c
      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."
                                                                            D
       12. At this stage reference to Section 302 of the Criminal Procedure
Code is necessary. Section 302 ofthe Criminal Procedure Co_de is
contained in Chapter XXIV with the heading "General provisions as to
inquiries and trials". Section 302 relates to permission to conduct
prosecution which is to the following effect:
                                                                            E
      " Section 302. Permission to conduct prosecution
          l. 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 lnspector; but no person,
          other than the Advocate-General or Government Advocate · p
          or a Public Prosecutor or Assistant Public Prosecutm; 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.       G
      2. Any person conducting the prosecution may do so personally
      or by a pleader."
     13. This Court had occasion to consider Sections 256 and 302 in
Balasaheb K. Thackeray & Anr. Vs. Venkat @ Babru, (2006) 5 SCC
                                                                               H.
930          SUPREME COURT REPORTS                       [2017] 11 S.C.R.


A 530. In the above case complaint was filed under Section 500 read with
  Section 34 IPC. A petition was filed under Section 482 of the Code 1973
  against the order of issue of process in the High Court which was
  dismissed. SLP was filed in this Court in which notice was issued and
  during the pendency of the appeal it was noted that complainant had
  died. It was contended that the complaint be dismissed on the ground
B
  that complainant is dead. This Court in the above context referred to
  Sections 256 and 302. This Court repelled the argument of the appellant
  that complaint be dismissed on the ground that complainant had died.
  Following was held in paragraphs 3 to 6:
          "3. Learned counsel for the appellants with reference to
c         Section 256 of the Code submitted that the complaint was to
          be dismissed on the ground of the death of the complaina,nt.
          As noted above learned counsel for Respondent Is legal heirs
          submitted that the legal heirs of the complainant shall file an
          application for permission to prosecute and, therefore, the
D         complaint still survives consideration.
          4. At this juncture it is relevant to take note of what has been
          stated by this Court earlier on the principles applicable. In
          Ashwin Nanubhai Vyas v. State of Maharashtra with reference
          to Section 495 of the Code of Criminal Procedure, 1898
E         (hereinafter referred to as "the old Code") it was held that
          the Magistrate had the power to permit a relative to act as the
          complainant to continue the prosecution. In Jimmy Jahangir
          Madan v. Bolly Cariyappa Hindley after referring to Ashwin
          case it was held that heir of the complainant can be allowed
          to file a petition under Section 302 of the Code to continue
 F        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
G            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:

H
    CHAND DEVI DAGA& ORS. v. MANJU K. HUMATANI                            931
            & ORS. [ASHOK BHUSHAN, J.]

         Provided that no police officer shall be permitted to conduct A
         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."                                                B

      6. To bring in application of Section 302 of the Code, permission
      to conduct the prosecution has to be obtained from the Magistrate
      inquiring into or trying a case. The Magistrate is empowered to
      permit the prosecution to be conducted by any person other than
      a police officer below the rank of Inspector; but no person other C
      than the Advocate General or the Government Advocate or a
     .Public Prosecutor or Assistant Public Prosecutor shall be entitled
      to do so without such permission."

       14. Two Judge Bench in Jimnly Jahangir Madan Vs. Bally             D
Caiyappa Hindley (dead) By. Lrs., (2004) 12 SCC 509 referring to
this Court's judgment in Ashwin Nanubhai Vya'sJ$upra) had held that
heirs of complainant can continue the prosecutionJ'F'ollowing was held
in paragraph 5:                                    ·

      "5. The question as to whether the heirs of the complainant E
      can be allowed to file an application under Section 302 of
      the Code to continue the prosecution is no longer res integra
      as the same has been concluded by a decision of this Court
      in the case of Ashwin Nanubhai \.)ias v. State of Maharashtra
      in which case the Court was dealing with a case under Section
      495 of the Code of Criminal Procedure, 1898, which is F
      corresponding to Section 302 of the Code: In that case, it
      was laid down that upon the death of the complainant, under
      the provisions of Section 495 of the said Code, mother of the
      complainant could be allowed to continue the prosecution. It
      was further laid down that she could make the application G
      either herself or through a pleader. Undisputedly, in the
      present case, the heirs themselves have not filed the
      applications to continue the prosecution, rather the same have
      been filed by. their power-of attorney holders .... "

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932                SUPREME COURT REPORTS                    [2017] 11 S.C.R.


A            15. In view of what has been discussed above, we are of the
      view that High Court did not commit any error in allowing the legal heirs
      of the complainant to prosecute the Criminal fylisc. Petition before the
      High Court. We do not find any error in the order of the High Court. The
      appeal is dismissed.


      Ankit Gyan                                                Appeal dismissed.