Delhi District Court
Sh. Ashok Rana vs (1) Sh. Islamuddin (Deceased) on 24 February, 2015
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) /
ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI
Criminal Revision No. 35/2014
Case ID No. 02402R0282802014
SH. ASHOK RANA
Inspector, U.P. Police,
Presently Posted at
District Moradabad, U.P.
................Revisionist
VERSUS
(1) SH. ISLAMUDDIN (DECEASED)
Through Mohd. Tahir
S/o Late Islamuddin
R/o C-95, Gali No. 10,
Azizia Masjid, Ganwari,
Delhi-110053.
(2) THE STATE OF NCT OF DELHI
................Respondents
Date of institution : 18.09.2014
Date of reserving order : 13.02.2015
Date of order : 21.02.2015
ORDER
1. By way of revision petition, the petitioner has challenged order dated 06.08.2014 in CC No. 50/2009 titled as 'Islamuddin v. Ashok Rana & Ors.' under section 420/34 IPC PS New Usmanpur whereby the respondent no. 1 / Mohd. Tahir s/o Late Islamuddin was permitted to continue prosecution of the complaint case.
Cr. Revision No. 35/2014 Ashok Rana Vs. Islamuddin & Ors. Page No. 1/142. Brief facts leading to filing of the present revision petition are that Late Islamuddin filed a complaint case against the petitioner / Ashok Rana and Raghunath on the allegations that on 24.03.2009 at about 08.00 a.m., the petitioner and Raghunath reached at his house at H. No. C-94, Gali No. 10, Azizia Masjid, Ganwari, Delhi-110053 and asked him to pay Rs. 1,30,000/- in order to arrange police force for taking possession of the land of Late Islamuddin vide Plot no. 70, measuring 66 sq. yards, Arya Nagar Industrial Area, Neelam Road, Tehsil Loni, District Ghaziabad, U.P. The petitioner was chowki in- charge of the concerned police station. Sh. Islamuddin arranged the said amount of Rs.1,30,000/- from his friend Ch. Prem Singh, Master. He paid the said amount to the petitioner in the presence of Ch. Prem Singh, Master and Rashid. However, the petitioner did not arrange any police force and he threatened Late Islamuddin to implicate him and his son in a false criminal case. On the strength the aforesaid allegations, the said complaint case was filed against the petitioner and Raghunath.
3. The Court taken cognizance of the offence.
4. Late Islamaddin examined Ch. Prem Singh, Master as CW-1, Rashid as CW-2 and he examined himself as CW-3 in pre-summoning evidence.
5. Vide order dated 27.09.2010, Ld. trial Court was of the opinion that a prima facie case under section 420/506/34 IPC was made against the petitioner and Raghunath and summoned them to face the trial.
Cr. Revision No. 35/2014 Ashok Rana Vs. Islamuddin & Ors. Page No. 2/146. In pre-charge evidence, Ch. Prem Singh was examined as CW-1 and he was partly cross-examined by Ld. counsel for accused Raghunath.
7. During the pre-charge evidence, Sh. Islamuddin expired on 02.11.2012.
8. On 29.01.2014, an application under section 256 Cr.P.C. was filed by the respondent no. 1 / Mohd. Tahir for seeking permission of the Court to continue the prosecution of the case.
9. Vide order dated 06.08.2014, the said application was allowed. The impugned order is reproduced below:-
"An application u/s 256 Cr.PC for substitution of applicant Mohd. Tahir s/o deceased complainant Islamuddin is pending adjudication.
It is submitted that the complainant has expired on 02.11.2012 due to old age and it has been prayed that the applicant be allowed to continue the proceedings in the present case. It has been specifically avert that evidence both oral and documentary is still available and can be brought on record by the applicant. Per contra it has been asserted on behalf of the accused that the application has not been presented under the proper section and that the applicant has no locus to file the present application. It has been also been avert that no other evidence of the case is available with the applicant.
I have heard rival submission of ld. Counsel for the parties and have perused the record of the case with their assistance.
It appears that the term complainant has not been defined in the Cr.PC and any person can set criminal law in motion. It also appears to be the settled proposition of law that death of the complainant does not ipso-facto abate proceedings in a criminal complaint case. The pronouncement of Hon'ble Apex Court in "Ashwin Nanu Bhai Byas Vs. State of Maharastra, AIR 1967 (SC) 983" can fruitfully be Cr. Revision No. 35/2014 Ashok Rana Vs. Islamuddin & Ors. Page No. 3/14 adverted to in this regard. The pronouncement of Hon'ble High Court in "Ghisa Ram dead through attorney Vs. NCT of Delhi, 2011 (8) AD (Del) 76"
where the scope of Sections 249 and 256 of the Cr.PC was discussed and continuation of proceedings by Lrs. of deceased complainant was allowed can also be fruitfully adverted to in this regard. Furthermore, mere non-mentioning of the proper Section of law or mentioning of incorrect Section of law does not by itself mandate dismissal of the application and the application is still to be considered on its merits. The sum and substance of the present application is that the Lrs. of the deceased complainant be allowed to continue the present complaint.
As discussed above, there is no legal bar in granting the relief claimed. Furthermore, the matter is pending for pre-charge evidence and witnesses Prem Singh has been partly examined in pre-charge evidence. CW1 Prem Singh purportedly was an eye witness of the case alongwith CW2 Rashid who was also present when the amount of Rs.1,30,000/- was purportedly handed over to the accused persons. Specific averment in this regard has been made in para 8 of the complaint. Thus even other than the testimony of deceased complainant, other witnesses of the incident are also available as per the version of the complainant.
Thus, the present application is allowed to the extent that Mohd. Tahir s/o deceased complainant Islamuddin is allowed to be substituted in place of the deceased complainant for continuing the Prosecution of the present complaint. It is however clarified that nothing herein shall be deemed to be an expression of opinion on the merits or quality of the evidence led by the complainant and the quality of evidence to be led by the substituted complainant shall be a matter of trial."
10. Feeling aggrieved by the impugned order, the petitioner has preferred the present petition on the following grounds:-
Cr. Revision No. 35/2014 Ashok Rana Vs. Islamuddin & Ors. Page No. 4/14a. The respondent no. 2 has no role in the said complaint case;
b. The respondent no. 2 has no locus standi to file the application to continue the proceedings; c. There is no legal provision for substitution of complainant in a criminal case.
d. There was no evidence against the petitioner in pre- charge evidence;
e. Ld. trial Court has not applied judicial mind and it has not considered that in the absence of the statement of the deceased complainant and his son, charges could not be framed.
11. Notice of the petition was issued to the respondent no. 1 / Mohd. Tahir.
12. After service of notice of the petition, Sh. D.P.S. Tomar, Advocate for the respondent no. 1 / Mohd. Tahir appeared on 06.01.2015. However, there was no representation in respect of respondent no. 1 / Mohd. Tahir since 27.01.2015.
13. I have heard arguments of Sh. Pradeep Teotia, Advocate for the petitioner and Sh. I.H. Siddiqui, Ld. Addl. PP for the State / respondent no. 2.
14. I have examined the trial Court record.
15. Ld. counsel for the petitioner submitted that there is no provision for substitution of any person as complainant in a criminal case. He submitted that the respondent no. 1/Mohd. Tahir was neither a witness nor concerned with the incident in question. He submitted that impugned order does not specify as to the nature of the oral or documentary evidence available with the respondent no. 1/Mohd. Tahir.
Cr. Revision No. 35/2014 Ashok Rana Vs. Islamuddin & Ors. Page No. 5/1416. Sh. Pradeep Teotia, Advocate for the petitioner submitted that the respondent no. 1/Mohd. Tahir has no locus standi to file the application seeking permission to continue the prosecution. He submitted that the said application was not maintainable. He has prayed for setting aside of the impugned order.
17. Sh. I.H. Siddiqui, Ld. Addl. PP for the State/respondent no. 2 has submitted that the impugned order is a reasoned order. He submitted that there is no infirmity or illegality in the impugned order warranting any interference by this Court.
18. Issue before the Court is whether the respondent no. 1/Mohd. Tahir should be allowed to continue the proceedings after death of his father/complainant.
19. Sh. Islamuddin filed a complaint case under section 420/34 IPC against the petitioner and Raghunath. After pre-summoning evidence, the petitioner and Raghunath were summoned vide order dated 27.09.2010. Thereafter, pre-charge evidence was being recorded in the said case. During the course of pre-charge evidence, Sh. Islamuddin expired on 02.11.2012. Besides Sh. Islamudddin, Ch. Prem Singh and Rashid are also the witnesses of the incident in question. The case of the complainant is that he had paid the amount of Rs. 1,30,000/- to the petitioner and Raghunath in the presence of Ch. Prem Singh and Rashid.
Cr. Revision No. 35/2014 Ashok Rana Vs. Islamuddin & Ors. Page No. 6/1420. Moreover, the complainant relied upon documentary evidence in the form of record pertaining to civil suit no. 80/2006 whereby he was declared owner of Plot No. 70 measuring 666 sq. yards, Neelam Road, PS Loni, Ghaziabad.
21. The complaint case was being tried as a warrant case instituted otherwise than on police report under Chapter XIX of the Cr.P.C. Section 249 Cr.P.C. provides as under:-
"249. Absence of complainant. - When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding, anything hereinbefore contained, at any time before the charge has been framed, discharge the accused."
22. It is therefore, clear that the Court has discretion to discharge the accused in the absence of complainant. The Court can also proceed with the case in the absence of complainant.
23. Section 302 of the Cr.P.C. is reproduced below:-
"302. Permission to conduct prosecution. - (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any persons other that police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:
Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by a pleader."Cr. Revision No. 35/2014 Ashok Rana Vs. Islamuddin & Ors. Page No. 7/14
24. It is therefore, clear that the Magistrate is empowered to permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector.
25. In 'Ashwin Nanobhai Vyas v. State of Maharashtra', AIR 1967 SC 983; the complainant instituted a complaint case under section 198-A Cr.P.C. against the appellant. The appellant was alleged to have committed offences under section 417, 493 and 496 IPC. The complainant was examined by the Magistrate and thereafter, the complainant expired during inquiry. The complainant's mother sought substitution in the said case and the said application was resisted by the appellant on the ground that the complaint must be treated as abated on the death of the complainant. The matter reached to Hon'ble Supreme Court of India. Hon'ble Supreme Court of India observed as under:-
"The Code of Criminal Procedure provides only for the death of an accused or an appellant but does not expressly provide for the death of a complainant. The Code also does not provide for the abatement of inquiries and trials although it provides for the abatement of appeals on the death of the accused, in respect of appeals under ss. 411 A(2) and 417 and on the death of an appellant in all appeals except an appeal from a sentence of fine. Therefore, what happens on the death of a complainant in a case started on a complaint has to be inferred generally from the provisions of the Code."
26. In the aforesaid case, Hon'ble Supreme Court taken note of the fact that the offences with which the appellant was charged were serious offences punishable with imprisonment extending to 10 and 7 years respectively.
Cr. Revision No. 35/2014 Ashok Rana Vs. Islamuddin & Ors. Page No. 8/1427. Though the offences with which the accused was charged in 'Ashwin Nanubhai Vyas's case were triable by the Court of the Session and the section 259 (under the old Court) relating to trial of warrant cases was not applicable to the said case, Hon'ble Supreme Court observed that "the intention appears to be that the Magistrate should proceed with the inquiry because had it not been so intended, the Code would have said what would happen if the complainant remains absent".
28. Similar contention as raised in the present case that there is no provision for substitution of the complainant in a Criminal Case was dealt in Ashwin Nanubhai Vyas's case as under:
"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 was undoubtedly possessed by the Presidency Magistrate because of s. 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".Cr. Revision No. 35/2014 Ashok Rana Vs. Islamuddin & Ors. Page No. 9/14
29. In Ashwin Nanubhai Vyas's case, Hon'ble Supreme 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 s. 495 of the Code of Criminal Procedure is always available.....We see no reason why we should be astute to find a lacunas 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 s. 198 requires is the removal of the bar".
30. Similarly, Chapter XIX relating to trial of warrant cases by the Magistrate, there is no provision as to what would happen after the death of the complainant. In such eventuality, the Court can take recourse to section 302 Cr.P.C in appropriate cases.
31. In 'Balasaheb K. Thackeray and another Vs. Venkat @ Babru' reported as (2006) 5 SCC 530: Hon'ble Supreme Court considered the question as to what was the effect of the death of the complainant on the legal proceedings initiated by him. Hon'ble Supreme Court observed as under:
"3. Learned counsel for the appellants with reference to Section 256 of the Code submitted that the complaint was to be dismissed on the ground of the death of the complainant. As noted above learned counsel for Respondent 1's legal heirs submitted that the legal heirs of the complainant shall file an application for permission to prosecute and, therefore, the 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 AIR 1967 SC 983 with reference to Section 495 of the Code of Criminal Procedure, 1898 (hereinafter referred to as "the old Code") it was held Cr. Revision No. 35/2014 Ashok Rana Vs. Islamuddin & Ors. Page No. 10/14 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 (2004) 12 SCC 509 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 the prosecution.
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 than the Advocate General or that Government Advocate or a Public Prosecutor or Assistant Public Prosecutor shall be entitled to do so without such permission".
32. In 'Ghisa Ram Decd. Thr. his Attorney Madan Lal v. NCT of Delhi & Ors.', (2011) 184 DLT 148; the complainant filed a complaint case before the Magistrate alleging offences under section 420/468/471/506/120-B IPC alongwith a list of witnesses. At post-charge stage before cross- examination of the complainant, he expired. After his death, his attorney filed an application stating that he wanted to prosecute the said case. The said application was dismissed on the ground that the applicant was neither cited as a witness nor he has ever appeared as the witness at the pre-summoning or the pre-charge stage and further in the absence of the complainant, no other person could appear to prove the alleged offences. The respondents No. 2 to 4 were acquitted. The applicant taken the matter to the Hon'ble Delhi High Court. The said case was being tried as a warrant case instituted otherwise than on a police report.
Cr. Revision No. 35/2014 Ashok Rana Vs. Islamuddin & Ors. Page No. 11/1433. It was contended by the applicant that the trial Court ignored Section 249 and 256 Cr.P.C which permit that even in the absence of the complainant, the Court can proceed with the trial. It was also contended that non-filing of the list of the witnesses was an irregularity which could be cured during trial. It was contended by the respondents that the complainant was the only witness who was in the knowledge of facts and in his absence, the charges against them could not have been proved and the trial would have been an exercise in futility.
34. Hon'ble Delhi High Court considered Section 249 and 256 of the Cr.P.C and held as under:
"18 A perusal of Section 256 Cr.P.C shows that in the absence of the complainant also the complaint case can proceed. Hon'ble Supreme Court in Rashida Kamaluddin Syed v. Shaikh Saheblal Mardan (Dead) through Lrs., (2007) 3 SCC 548 observed:
"21. From the above case law, in our opinion, it is clear that on the death of Shaikh Saheblal, the case did not abate. It was, therefore, open to the sons of complainant to apply for continuation of proceedings against accused persons. By granting such prayer, no illegality has been committed by the courts.....
19. It is the quality of the evidence which has to be tested. In a given case of injury where only the Complainant was the eye witness, the strict parameter that since there is no other witness is applicable but in a case of this nature that is of cheating and forgery which is largely based on the documents the complainant's case can be proved and the allegations of the learned counsel for the Respondent that no list of witnesses was submitted is of not consequence.....
20. Thus, in view of the law laid down by the Hon'ble Supreme Court and the facts of the present case, I do not find that it was appropriate for the learned Trial Court to have acquitted the Respondent Nos. 2 to 4. Hence, the Appellant is permitted to be substituted as complainant and allowed to continue with the complaint case".Cr. Revision No. 35/2014 Ashok Rana Vs. Islamuddin & Ors. Page No. 12/14
35. Keeping in view the aforesaid principles in mind and the facts of the present case, it is evident that there is no provision in Chapter XIX of the Cr.P.C. regarding the fate of the complaint upon the death of the complainant. In that eventuality, the Court can take recourse to Section 302 of the Cr.P.C. and permit the legal heirs or any relative of the complainant to proceed with the complainant. The petitioner was an officer of the police. He was prosecuted for committing serious offences of cheating. The petitioner and Raghunath allegedly dishonestly induced the complainant to pay them a sum of Rs. 1,30,000/- on the pretext of arrangement of police force for restoration of possession of his plot. Ch. Prem Singh and Rasid were present at the time of the payment of the said amount. At the time of the death of the complainant, pre-charge evidence was being recorded and Ch. Prem Singh was partly cross-examined. It cannot be said that there is no evidence available with the respondent No. 1 after death of the complainant. The respondent No. 1 can also appear as a witness to depose the fact which were in his knowledge by filing an additional list of witnesses. In such a case, denial of permission to the respondent No. 1 to prosecute the complaint would be a miscarriage of justice. Ld. Trial Court has committed no illegality or irregularity in permitting him to continue the proceedings after death of the complainant. Such a serious case cannot be brought to such an abrupt end after death of the complainant.
Cr. Revision No. 35/2014 Ashok Rana Vs. Islamuddin & Ors. Page No. 13/1436. Accordingly, the revision petition is dismissed. A copy of this order be sent to Ld. trial Court alongwith trial Court record for information and necessary compliance. The revision file be consigned to Record Room after due compliance.
Announced in the open court SANJAY SHARMA on this 21st day of February, 2015. Special Judge NDPS (N/E) ASJ/KKD Courts/Delhi.
Cr. Revision No. 35/2014 Ashok Rana Vs. Islamuddin & Ors. Page No. 14/14