Punjab-Haryana High Court
Ram Singh And Others vs Gurbachan Singh on 20 February, 2014
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
CRR-1665-2010 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR-1665-2010 (O&M).
Decided on: February 20, 2014.
Ram Singh and others
..... Petitioner(s)
Versus
Gurbachan Singh
..... Respondent(s)
***
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI
PRESENT Mr.M.J.S.Sethi, Sr., Advocate, with
Mr.Mohd. Yusuf, Advocate,
for the petitioners.
Ms.Sumati Jund, Advocate, for
Mr.Rajesh Punj, Advocate,
for the respondsent
M.M.S. BEDI, J.
Petitioners have questioned the legality and propriety of order dated 30.3.2010, passed by the Judicial Magistrate First Class, Ludhiana, permitting Gurbachan Singh son of Avjinder Singh complainant to be substituted as complainant to prosecute the complaint for defamation under Section 500 of the Indian Penal Code, against the petitioners.
Brief facts relevant for the decision of the present case are that the complainant Avjinder Singh had purchased a piece of land from Basant Kaur mother of petitioner No.1 who was more than 100 years old by a fraudulent transaction. The petitioners 1 Raj Kumar Arora 2014.02.25 13:46 I attest to the accuracy and integrity of this document CRR-1665-2010 (O&M) aggrieved by the said transaction filed a suit for declaration and permanent injunction against complainant Avjinder Singh and others allegedly making a defamatory statement in the complaint to the effect that there was a Will dated 15.6.1979 in favour of Ram Singh (plaintiff No.1) but despite that Basant Kaur defendant No.2 executed a sale deed dated 31.7.1989 in favour of defendant No.1 Avjinder Singh complainant. The sale was illegal, fake, forged, fabricated and an act of fraud played by Avjinder Singh and Basant Kaur and was without consideration. Defendant No.1 (Avjinder Singh) is a professional bad character type of person and has taken advantage of wrong entries in the revenue records and of the old age of defendant No.2 and plaintiff No.1 is not bound by the same. On the basis of said pleadings, the complainant filed a complaint for offence of defamation unde Sections 499 and 500 of the Indian Penal Code.
After recording preliminary evidence, the trial Court summoned the petitioners to face trial under Section 500 of the Indian Penal Code. Avjinder Singh complainant died on 28.10.2009. His son Gurbachan Singh moved an application under Section 256 Cr.P.C., for his substitution as a complainant to proceed with the pending complaint. The petitioners as accused filed reply claiming that the complaint was liable to be dismissed after death of the complainant.
The trial Court allowed the application vide 2 Raj Kumar Arora 2014.02.25 13:46 I attest to the accuracy and integrity of this document CRR-1665-2010 (O&M) impugned order dated 30.3.2010. The trial Court relying upon the judgment in case Shri Balasaheb K Thackery and another Vs. Shri Venkat alias Babur and another, 2006 (2) Apex Court Judgment (SC) 666, held that the application for permission to proceed with the complaint through Gurbachan Singh son of Avjinder Singh (deceased complainant) is maintainable holding that the judgments in Ashwin Nanubhai Vyas Vs. The State of Maharashtra and another, AIR 1967 SC 983; Ratan Singh and others Vs.Chain Singh, 2000 Cr.L.J.2736 (HC); and Vishwa Nath Vs. Shambhu Nath Pandeya, 1995 Crl.L.J. 277 (HC), cited by the counsel for the petitioners are not applicable to the facts of the case.
Through the instant revision petition, the petitioners claim that defamation is a personal injury and it dies with the death of the complainant and the judgment in case Ashwin Nanubhai Vyas (supra) has been wrongly distinguished by the trial Court.
Counsel for the petitioners has relied upon the judgment in case Ratan Singh and others Vs.Chain Singh, 2000 Cr.L.J.2736 (HC), in support of his contention that continuation of proceedings by a Magistrate after the death of the complainant is not warranted.
Counsel for the respondent has relied upon the judgments in Shri Balasaheb K Thackery and another Vs. Shri Venkat alias Babur and another, 2006 (2) Apex Court Judgment (SC) 666; Santhi Balagopal Vs.Benilde, 1995 (3) RCR (Crl.) 650; 3 Raj Kumar Arora 2014.02.25 13:46 I attest to the accuracy and integrity of this document CRR-1665-2010 (O&M) Nathu Jeorakhan Vs.Sheopal Kuppa and others, 1963 (1) Crl.L.J. 184; and Mrs.Pat Sharpe Vs. Dwijendra Nath Bose, 1964 (1) Crl.L.J., 367, in support of her contention that complaint of defamation may remain alive till the decision of the trial.
I have heard the learned counsel for the petitioners as well as the learned counsel for the respondent and gone through the facts and circumstances of the case and the case law cited by the learned counsel for both the parties.
The relevant provision of law which deals with the death of a complainant in a summons case is Section 256 Cr.P.C., which reads as follow: -
"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 4 Raj Kumar Arora 2014.02.25 13:46 I attest to the accuracy and integrity of this document CRR-1665-2010 (O&M) may be, apply also to cases where the nonappearance of the complainant is due to his death."
Section 199 Cr.P.C., which specifically deals with prosecution for defamation reads as follow: -
"199. Prosecution for defamation -
(1) No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf."
The complaint has been defined under Section 2 (d) Cr.P.C., which reads as follow: -
"(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation-- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by 5 Raj Kumar Arora 2014.02.25 13:46 I attest to the accuracy and integrity of this document CRR-1665-2010 (O&M) whom such report is made shall be deemed to be the complainant."
A perusal of Section 199 Cr.P.C., makes it clear that it is only the person aggrieved by the offence of defamation who could only file a complaint. There does not appear to be any dispute regarding the fact that the offence under Section 500 of the Indian Penal Code is a summons trial within the meaning of Section 2 (w) of the Code of Criminal Procedure. A complaint can be filed by a person who is an aggrieved person. Section 199 Cr.P.C., lays down an exception to the said rule. Under Section 199 Cr.P.C., only an aggrieved person can move in case of defamation. Section 199 Cr.P.C., is a specific provision dealing with the cases of defamation which provides that if a Magistrate has to take cognizance of offence of defamation on a complaint filed by a person he has to be himself an aggrieved person. Section 256 Cr.P.C., applies in circumstances where the complainant does not appear in a summons case. In case of non-appearance of the complainant, the Magistrate can either acquit the accused or adjourn the case for a future date or to dispense with the attendance of the complainant and proceed with the case. Sub-section (2) of Section 256 Cr.P.C., brings a case of absence of the complainant and case of death of the complainant on the same footing. Section 256 (2) Cr.P.C., has the effect of widening the scope of Section 256 (1) Cr.P.C., to empower the Magistrate to 6 Raj Kumar Arora 2014.02.25 13:46 I attest to the accuracy and integrity of this document CRR-1665-2010 (O&M) follow any of the above said three steps in case of non-appearance of the complainant on account of his death. In Ishar Dass Vs. Emperor, The Criminal Law Journal Reports, 1908, Vol. 7, 290, wherein the question referred to the Division Bench was whether death of complainant during the course of proceedings of defamation will necessarily terminate the proceedings, it was held that the prosecution for defamation is essentially a personal action and the institution of proceedings depends on the temperament of the person defamed. In Hazara Singh and another Vs. Emperor, AIR 1922 Lahore 227, it was laid down that under Criminal Procedure Code, non-appearance of the complainant in a summons case, if the summons has been issued on complaint, causes the proceedings to terminate and the Magistrate shall acquit the accused unless for some reason he thinks proper to adjourn the hearing of the case to some other day. In case Hazara Singh and another (supra) effect of death of complainant in a warrant case was also considered. No doubt it was observed that criminal proceedings once legally instituted whether upon a complaint or otherwise do not terminate or abate merely by reason of the death of the complainant or the person injured. The judgment makes a distinction between an offence which is against public and an offence which is injury to a private person only. The extract of the said judgment making a reference of Halsbury's Laws is as follows: -
"I think it is a mistake to speak of an offence as a 7 Raj Kumar Arora 2014.02.25 13:46 I attest to the accuracy and integrity of this document CRR-1665-2010 (O&M) purely personal one. In Volume IX Halsbury's Laws of England at page 232, a crime is said to be "an unlawful act or default which is an offence against the public, and renders the person guilty of the act or default liable to legal punishment. While a crime is often also an injury to a private person who has a remedy in a civil action, it is as an act or default contrary to the order, peace and well-being of society that a crime is punishable by the State."
The above abstract has been noticed to make a distinction between an act of an accused of an offence against State and an act of an accused of an offence as an injury to a private person only. The judgment which has been relied upon by the trial Court in permitting the respondent to prosecute the defamation case after death of his father is reported as Shri Balasaheb K Thackery and another Vs. Shri Venkat alias Babur and another, 2006 (2) Apex Court Judgment (SC) 666. In the said case, the legal heirs of complainant in a defamation case wanted to continue the proceedings against the accused. In the said case, the complainant had died during pendency of the proceedings in Hon'ble the Apex Court. Hon'ble the Apex Court acknowledged the rights of heirs to file an application to continue the proceedings with a direction to the trial Court to pass an appropriate order in accordance with law. It was not laid down as a principle of law in the said judgment that the legal heirs of the complainant have got a right in proceedings under 8 Raj Kumar Arora 2014.02.25 13:46 I attest to the accuracy and integrity of this document CRR-1665-2010 (O&M) Section 500 of the Indian Penal Code to continue with the proceedings in all eventualities. Para 7 of the judgment in case Shri Balasaheb K Thackery and another (supra) reads as follow: -
"7.Above being the position, if any permission is sought for by the legal heirs of the deceased complainant to continue prosecution, the same shall be considered in its perspective by the Court dealing with the matter. It is brought to the notice that by order dated 13.10.2003 further proceedings before the Magistrate are stayed. In that background, Mr. Adsure submitted that the application shall be filed before this Court. If and when any application is filed the same shall be dealt with appropriately. Ordered accordingly."
Taking into consideration the provisions of Section 256 Cr.P.C. and Section 302 Cr.P.C., it is apt to mention that the procedure for trial of warrant cases by Magistrate is contained in Chapter XIX of the Code of Criminal Procedure from Sections 238 to 250 whereas procedure for trial of summons cases by Magistrate is contained in Chapter XX of the Code of Criminal Procedure from Sections 251 to 259. Chapter XXI of the Code of Criminal Procedure from Sections 260 to 265 deals with the summary trials. So far as Section 302 is concerned, it falls under the general provisions as to enquiries and trials. As the controversy in the present case arises out of summons case, the specific provision of Section 256 (2) and the 9 Raj Kumar Arora 2014.02.25 13:46 I attest to the accuracy and integrity of this document CRR-1665-2010 (O&M) provisions of Section 199 (1) Cr.P.C., will govern the facts of the present case. The Allahabad High Court in Vishwa Nath Vs. Shambhu Nath Pandeya deceased by LRs and another, 1995 Crl. L.J., 277, has taken into consideration the provisions of Sections 199, 256 (1) and 256 (2) Cr.P.C. and it has been held that cognizance of the case after death of the complainant under representation of Advocate is not permissible. The relevant portion of the judgment is reproduced as follows: -
"Section 199, Cr PC contains mandatory provision for the Court not to take cognizance of an offence except upon a complaint made by some person aggrieved by the offence. Section 256, Cr PC applies where the complainant does not appear in a summons case, where three courses are open to the Magistrate, when the complainant is absent on the date of hearing, either acquit the accused; or to adjourn the case for a future date or to dispense with the attendance of the complainant and proceed with the case. Sub-section (2) has been added to Section 256, Cr PC to make a legal provision that 'death' and 'absence' of the complainant stand on the same footing in the matter of ending or proceeding (the case. Sub-section (2) of Section 256, Cr PC has widened the scope of Sub-Section (1) of Section 256, Cr PC so as to empower the Magistrate prosecution to be conducted by a proper person in place of the complainant."
The judgment in case Shri Balasaheb K Thackery 10 Raj Kumar Arora 2014.02.25 13:46 I attest to the accuracy and integrity of this document CRR-1665-2010 (O&M) and another (supra) does not lay down an absolute rule of law that in all defamation cases, the heirs of the deceased should necessarily be permitted to continue with the complaint. The effect of Section 199 Cr.P.C., was neither raised nor discussed.
Counsel for the respondent has placed strong reliance on Ashwin Nanubhai Vyas Vs. The State of Maharashtra and another, AIR 1967 SC 983. In the said judgment, Hon'ble the Apex Court had held that what happens on the death of a complainant in a case started on a complaint has to be inferred generally from the provisions of the Code. The said judgment does not deal with summons case as such, the observations will not be applicable. The judgment in case Ashwin Nanubhai Vyas (supra) was considered by Kerala High Court in Santhi Balagopal Vs.Benilde, 1995 (3) RCR (Crl.) 650 wherein it was observed as follows: -
"14. These pleas are unsustainable in view of the decision of the Supreme Court in Ashwin Vs. State of Maharashtra, AIR 1967 SC 983. It was held that though the Court cannot substitute a new complainant, it has power under Section 495 (of the old Code) to authorise conduct of prosecution by any person. The words "any person" would indubitably include the mother of the complainant. It is observed that Section 198 (of the Code of 1898) itself contemplates that a complaint may be made by a person other than the person aggrieved and 11 Raj Kumar Arora 2014.02.25 13:46 I attest to the accuracy and integrity of this document CRR-1665-2010 (O&M) there is no valid reason why in such a case it should be held that the death of the complainant puts an end to the prosecution. It is further observed that 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. The Supreme Court further held:
"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 appeals under sub-section 411-A (2) and 417 and on the death of an appellant in appeals except an appeal from a sentence of fine."
15. In the light of the principles enunciated by the Supreme Court in the aforesaid decision and on a consideration of the various decisions brought to my notice by learned counsel, I see no reason to differ from the views expressed in Jayarajan's case. The learned Judge in that case has also drawn attention to the report of the Law Commission in its Fortyfirst Report. The Law Commission observed 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. Since sub-section (2) of Section 256 has 12 Raj Kumar Arora 2014.02.25 13:46 I attest to the accuracy and integrity of this document CRR-1665-2010 (O&M) been introduced with this objective, the contention that the Magistrate has no option but to acquit the accused when the complainant is dead has only to be rejected. As held by this Court, the Magistrate can grant permission to the son of the deceased complainant in appropriate cases to proceed with the complaint. The decision in Jayarajan's case does not therefore requires reconsideration." The above said observations on the basis of Ashwin Nanubhai Vyas (supra) is to the effect that the decision should be left with the judicial discretion of the Court and the legal provision need only be that death and absence stands on the same footing. Sub section (2) of Section 256 Cr.P.C., has been introduced with this objective. The Magistrate can grant permission to the heirs of the deceased in appropriate cases to proceed with the complaint. It is again observed that the Kerala High Court was not dealing with summons case or provisions of Section 199 Cr.P.C.
Taking into consideration the entire relevance of Section 256 (2) Cr.P.C., read with Section 199 Cr.P.C., I am of the considered opinion that the trial Court has not exercised the discretion in appropriate manner by permitting the heir of deceased complainant to continue with the criminal proceedings under Section 500 of the Indian Penal Code. The finding of the trial Court is contrary to Section 199 Cr.P.C., as the respondent is not an aggrieved person under the Code of Criminal Procedure. 13 Raj Kumar Arora 2014.02.25 13:46 I attest to the accuracy and integrity of this document CRR-1665-2010 (O&M) The revision petition is allowed. Order dated 30.3.2010, passed by the Judicial Magistrate First Class, Ludhiana, is hereby set aside. The complaint of complainant Avjinder Singh, in the present circumstances of the case, would abate resulting in acquittal of the petitioners. The interim order dated 2.5.2011 stands vacated.
(M.M.S. BEDI) February 20, 2014. JUDGE rka 14 Raj Kumar Arora 2014.02.25 13:46 I attest to the accuracy and integrity of this document