Delhi District Court
Ghanshyam Dass vs Chhaya Vashist on 8 December, 2009
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE04 (North): DELHI
CR No.22/08
Ghanshyam Dass
S/o Late Sh. Ganga Ram,
4064, Naya Bazar,
Delhi - 110006. .....Petitioner.
V E R S U S
1. Chhaya Vashist
W/o Sh. Ajay Vashisht
R/o JA23/A, Ashok Vihar,
Delhi.
2. State
3. Sh. Kishan Lal
S/o Sh. Teru Ram
4. Sh. Narender Kumar
S/o Sh. Madan Mohan
5. Sh. Madan Mohan
S/o Sh. Kishan Lal,
All R/o Mustakil No.7,
Ka Khasra No.7/1, Asha Vihar,
Kamalpur (Tomar Colony),
Behind M.C.D. School,
Burari, Delhi. .....Respondents.
Ghanshyam Dass Vs. Chhaya Vashist & Ors. (CR No.22/08) Page No. 1 of pages 10
J U D G M E N T
1. Aggrieved by the order dated 10.05.2007 passed by Ld. MM/Delhi in complaint case bearing CC 4510/1 PS Timar Pur titled as Chhaya Vashist Vs. Madan Mohan etc. U/s 447/468/471/34/120B IPC whereby the applicant Chhaya Vashist (respondent no.1 herein) on the expiry of Sh. J.S. Gaur (the original complainant) was permitted to step in the shoes of her deceased father as a complainant and to prosecute the complaint further in place of her father, the revisionist Ghanshayam Dass has preferred the instant revision petition U/s 397 Cr.P.C. and praying for setting aside the impugned order dated 10.05.07 and also for dismissal of the said complaint.
2. The facts in brief as per the case of the complainant before the trial court that there was partnership firm in the name of M/s Gupta International and one of its partners Smt. Kiran Gaur on 05.02.90 sold the plot in question i.e plot No. 70, measuring 45 x 60' of 300 Sq. Yds. of Mustakil No. 7 Ka Khasra No. 9, Mazra Kamalpur Ilaka Burari Delhi to Ghanshyam Dass Vs. Chhaya Vashist & Ors. (CR No.22/08) Page No. 2 of pages 10 Smt. Chhayawati, the complainant. On 06.06.99, the complainant received an information that the accused persons(named before the trial court) constructed a room in the aforesaid plot of the complainant. The complainant party demolished the same in the morning and a case FIR No.89/99 U/s 447/34 IPC was registered at PS Timar Pur. The case was investigated into by the police and charge sheet was filed before the court. However, being not satisfied with the investigation the complainant Sh. J.S. Gaur preferred to adduce additional evidence before the court through the said complaint case. During the pendency of the said complaint, Sh. J.S. Gaur died, however, no summoning order was passed by the court till the death of Sh. J.S. Gaur which took place on 27.02.2007. On 23.03.2007, an application for substitution of complainant was moved and the same was taken on 10.05.2007. On 10.05.2007, the application was allowed and Smt. Chhaya Vashist was made complainant in place of Sh. J.S. Gaur and the case was adjourned for 12.05.2007 for arguments. On 12.05.2007, Ld. MM/Delhi was on Ghanshyam Dass Vs. Chhaya Vashist & Ors. (CR No.22/08) Page No. 3 of pages 10 leave and on 14.05.2007, just after two days, the Ld. MM passed the summoning order against the revisionist as well as respondent Madan Mohan, Narender Kumar, Iswar Munshi and Rajender Babbar for 24.05.2007.
3. The revisionist is assailing the impugned order dated 10.05.2007 on the following grounds:
(a). That the impugned order dated. 10.05.07 as well as the orders dated 14.05.07, 24.05.07 and 31.05.07 have been passed on surmises and conjunctures and without application of mind.
(b). Even otherwise the complaint filed by Sh. J. S. Gaur is not maintainable as the same case was already been registered vide FIR No. 294/99 U/s 447 IPC PS Timar Pur.
(c). Sh. J. S. Gaur was having no locus standi to file the complaint and the summoning orders have been passed under bias manner. It is also added that the accused persons have been falsely implicated in the case and even two accused persons were sent behind the bars in the complaint case despite of the fact that they were on bail in the state case.
Ghanshyam Dass Vs. Chhaya Vashist & Ors. (CR No.22/08) Page No. 4 of pages 10
(d). It is also claimed that the order dated. 10.05.07, is against the settled provisions of law because no person can be substituted on the death of the complainant in a complaint case. However, in this case the daughter of Sh. J. S. Gaur was made complainant in place of Sh. J. S. Gaur. It is also claimed that the summoning order dated 14.05.07, is also liable to be set aside as the trial court has failed to consider that the alleged sale documents are not registered and Smt. Kiran Gaur, W/o Sh. J. S. Gaur has no right, title or interest to sell the said property to anyone in any manner whatsoever and the complainant in collusion and in connivance with his family members has concealed the material fact that all the defendants in the Civil suit filed by the petitioner since 1999 in suit for dissolution of Partnership, declaration, rendition of account and permanent injunction where stay order was passed on 29.06.99 by the then Ld. ADJ and the same is pending in a civil court, Delhi. Sh. J. S. Gaur in connivance with Smt. Kiran Gaur has sold out several plots without the permission and consent of the revisionist.
It is also alleged that the present complaint is a counter blast to the suit of the petitioner which was filed in June, Ghanshyam Dass Vs. Chhaya Vashist & Ors. (CR No.22/08) Page No. 5 of pages 10 1999 and the same is still pending.
(e). The Ld. MM has wrongly merged the state case alongwith the complaint case U/s 210 Cr.P.C., whereby the complaint case was ordered to be treated as State case which is in contravention of Section 210 Cr.P.C.
4. The notice of the petition were issued to the respondents and Ld. Addl. PP made his appearance on behalf of respondent No. 2 i.e State , whereas, respondent No. 4 Narinder Kumar appeared for respondent No. 3, 4 & 5. Although, initially respondent No. 1 made her appearance through her counsel but subsequently nobody appeared on her behalf. Then having perused Ld. Trial Court record, I have proceeded to dispose off the matter on merits after hearing the submissions of the petitioner and the respondents present.
5. In the instant petition the revisionist is assailing the order dated 10.05.07, whereby Smt. Chhaya Vashist (the daughter of the original complainant Sh. J.S. Gaur) has been allowed to step in the shoes of the complainant in the event of his death and to proceed further in the matter Ghanshyam Dass Vs. Chhaya Vashist & Ors. (CR No.22/08) Page No. 6 of pages 10 as a complainant. The complainant Sh. J. S. Gaur was having no locus standi and the complaint case was filed merely to create pressure on the innocent petitioner as well as other persons, who have been falsely rolled in the case. The impugned order dated 10.05.2007 as passed by Ld. MM is illegal and against the settled provisions of law, because no person can be substituted on the death of a complaint in a complaint case, however, the daughter of Sh. J.S. Gaur has been made complainant in his place.
6. I have carefully heard the rival submissions of the counsels for the parties. I have also perused the entire material placed on record particularly the impugned order, the contents of the revision petition specially the grounds taken therein and the Trial Court record.
7. Section 256 of Code of Criminal Procedure deals with the eventualities of non appearance or death of the complainant after filing of the complaint by the complainant before the court.
8. Sub Section 1 of Section 256 provides that if summons has been Ghanshyam Dass Vs. Chhaya Vashist & Ors. (CR No.22/08) Page No. 7 of pages 10 issued on complaint and on the day appointed for appearance of accused or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall acquit the accused, unless for some reasons he thinks it proper to adjourn the hearing the case to some other day. The provisions of sub section 1 is also applicable to the cases where the non appearance of the complainant is due to his death.
9. In 1970 Cr.L.J 59 (Mys.) by following the judgment of Hon'ble Apex Court reported as Air 1967 SC 983 titled as Nanu Bhai Vyas Vs. State of Maharastra, it was held that, "the Magistrate has in a proper case discretion to allow the complaint to continue by proper and fit complainant."
In 1984 Cr.L.J 1326 (AP), it was held that, "criminal prosecution of a person does not abate merely on the complainant's death."
In Ashok Kumar Vs. Abdul Latif (1989) Cr.L.J 1956 (J&K) it was held that, "merely on a death of a complainant, the complaint can not be dismissed. Court can substitute another person or prosecuting agency for Ghanshyam Dass Vs. Chhaya Vashist & Ors. (CR No.22/08) Page No. 8 of pages 10 conduct of the case."
In a Gauhati case, order allowing petitioner a son of complainant to conduct prosecution and to allow him to appoint a pleader of his choice to represent him and to allow the proceeding to continue was held proper in 2005 Cr.L.J 599 (Gau.).
In Ajay Kumar Aggarwala Vs. State of Jharkhanad 2003 Cr.L.J 3088 (Jhar.) it was held that, "the court has discretion to proceed with the trial either in the absence or death of the complainant. Mere death of a complainant can not ipso facto terminate the criminal proceedings. When the son of the complainant has stepped in and wanted to continue with the case, section 256 sub section 2 Cr.P.C. could not have come to the rescue of the accused persons in any manner.
In S. Reddappa Vs. Sri Vijaya M., 1997 Cr.L.J 98 (Kant) it has been held that, "Summons case instituted on private complaint does not abate on the death of the complainant."
In Bhag Singh Vs. State of Punjab, 2001 Cr.L.J 2997 (P&H) it was held that, "Legal heirs of complainant on his death are entitled to pursue complaint."
Ghanshyam Dass Vs. Chhaya Vashist & Ors. (CR No.22/08) Page No. 9 of pages 10 In Harbans Singh Vs. Gulzar Singh 2001 Cr.L.J 2999 (P&H) it was held that, "The Magistrate is empowered to proceed with case even where complainant expired during pendency of criminal proceedings."
10. In the light of aforesaid settled law, I find no infirmity or irregularity in the impugned order dated 10.05.2007 passed by Ld. MM/Delhi and therefore, I find no substance in the revision petition as filed by the petitioner and as such the same is liable for dismissal and the same is dismissed accordingly.
11. Copy of the judgment alongwith TCR (which is lying in the revision petition bearing CR No.24/08) be sent to the Ld. Trial Court for proceeding further in the matter as per law.
12. Revision file be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR) court today on 08.12.2009) ASJ04 (NORTH)/DELHI Ghanshyam Dass Vs. Chhaya Vashist & Ors. (CR No.22/08) Page No. 10 of pages 10