Himachal Pradesh High Court
Jai Singh vs . Kishori Lal & Others on 3 October, 2024
Jai Singh vs. Kishori Lal & Others Cr. MMO No. 793 of 2022 Reserved on 03.09.2024.
03.10.2024 Present:Mr. Y.P. Sood, Advocate, for the petitioner.
Mr. Narender Singh, Advocate, for respondent No.1.
Ms. Ayushi Negi, Deputy Advocate General for respondents No.2 and 3/State.
Cr. M.P No. 2 of 2024 The applicant has filed the present application under Section 482 of Cr.P.C. to bring on record the legal representatives of the deceased petitioner. It has been asserted that the father of the applicant late Sh. Jai Singh filed a petition against the report submitted by the police in FIR No. 141 of 2018, dated 17.10.2018 for the commission of offences punishable under Sections 451, 323, 504, 506 and 341 of the Indian Penal Code (hereinafter referred to as IPC) registered in Police Station Rohru, District Shimla, H.P. Jai Singh expired on 16.06.2023. He had lodged an FIR pertaining to the incident of criminal trespass and causing injuries to him and the present applicant. The police submitted a cancellation report which was accepted by the learned Trial Court. The deceased filed the present petition challenging the acceptance of the cancellation report by the learned Magistrate and the dismissal of the protest petition filed by him. The applicant had also sustained injuries in the incident and he, being the victim, is entitled to continue with the present proceedings. Hence, the application for substituting the applicant as a legal representative.
2. The application is opposed by the State by filing a reply making a preliminary submission regarding lack of maintainability. The contents of the application were denied on merits. It was asserted that the applicant is not entitled to continue the proceedings as his father Jai Singh and not he was the complainant in the FIR. The police conducted the investigation and filed a cancellation report in the matter. This report was accepted by the competent Court. A cross FIR was lodged regarding the incident in which a chargesheet was filed and learned Additional Chief Judicial Magistrate, Court No.1 convicted original petitioner Jai Singh and present applicant Sunil Chauhan. They filed an appeal which was allowed by the learned Additional Sessions Judge, CBI Court, Shimla. The learned Trial Court had rightly accepted the cancellation report and rightly rejected the protest petition filed by the deceased. No provision entitles the applicant to continue with the proceedings. In case the application is allowed, it would set up a wrong precedent and would be detrimental to the administration of justice. Hence, it was prayed that the present application be dismissed.
3. I have heard Mr. Y.P. Sood, learned counsel for the applicant and Mr. Narender Singh learned counsel for respondent No.1/accused and Ms. Ayushi Negi, learned Deputy Advocate General for respondents No. 2 and 3/State.
4. Mr. Y.P. Sood learned counsel for the applicant submitted that the applicant is the legal heir of the deceased and is entitled to continue with the present proceedings. He is also a victim and had suffered injuries in the incident; therefore, he has a right to continue the present proceedings. He relied upon the judgments of Chand Devi Daga v. Manju K. Humatani, (2018) 1 SCC 71: (2018) 1 SCC (Cri) 264: 2017 SCC OnLine SC 1282 and Ashwin Nanubhai Vyas v. State of Maharashtra, 1966 SCC OnLine SC 253: (1967) 1 SCR 807: (1967) 2 SCJ 419: 1967 CRI LJ 943: AIR 1967 SC 983 in support of his submission.
5. Mr. Narender Singh, learned counsel for respondent No.1/accused submitted that there is no provision in the Cr. P.C. which enables the legal representatives of the deceased to continue with the proceedings initiated by the deceased. The application is not maintainable. Therefore, he prayed that the present application be dismissed.
6. Ms. Ayushi Negi, learned Deputy Advocate General for respondents No. 2 and 3/State also adopted these submissions and submitted that the provision of substitution of the legal representative does not apply to the criminal proceedings. The application has been filed without any basis; therefore, it was prayed that the present application be dismissed.
7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
8. It was laid down by the Hon'ble Supreme Court in Ashwin Nanubhai Vyas (supra) that a criminal proceeding does not abate on the death of the complainant and the Court has the power to substitute another prosecution agency in the place of the deceased. It was observed:
"9. In support of his contention, Mr Keswani has cited some cases of the High Courts in which on the death of the complainant the prosecution was held to have abated. Chief among them are Ishwardas v. Emperor [7 CrLJ 290], Ramanand v. Crown [40 IC 1008] and Labhu v. Crown [52 IC 797]. The first of these cases was a prosecution for defamation and the second was a trial for an offence under Section 323 of the Indian Penal Code. The third followed the second. The first two cases here mentioned were overruled by the Lahore High Court in Hazara Singh v. Crown [ILR 2 Lah 27] wherein it was laid down that such cases do not necessarily abate. Mr Keswani also relied upon several cases which arose under Section 417(3) and 476-B of the Code of Criminal Procedure in which appeals were held to have abated. We need not refer to these cases because they arose under different circumstances and were certainly not inquiries with a view to committal under Chapter XVIII of the Code. Mr Hathi, who appeared on behalf of the State of Maharashtra, drew our attention to many later cases in which it has been held (dissenting from the cases relied upon by Mr Keswani) 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. 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. Reference may, however, be made to the following: Emperor v. Nurmohammed [8 CrLJ 190], Emperor v. Mauj Din [AIR 1924 Lah 72: 4 Lah 7], U Tin Maung v. King [AIR 1941 Rang 202], Mohammed Azam v. Emperor [AIR 1926 Bom 178] and In re Ramasamier [AIR 16 Cr LJ 713]. None of the cases cited either for one side or the other directly arose under Section 198 first part in a committal proceeding. The latter view is distinctly in favour of allowing the prosecution to continue except in those cases where the Code itself says that in 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 Section 198 requires is the removal of the bar. The appeal fails and it will be dismissed."
9. This position was reiterated in Chand Devi Daga (supra) wherein it was observed at page 76:
"13. This Court had the occasion to consider Sections 256 and 302 in Balasaheb K. Thackeray v. Venkat [Balasaheb K. Thackeray v. Venkat, (2006) 5 SCC 530: (2006) 2 SCC (Cri) 630]. In the above case, the complaint was filed under Section 500 read with Section 34 IPC. A petition was filed under Section 482 of the 1973 Code 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 [Balasaheb K. Thackeray v. Venkat, SLP (Cri) No. 4367 of 2003, order dated 31-10-2003 (SC), wherein it was directed: "Issue notice. Mr Ravindra Keshavrao Adsure, learned counsel takes notice on behalf of Respondent 1 and seeks two weeks' time for filing a counter-
affidavit. Time prayed for is granted. One week's time thereafter is granted for rejoinder-affidavit. Stay of further proceedings."] and during the pendency of the appeal it was noted that the complainant had died. It was contended that the complaint be dismissed on the ground that the complainant is dead. This Court in the above context referred to Sections 256 and 302. This Court repelled the argument of the appellant that the complaint be dismissed on the ground that the complainant had died. The following was held in paras 3 to 6: (SCC pp. 531-32) "3. The 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 the 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 [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943] with reference to Section 495 of the Code of Criminal Procedure, 1898 (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 [Jimmy Jahangir Madan v. Bolly Cariyappa Hindley, (2004) 12 SCC 509: 2004 SCC (Cri) Supp 317] after referring to Ashwin case [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943] 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.
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 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:
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.'
6. To bring in an 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 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 Jimmy Jahangir Madan v. Bolly Cariyappa Hindley [Jimmy Jahangir Madan v. Bolly Cariyappa Hindley, (2004) 12 SCC 509: 2004 SCC (Cri) Supp 317] referring to this Court's judgment in Ashwin Nanubhai Vyas [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943] had held that heirs of the complainant can continue the prosecution. The following was held in para 5: (SCC p. 512) "5. The question as to whether the heirs of the complainant 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 Ashwin Nanubhai Vyas v. State of Maharashtra [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943] in which case the Court was dealing with a case under Section 495 of the Code of Criminal Procedure, 1898, which is 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, the mother of the complainant could be allowed to continue the prosecution. It was further laid down that she could make the application 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. ..."
15. In view of what has been discussed above, we are of the view that the High Court did not commit any error in allowing the legal heirs of the complainant to prosecute the criminal miscellaneous petition before the High Court. We do not find any error in the order of the High Court. The appeal is dismissed."
10. Therefore, in view of the binding precedents of the Hon'ble Supreme Court, the Court has the power to permit any person other than the complainant to continue with the criminal proceedings. Hence, the submission on behalf of the respondents that no provision in the Cr.P.C. entitles the legal representative of the deceased to continue with the proceedings is not acceptable.
11. It was not disputed that the applicant is the legal representative of the deceased. He claimed that he had sustained injuries. Therefore, he has a right to continue the proceedings being a legal heir as well as a victim. Consequently, the present application is allowed and the applicant is permitted to be brought on record as the legal representative of the deceased.
Necessary corrections be made in the amended memo of parties.
12. Amended memo of parties be filed within two weeks.
13. The present application stands disposed of.
Cr. MMO No. 793 of 202214. List for hearing in due course.
(Rakesh Kainthla) Judge 3rd October, 2024 (Nikita) Digitally signed by KARAN SINGH GULERIA Date: 2024.10.03 13:21:34 IST