Jharkhand High Court
Bhakhan Das vs The State Of Jharkhand & Ors. ... ... on 29 January, 2019
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 318 of 2002
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Bhakhan Das ... Petitioner
Versus
The State of Jharkhand & Ors. ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Petitioner : Mr. M.K. Dubey, Advocate
Mr. D.N. Rajak, Advocate
For the State : Addl. P.P.
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Order No.14 Dated- 29.01.2019
I.A. No.7732 of 2018
This interlocutory application has been filed with a prayer to allow the applicant who is the son of the revisional petitioner to pursue this revision.
It is submitted by the learned counsel for the petitioner that the sole revision petitioner Bhakhan Das who was the informant of the case died on 27.10.2017. Hence, it is submitted that the petitioner be permitted to prosecute the criminal revision petition before this Court. In support of this case, learned counsel for the petitioner relied upon the judgment of Hon'ble Supreme Court in the case of Chand Devi Daga & Ors. vs. Manju K. Humatani & Ors. reported in (2018) 1 SCC 71 wherein the Hon'ble Supreme Court has held as under in paragraph nos. 13 and 14 as under:-
"13. This Court had the occasion to consider Sections 256 and 302 in Balasaheb K. Thackeray v. Venkat. In the above case 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 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 complaint be dismissed on the ground that complainant had died. 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 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 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.
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 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 referring to this Court's judgment in Ashwin Nanubhai Vyas had held that heirs of the complainant can continue the prosecution. 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 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, 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. ..."
Further the learned counsel for the petitioner relied upon the order dated 21.08.2018 passed by a coordinate Bench of this Court in Criminal Revision No.260 of 1999 (R).
Learned Addl. P.P. submits that in view of the settled principle of law settled by the Hon'ble Supreme Court of India in the case of Chand Devi Daga & Ors. vs. Manju K. Humatani & Ors.(supra) the applicant Pappu Das may be permitted to prosecute this criminal revision.
No one turns up on behalf of the opposite party in-spite of repeated calls.
Considering the aforesaid facts of the case, the applicant Pappu Das is permitted to prosecute this criminal revision.
This interlocutory application is disposed of accordingly.
(Anil Kumar Choudhary, J.) Cr. Rev. No. 318 of 2002 List this criminal revision under the heading 'for Hearing' in due course.
(Anil Kumar Choudhary, J.) Sonu/Gunjan-