Delhi District Court
Hans Raj Chopra & Ors. vs . J.N. Sharma on 27 August, 2011
Crl. Rev. No. : 89/2011
Hans Raj Chopra & Ors. Vs. J.N. Sharma
CC No. : 204/2008
P.S: Roop Nagar
U/s: 420/463/468 IPC
27.8.2011
Present: None.
1. On the last date of hearing, I had heard arguments from counsels
for both the parties.
2. Petitioner is aggrieved with the order dated 31.5.2011 passed by
Ld. ACMM whereby Ld. ACMM has allowed the application of substitution
filed by the respondent in trial court in CC No. 204/08 titled as J.N. Sharma
Vs. Hans Raj Chopra & Ors.
3. In brief facts giving rise to the present revision are that the father of respondent had filed a complaint against the petitioner in the trial court and he was prosecuting the complaint but unfortunately he expired on 17.11.2010. Thereafter the respondent i.e. the son of complainant who was earlier prosecuting the complaint as Attorney of the complainant moved an application for substitution in place of complainant which has been allowed by the trial court vide order dated 31.5.2011 and it is against this order that the present revision has been filed by the petitioner.
4. Counsel for petitioner argued that the permission for prosecution can be sought U/s 302 of Cr.P.C. which has not been done in the instant case and the respondent has sought to be substituted without disclosing the provisions and therefore the order is bad in law and is liable to be set aside. Crl. Rev. No. : 89/2011 1/4
5. On the other hand, Ld. Counsel for respondent argued that there is no infirmity or illegality in the order of Ld. Trial court and same is liable to be upheld.
6. Complainant in the present case has expired and the respondent i.e. son of complainant has sought permission to be substituted in place of his father.
7. Ld. Counsel for petitioner himself has relied upon 2006 (5) Supreme Court Cases 530 titled as Balasaheb K. Thackeray & Anr. Vs. Venkat Alias Babru, Despande Charthankar & Anr. wherein it has been held by Hon'ble Supreme Court that "Criminal Procedure Code, 1973 Ss. 256 and 302 - Permission to continue prosecution after complainant's death
- Right of legal heirs of deceased complainant - Held, they can file petition U/s 302 Cr.P.c. seeking the said permission - if any such permission is sought for by the said heirs, the same has to be considered in its perspective by the court dealing with the matter - Criminal Procedure Code, 1898, S. 495 ."
8. In the present case also the legal heir i.e. son of the complainant who was also the Attorney of complainant has sought permission to continue the proceedings which can also be termed that he has sought substitution in place of complainant. Merely because no provisions are mentioned in the application filed by the respondent is no ground to throw away the application of the respondent or to allow the revision of the petitioner. Technicalities should not come into the way of justice. The authoritative pronouncement cited by the counsel for petitioner himself states that Crl. Rev. No. : 89/2011 2/4 proceedings can be continued by the legal heirs U/s 302 of Cr.P.C. and the legal heirs can move an application for the same. Merely because the respondent has not mentioned the provisions under which he has moved the said application is no ground to throw away the application of respondent.
9. Furthermore in (2007) 3 Supreme Court Cases 548 titled as Rashida Kamaluddin Syed & Anr. Vs. Shaikh Saheblal Mardan & Anr. it has been held by Hon'ble Supreme Court that " Criminal Procedure Code, 1973 - Ss. 302 and 239 - Continuation of prosecution by legal heirs of deceased complainant - Pursuant to complaint filed by respondent's father against his daughter and son in law (appellants) alleging commission of offences under Ss. 406 and 420 IPC, magistrate issued process under s. 204
- But during pendency of proceedings complainant died - Immediately thereafter deceased's sons sought permission to continue the prosecution - Magistrate passed order allowing the application and granting permission to respondent no. 1 to continue the prosecution - That order, having not been challenged by appellants, became final - Thereafter witnesses were also examined and written arguments submitted by appellantaccused - Application then file by appellants under s. 239 for their discharge contending that no case made out against them - Application rejected by trial court holding that there was prima facie case against appellants - Revision there against also dismissed - Held, on death of complainant, the case did not abate and therefore, it was open to deceased's sons to apply for continuation of proceedings against accusedappellants - By granting such prayer no illegality committed by courts - Having regard to the facts of the Crl. Rev. No. : 89/2011 3/4 case and also the fact that the application under s. 239 for discharge of accused was only on ground that no prima facie case made out against them, this is not a fit case to exercise discretionary power under Art. 136 - Constitution of India, Art. 136 ."
10. Similar view has been taken by Hon'ble Jammu & Kashmir High Court in Ashok Kumar Vs. Abdul Latif & Ors. 1989 (2) RCR 575.
11. In view of these authoritative pronouncements, the respondent has every right to continue the proceedings or to be substituted in place of complainant being the legal heir of complainant. Respondent in the present case was also pursuing the case of complainant as his Attorney.
12. As such, there is no infirmity or illegality in the order dated 31.5.2011 passed by Ld. ACMM. Same is, therefore, upheld and present revision filed by the petitioner is dismissed. Trial Court Record alongwith copy of this order be sent back. Revision file be consigned to Record Room.
(MADHU JAIN) ASJ01(N)/DELHI 27.8.2011 Crl. Rev. No. : 89/2011 4/4