Calcutta High Court
Gautam Ranjan Basu And Ors. vs Smt. Shanta Mukherjee And Anr. on 20 September, 1994
Equivalent citations: 1995CRILJ1131
ORDER N.K. Bhattacharyya, J.
1. By this revision the accused petitioners have challenged the order dated 17-12-93 passed in T. R. No. 231/93 arising out of complaint Case No. 1080/93 by the Judicial Magistrate, 10th Court, Alipur, 24 Pgs. (S) whereby the learned Magistrate permitted the opposite party No. 1 herein, the mother of the complainant, to conduct the case on demise of original complainant as contemplated under Section 302 of the Code of Criminal Procedure, 1973. The fact giving rise to this revision is that originally one Shri Ashok Mukherjee, was a tenant in respect of the entire ground floor including Garrage, Out-house, Servant Quarters, Courtyard at No. 33, Regent Park, Calcutta-700 040.
2. On the demise of Shri Ashok Mukherjee his daughter and wife Smt. Monika Bhattacharyya and Smt. Shanta Mukherjee became the tenant in respect of the said tenancy. The complainant Smt. Monika Bhattacharyya was residing in that building in the said tenancy along with her mother and in the Out-house of that tenancy a Kindergarten and junior school was there styled under the name of 'Narmada School' of which the mother of the complainant, Smt. Shanta Mukherjee, was the proprietor/principal.
3. On 24th June, 1993 the accused persons along with others trespassed in the tenancy of the complainant and her mother and assaulted the complainant and also insulted her. As the mother tried to rescue her the accused No. 3 assaulted her.
4. On this allegation the complainant Monika Bhattacharyya lodged a complaint and the same was registered as T. R. Case No. 231/93 in the Court of Judicial Magistrate, 10th Court, 24 Pgs. (S) arising, out or complaint Case No. 1080/93. The complaint was filed before the Court of the learned Sub-Divisional Magistrate, Alipore on 29-6-93. The learned Sub-Divisional Magistrate took cognizance on that complaint and transferred the case to the Court of another Judicial Magistrate being the 10th Court of the Judicial Magistrate, Alipore. The said learned Magistrate examined apart from the complainant the other witnesses and directed issuance process.
5. On 23-8-93 the accused persons 1 and 2 made a prayer under Section 205 of the Code of Criminal Procedure for dispensing with the personal attendance and that prayer was refused. The complainant was absent on that date and also absent on 16-8-93. On 30-11 -93 the learned Magistrate was informed that the complainant died on 16-9-93 and thereafter her mother Smt. Shanta Mukherjee made an application for substitution in place of deceased complainant and for permission to conduct the procedure. That prayer was allowed by the learned Magistrate by his impugned order dated 17-12-93.
6. The learned Advocate, Mr. Dipak Kumar Sengupta contended on behalf of the petitioners that upon the demise of the original complainant the accused petitioners are entitled to an order of acquittal under Sub-section (1) of Section 256 of the Code of Criminal Procedure. He further contended that Section 302 of the Code of Criminal Procedure, 1973 is controlled by the provision of Sub-section (1) of Section 256 of the Code of Criminal Procedure. In support of his contention he placed reliance on a Karnataka High Court decision in the case of Subbanna Hegde v. Dyavappa Gowda reported in 1980 Cri LJ 1405, where the Karnataka High Court took the view that upon the demise of the complainant whose sworn statement was recorded under Section 200 of the Code of Criminal Procedure, no person can be deemed to be a complainant however interested he may be in the case. Therefore, when summons was issued on the complaint and on the day appointed for the appearance of the accused the complainant does not appear because of his death, the only alternative left to the Magistrate is to acquit the accused in view of the clear and unambiguous provisions of Section 256 of the Code of Criminal Procedure, 1973. He also placed reliance on a decision of the Calcutta High Court in the case of Nanilal Samanta v. Rabin Ghosh , where the single Judge had held inter alia, that "Complainant" has not been defined in Criminal Procedure Code. But that can only mean the person who was examined as complainant under Section 200. No other person can be deemed to be a complainant however he may be interested in the prosecution of the accused or in the property which is the subject-matter of the alleged offence. If the complainant dies before presentation of the appeal, no other person, not even his legal heirs may have that right. In such a case the right to present an appeal from the order of acquittal shall be only of the State Govt. under Section 417(1). He also placed reliance on another single Bench decision of the Calcutta High Court in the case of Jagannath Ghosh v. Pasupati Nath Ghosh reported in 1993 Cr LR (Cal) 131. In that decision it has been held that the death of a complainant cannot ipso facto bring about the termination of the criminal proceeding and in that case the Magistrate is authorised to exercise his power under Section 495, Criminal Procedure Code by substituting another person or prosecution agency for conduct of the criminal case. Merely on the death of the complainant, the complaint filed by him cannot be dismissed nor the accused acquittpd or discharged under Section 247 or 259, Criminal Procedure Code. The decision of the Karnataka High Court in the case of Subanna Hegde (supra), and the decision of the Calcutta High Court in the case of Nanilal Samanta (supra), have been considered in that decision.
7. Mr. Sekhar Bose, learned Advocate contended on behalf of the opposite party No. 1 that Section 302 is not controlled by Sub-section (1) of Section 256 of the Code of Criminal Procedure. According to him the wording in the Sub-section (1) of Section 256 that "unless for some reasons he thinks it proper to adjourn the hearing of the case to some other day" leaves discretion within the learned Magistrate in a summon case to adjourn the case for some reasons. According to Mr. Bose 'same reason' may be reason of death as has been mentioned in Sub-section (2) of Section 256 of the Code of Criminal Procedure 1973. Mr. Bose further contended that by referring to subsection (1) of Section 302 that 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. He also referred to Sub-section (2) of Section 302 of Cr. P.C. 1973 for the purpose of showing that any person conducting the prosecution may do so personally or by a pleader. In the instant case, upon the demise of the complainant her mother who was also a victim in the incident dated 24th June, 1993, made a prayer for substitution and on her prayer permission was granted. That fact was referred to by Mr. Bose for the purpose of showing the propriety of the impugned order. Mr. Bose by referring to the decision of Jagannath Ghosh (supra) contended that this High Court had the occasion to consider the ratio of the Karnataka High Court's decision in Subbanna Hegde (supra) and the decision of the Calcutta High Court in Nanilal Samanta case (supra) and on such consideration the single Bench of this Court in Jagannath Ghosh case (supra) was held, that death of the complainant cannot ipso facto bring about the termination of the criminal proceeding and in that case the Magistrate is authorised to exercise his power under Section 495 (wrongly quoted) of the Code of Criminal Procedure. According to Mr. Bose the said Section is 302 of the Cr. P.C. 1973. He also referred to a decision of the Supreme Court in the case of Ashwin Nanubhai Vyas v. The State of Maharashtra , wherein the Supreme Court, inter alia, has held that there is no provision in the Criminal Procedure Code or Chapter 18 thereof about acquittal or discharge of accused on failure of complainant to attend, which is deliberate departure from Chapters on trials of summons and warrant cases, suggesting that Magistrate should proceed with committal enquiry although complainant is absent. This decision has little bear with the present case because that decision deals with a matter relating to committal enquiry proceeding by the Magistrate. This High Court had the occasion to deal with Section 302 of the Code of Criminal Procedure in the case of Hirak Kumar Ghosh v. Jitendra Mansata reported in (1978) 82 CWN 309, wherein the single Bench has held, inter alia, that if a criminal case can be filed by a person who is actually not aggrieved there is no reason why the complainant cannot be substituted by another complainant if he is dead or in a case where he is unable to come to Court on account of his old age and illness. This can be allowed by the Magistrate under Section 302 of the Code of Criminal Procedure, the High Court further took the view in that case that the High Court in its inherent powers under Section 482 can permit substitution of a complainant in a proper case.
8. Having heard the learned Advocates for the parties and after considering the materials on record I find that two single Benches of this High Court have taken the view that in case of demise of the complainant there cannnot be any ipso facto termination of the proceeding. A discretion has been left-open to the Magistrate to consider all the aspects of the matter and if he finds that there are materials for granting permission to conduct the proceeding by a person by substituting him in place of the deceased complainant, such permission can be granted. The Law Commission observed that "It is impracticable to detail the various situations that may arise and the considerations that may have to be weighed. We think, in the circumstances, 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. We trust this will in practice, work satisfactorily". On such recommendation Sub-section (2) has been incorporated in Section 256 of the Code of Criminal Procedure. That being the position the Magistrate has every power to allow substitution upon demise of the original complainant if he is satisfied from the surrounding circumstances and materials on record that such permission should be given. That satisfaction is to be subjective satisfaction derived from the records of the case and a satisfaction derived on fact as available on record.
9. On such fact after being satisfied the Magistrate is entitled to take a view. The Supreme Court in the case of Pasthumma v. Mohammad , has held inter alia that the High Court in its revisional jurisdiction was not justified in substituting its own view for that of the learned Magistrate on a question of fact. As the satisfaction for taking view by the learned Magistrate is based on a fact in revision the High Court is not authorised to take a different view on fact substituting the view of the learned Magistrate. That is the ratio laid down in Pasthumma's case (supra).
10. In view of my discussions above, I find no merit, in the revisional application and the same is accordingly dismissed.
There will be no order as to costs.