Patna High Court - Orders
Mridula Singh And Anr vs State Of Bihar And Anr on 25 January, 2019
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.41386 of 2017
Arising Out of PS. Case No.-47 Year-2016 Thana- SAHJAHANPUR District- Patna
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1. Mridula Singh W/o Chandra Prasad,
2. Vivek Kumar Son of Late Dr. V.K. Singh, Both R/o Flat No. 43, Prakash Kunj
Apartment , West Nageshwar Coloney, Boring Road, P.S.- Buddha Colony,
District- Patna. .. ... Petitioner/s
Versus
1. State Of Bihar
2. Shivshankar Prasad Son of Late Kailash Prasad, R/o Village- Nizamat, P.O.
andP.S.- Dhanrua, District- Patna. ... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Rama Kant Sharma, Sr. Adv.
Mr.Nikhil Kumar Agrawal, Adv
For the Opposite Party/s : Mr. Narendra Kumar Singh, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL ORDER
8 25-01-2019Heard learned counsel for the petitioner as well as learned APP.
2. O.P. No.2, Shivshankar Prasad, since deceased, had filed Complaint Case No. 702/2016 which was sent to the local police for registration and investigation. Consequent thereupon, Shahjahanpur PS Case No. 47/2016 has been registered, investigated upon, and after concluding the same, charge-sheet was submitted on the basis of which vide order dated 20.01.2017, cognizance of offence against other accused had already been taken. Later on, supplementary charge-sheet has been submitted against the petitioners and others whereupon, order dated 07.07.2017 (order impugned) has been passed, subject matter of instant petition.
3. After hearing learned counsel for the petitioners Patna High Court Cr.Misc. No.41386 of 2017(8) dt.25-01-2019 2/10 vide order dated 14.08.2018, informant/OP No.2 was directed to be noticed, meanwhile, further proceedings before the learned lower court relating to the petitioners were stayed. Accordingly, notice was issued and the execution report is on the record divulging the death of OP No.2.
4. Consequent thereupon, vide order dated 25.10.2018, a report was asked for from the learned lower court whether any substitution has been sought for at the end of any of the legal heir of the deceased and the report is available on the record communicated vide letter no. 347 dated 06.12.2018 divulging that no such petition has been filed up till now.
However, the petitioners have filed I.A. No. 1/2019 asking for substitution of the OP No.2 (since deceased) through his legal heirs so detailed under para-2 of the petition.
5. During course of hearing a crucial question arose for consideration is whether substitution could be allowed or not. At an earlier occasion, under Cr. Misc. No. 37752/2012 with Cr.Misc. No. 30616/2012 vide order dated 07.05.2015 as well as 14.05.2015, a Bench of this Court had considered the issued and dealt with the relevant provision relating thereto and further, though no specific finding has been recorded but, direction has been given to the Registrar General in the Patna High Court Cr.Misc. No.41386 of 2017(8) dt.25-01-2019 3/10 following words:-
"Let the Registrar General of the Court implement this order in respect of such interlocutory application which are received in the Criminal Filing Sections of the Court. At the time of receiving such applications, the Officer manning the Section of the Court shall refuse acceptance of such petitions."
6. The Bench had considered that a proceeding under Section 145 CrPC, there is provision for substitution but, no such provision is found with regard to conduction of trial relating to Sessions Trial, Warrant Trial, Summon Trial. The Bench also considered presence of Section 302 CrPC whereunder one has to take leave from the court to proceed with the trial and in likewise manner, Section 394 CrPC, specifically related with the appeal. However, no positive finding on that very score has been given, more particularly, the intention of the legislature by way of introducing Section 256 as well as 302 CrPC.
7. Be that as it may, in Chand Devi Daga v. Manju.
K. Humatani as reported in AIR 2017 SC 5126 whereunder prosecution was for an offence punishable under Section 420, 467, 468, 471, 120B, 201 and 34 IPC wherein one Smt. Chandra Narayan Das, petitioner, had filed Criminal Misc. petition, died and her heirs were substituted, questioned. Concurring with the Patna High Court Cr.Misc. No.41386 of 2017(8) dt.25-01-2019 4/10 view of the High Court allowing substitution, specific provision of the CrPC has minutely been dealt with and for better appreciation, the same is quoted hereinbelow:-
8. Section 256 of Code of Criminal Procedure, 1973 is contained in Chapter XX with the heading "Trial of summonscases by Magistrates". Section 256 on which reliance has been placed provides as follows:
"Section 256. Nonappearance or death of complainant.(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
(2) The provisions of subsection (1) shall, so far as may be, apply also to cases where the nonappearance of the complainant is due to his death."
9. Analogous provision to Section 256 of Code 1973 was contained in Section 247 of Criminal Procedure Code, 1898. In Section 247 the proviso was added in 1955 saying that "where the Magistrate is of the opinion that personal attendance is not necessary, he may dispense with such attendance". The said proviso took out the rigour of the original rule and whole thing was left to the discretion of the Court. Subsection (1) of Section 256 contains the above proviso in the similar manner. Thus, even in case of trial of summonscase it is not necessary or mandatory that after death of complainant the complaint is to be rejected, in exercise of the power under proviso to Section 256(1), the Magistrate can proceed with the complaint. More so, the present is a case where offence was alleged under Sections 420, 467, 468, 471, 120B and 201 read with 34 IPC for which procedure for trial of summonscase was not applicable and there is no provision in Chapter XIX "Trial of warrant cases by Magistrates"
containing a provision that in the event of death of complainant the complaint is to be rejected. The Magistrate under Section 249 has power to discharge a case where the Patna High Court Cr.Misc. No.41386 of 2017(8) dt.25-01-2019 5/10 complainant is absent. The discharge under Section 249, however, is hedged with condition "the offence may be lawfully compounded or is not a cognizable offence". Had the Code 1973 intended that in case of death of complainant in a warrant case the complaint is to be rejected,the provision would have indicated any such intention which is clearly absent.
10. In this context a reference is made to judgment of this Court in Ashwin Nanubhai Vyas Vs. State of Maharashtra, AIR 1967 SCC 983. In the said case this Court had occasion to consider the provisions of Criminal Procedure Code, 1898. The complainant had filed a complaint against the appellants. The complaint was filed under Sections 498 and 496 IPC. Accused was summoned. However, during the pendency of the complaint, the complainant died. The complainant's mother applied for substituting her to act as complainant and continue the proceedings. Magistrate permitted the mother of complainant to pursue the complaint against which revision was filed before the High Court which was dismissed. Aggrieved by the order of the High Court the appellant had come up before this Court. In the above context this Court considered the pari materia provisions of the Criminal Procedure Code, 1898 with regard to Section 247 (now Section 256) it was specifically held that said provision does not furnish any valid analogy. In paragraph 4 of the judgment following was observed:
"4 Mr. Keswani for Vyas, in support of the abatement of the case, relied upon the analogy of Section 431 under which appeals abate and Sections 247 and 259 under which on the complainant remaining absent, the court can acquit or discharge the accused. These analogies do not avail him because they provide for special situations. Inquiries and trials before the court are of several kinds. Section 247 occurs in Chapter XX which deals with the trial of summons cases by a Magistrate and Section 259 in Chapter XXI which deals with trial of warrant cases before Magistrates. Under the former, if summons is issued on a complaint and the complainant on any day remains absent from the court, unless it decides to proceed with the trial, must acquit the accused. This can only happen in the trial of cases, which are punishable with imprisonment of less than one year. This not being the trial of a summons case but a committal inquiry, Section 247 neither applies nor can it furnish any valid analogy. Similarly, Section 259, which occurs in the Chapter on the trial of warrant cases, that is to say cases triable by a Magistrate and punishable with imprisonment exceeding one year can furnish no analogy. Under Section 259, if the offence being tried as a warrant case is compoundable or is not cognizable the Magistrate may Patna High Court Cr.Misc. No.41386 of 2017(8) dt.25-01-2019 6/10 discharge the accused before the charge is framed if the complainant remains absent. Once again this section cannot apply because the Presidency Magistrate was not trying the case under Chapter XXI."
11. This Court further had occasion to consider Section 495 of Code 1898 (now Section 302 of Criminal Procedure Code) and this Court laid down in paragraph 7 as follows:
"7 Mr. Keswani contends that the Presidency Magistrate has made a "substitution" of a new complainant and there is nothing in the Code which warrants the substitution of one complainant for another. It is true that the Presidency Magistrate has used the word "substitute" but that is not the effect of the order. What the Presidency Magistrate has done is to allow the mother to act as the complainant to continue the prosecution. This power was undoubtedly possessed by the Presidency Magistrate because of Section 495 of the Code by which Courts are empowered (with some exceptions) to authorise the conduct of prosecution by any person. The words 'any person' would indubitably include the mother of the complainant in a case such as this. Section 198 itself contemplates that a complaint may be made by a person other than the person aggrieved and there seems to us no valid reason why in such a serious case we should hold that the death of the complainant puts an end to the prosecution."
12. At this stage reference to Section 302 of the Criminal Procedure Code is necessary. Section 302 of the Criminal Procedure Code is contained in Chapter XXIV with the heading "General provisions as to inquiries and trials". Section 302 relates to permission to conduct prosecution which is to the following effect:
" Section 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 Patna High Court Cr.Misc. No.41386 of 2017(8) dt.25-01-2019 7/10 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."
13. This Court had occasion to consider Sections 256 and 302 in Balasaheb K. Thackeray & Anr. Vs. Venkat @ Babru, (2006) 5 SCC 530. In the above case complaint was filed under Section 500 read with Section 34 IPC. A petition was filed under Section 482 of the Code 1973 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 complainant had died. It was contended that the complaint be dismissed on the ground that 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 paragraphs 3 to 6:
"3. 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 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:
Patna High Court Cr.Misc. No.41386 of 2017(8) dt.25-01-2019 8/10 "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 Vs. Bolly Caiyappa Hindley (dead) By Lrs., (2004) 12 SCC 509 referring to this Court's judgment in Ashwin Nanubhai Vyas (supra) had held that heirs of complainant can continue the prosecution. Following was held in paragraph 5:
"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 the case of 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 Patna High Court Cr.Misc. No.41386 of 2017(8) dt.25-01-2019 9/10 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 powerofattorney holders...."
8. In Om Prakash Agarwal Since Deceased Thr.
LRS v. Vishan Dayal Rajpoot as reported in AIR 2018 SC 5486, it has been observed as follows:-
"48. We further observe that learned Single Judge in Pankaj Hotels case having noticed an earlier view of learned Single Judge in Shobhit Nigam's case, and he being of the opinion that judgment does not lay down the correct law, appropriate course open for Single Judge was to refer the matter for consideration by a larger bench. The judgments of the High Court are relied on and followed by all subordinate courts in the State. It is always better to achieve certainty by an authoritative opinion by the High Court instead of giving conflicting views by different learned Single Judges which may confuse the litigants, lawyers and subordinate courts in applying the law.
9. Accordingly, the matter is referred to the Division Bench for the consideration of (a) whether substitution is permissible with regard to complaint case as well as police case,
(b) if so, with regard to summons triable, warrant triable as well as sessions triable,(c) with regard to any other petition pending before the court of justice at the end of any of the party.
10. Accordingly, office is directed to place the matter before Division Bench after taking necessary permission from Patna High Court Cr.Misc. No.41386 of 2017(8) dt.25-01-2019 10/10 Hon'ble the Chief Justice.
11. Till then, the stay of further proceeding as directed vide order dated 14.08.2018 will continue.
(Aditya Kumar Trivedi, J)
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