Allahabad High Court
Nanak Chand Gautam vs State Of U.P. And Another on 12 July, 2022
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 81
Case :- APPLICATION U/S 482 No. - 4470 of 2013
Applicant :- Nanak Chand Gautam
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Rahul Chaturvedi,Jitendra Kumar,Prasoon Tomar
Counsel for Opposite Party :- Govt. Advocate,Suresh Chandra Pandey
Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Mr. Prasoon Tomar, learned counsel for the applicant, Mr. Suresh Chandra Pandey, learned counsel for the opposite party no.2 and Mr. Pankaj Kumar Srivastava and Amit Singh Chauhan, learned A.G.A for the State and perused the material available on record.
2. The present application under Section 482 Cr.P.C. has been filed to quash the impugned order dated 08.11.2012 by which the learned Magistrate has rejected the application No.115B U/s 256 Cr.P.C. in Criminal Case No.1336/IX/2008 (Radhey Shyam Agarwal Vs. Nanak Chand Gautam) U/s 138 N.I. Act, Police Station-Kotwali, Mathura, pending in the Court of VIth Judicial Magistrate, Mathura.
3. The records go to show that a complaint under Section 138 N.I. Act was filed by Late Radhey Shyam Agrawal against the applicant, challenging the proceedings an application No.13672 of 1993 (Nanak Chand Vs. State of U.P.) was filed before the Hon'ble Court and the Hon'ble Court on 13.09.1993 stayed the further proceedings of the criminal case No.2955/IX/1992, filed under Section 138 N.I. Act. Subsequently, the aforesaid case was dismissed in default and stay order was vacated on 02.09.1997. Earlier, on an application of the applicant, the trial Court vide order dated 13.03.2006 closed the evidence of defence of the applicant and fixed 24.03.2006 as the date for argument. Thereafter, on 14.04.2006 the applicant moved an application with the prayer to provide opportunity for producing evidence in his defence, on which on 10.09.2008, last opportunity was given to the applicant/accused for producing evidence in his defence. On 20.02.2009, the application of the applicant was rejected and opportunity for producing evidence was closed by a detailed order. A Criminal Revision was filed against the order dated 20.02.2009 in the Court of Sessions Judge, Mathura on 15.04.2009 and the same was also dismissed.
4. The complaint was filed by father of opposite party no.2 on 15.11.1990 and the applicant was summoned on 15.08.1991 but due to delaying tactics of the applicant, the case could not be decided. During pendency of the aforesaid case, the complainant namely, Radhey Shyam Agarwal expired, therefore, an application under Section 256 Cr.P.C. was moved by the applicant on 04.02.2010 before the Court of Judicial Magistrate, Mathura for dismissal of the complaint on the ground of complainant's death. On 05.07.2010, an objection was filed by son of the complainant stating therein that the complaint does not come to an end in case of death of the complainant on account of relevant provisions as laid down in Code of Criminal Procedure.
5. The son of the complainant namely, Rajeev Agarwal moved an application dated 20.08.2010 in the Court concerned for impleading him as legal representative as the complainant in the proceedings under Section 138 N.I. Act being his father had expired. The application moved by the applicant on 04.02.2010 under Section 256 Cr.P.C. has been rejected by order dated 08.11.2012 against which the present case has been filed.
6. Learned counsel for the applicant submits that in the Code of Criminal Procedure, 1973 (hereinafter referred to as "the 1973 Code") there is no provision which permits legal representatives of complainant to be substituted for prosecuting the complaint. Placing reliance upon the Section 256 Cr.P.C., he further submits that the complaint was to be dismissed on the ground of death of the complainant. On the other hand, relying upon provisions of Section 256 Cr.P.C., Section 302 Cr.P.C. as well as the 1973 Code, learned counsel for the opposite party as well as learned A.G.A. submit that the 1973 Code does not contain any provision that on death of complainant, the complaint cannot be allowed to be prosecuted by any other person including the legal representatives.
7. Learned counsel for the opposite party no.2 submits that the application moved for substituting him in place of complainant, has already been allowed in the year 2010 and the trial is going on.
8. I have considered the submissions made by counsel for the parties and perusal the records.
9. Before looking into the facts of the present case, it would be appropriate to place the extract of Section 256 of the Code of Criminal Procedure, 1973 as contained in Chapter XX, which is as under:-
"256. Non-appearance 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 sub section (1) shall, so far as may be, apply also to cases where the non appearance of the complainant is due to his death."
10. It would be also appropriate to discuss the analogous provision to Section 256 of the 1973 Code as contained in Section 247 of the Criminal Procedure Code, 1898. The proviso to Section 247 was added in 1955 which said that "where the Magistrate is of the opinion that personal attendance is not necessary, he may dispense with such attendance". By the aforesaid proviso, the whole thing was left to the discretion of the Court. Sub Section (1) of 256 contains the above proviso in the similar manner. Thus, even in case of trial of summons, it is not necessary or mandatory that after the death of the 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. At this juncture, it is relevant to place the principles applicable as discussed by this Court in case of Ashwin Nanubhal Vyas v. State of Maharashtra with reference to Section 495 of Cr.P.C. 1898 (hereinafter referred as old code), reported in AIR 1967 SC 983, wherein it was held that the Magistrate has power to permit a relative as complainant to continue the prosecution. In case of Jimmy Jahangir Madan v. Bolly Cariyappa Hindley, reported in 2004 12 SCC 509, 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, it would be appropriate to extract Section 302 of the Code, which 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."
11. Thus, if any, permission is sought for by the legal heirs of the deceased complainant to continue prosecution, the same shall be considered in its perspective by the Court dealing with the matter. Sections 256 and 302 have been considered in case of Balasaheb K. Thackeray And Another v. Venkat Alias Babru, reported in 2006 5 SCC 530, wherein dealing with the aforesaid provisions, the Court held that the complaint cannot be dismissed on the ground that complainant had died.
12. The following has been held in paragraph 3 to 6 of the aforesaid judgement, which are as under:
"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 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."
13. While dealing with the issue as to what is the effect of death of the complainant, the Court in case of Chand Devi Daga and others v. Manju K. Humatani and others, reported in 2018 1 SCC 71 has held that in case of death of the complainant, the legal heirs of the complainant could be allowed to continue the prosecution and the complaint cannot be dismissed on the aforesaid ground.
14. In view of the above discussion, this Court is of the opinion that the Court concerned did not commit any error in rejecting the application of the applicant and allowing the legal heirs of the complainant to prosecute the complaint under Section 138 N.I. Act.
15. This Court does not find any error in the order dated 08.11.2012, accordingly, the application under Section 482 Cr.P.C. is dismissed. Interim order, granted earlier stands discharged.
16. However, the concerned Court is directed to conclude the trial within six months from the date of production of a certified copy of this order.
17. Office is directed to communicate about this order to the Court concerned forthwith.
Order Date :- 12.7.2022 Rahul.