Punjab-Haryana High Court
Ram Kishan And Anr. vs Smt. Prem Lata Widow Of Banarsi Dass on 6 March, 1997
Equivalent citations: 1997CRILJ3365
Author: R.L. Anand
Bench: R.L. Anand
ORDER R.L. Anand, J.
1. Ram Kumar son of Jagdish Ram and Smt. Ram Kumari wife of Shri Kundan Lal have filed the present petition against Smt. Prem Lata widow of Shri Banarsi Dass, which is directcd against the judgment dated 27th September, 1996 passed by the Court of Additional Sessions Judge, Ropar, who allowed the revision petition filed by Smt. Prem Lata alias Kamla respondent widow of Shri Banarsi Dass, who filed the main complaint, and set aside the order dated 7th October, 1995 passed by the Judicial Magistrate 1st Class, Anandpur Sahib, and gave directions that Smt. Prem Lata be substituted in place of her husband Shri Banasri Dass complainant in the complaint filed Under Sections 379, 380, 420, 448 etc., Indian Penal Code.
2. The brief facts of the case are that Shri Banarsi Dass filed a complaint against Ram Kishan and Smt. Ram Kumari and both these persons were summoned to face the trial Under Sections 447, 379, 380 read with Section 34 of the Indian Penal Code, vide order dated 14th December, 1994. This complaint related to the occurrence which allegedly took place on 22nd September, 1992. After appearance of the accused, the learned Magistrate recorded some pre-charge evidence. Thereafter Shri Banarsi Dass, the main complainant, died. Smt. Prem Lata claiming herself to be the widow of Banarsi Dass made an application before the learned Magistrate for grant of permission to continue the proceedings against the accused. This application was moved by Smt. Prem Lata on 27th September, 1995 (Annexure P5). The learned Magistrate declined the application vide order dated 7th October, 1995 and the reasons advanced by the learned Magistrate are contained in para No. 4 of his order (Annexure P2), which are reproduced as follows :
4. I have gone through the averments of the application and the reply filed by the respondent-accused and heard the parties on this application. I have come to the conclusion that it is admitted fact that Banarsi Dass has died and in these circumstances his personal appearance is to be exempted. Now the main controversy which is to be determined by the Court is that whether applicant Prem Lata can be substituted in palce of Banarsi Dass deceased complainant or not. In this regard I am of the view that first of all the applicant has to prove that she is the aggrieved party so far the present complaint is concerned but in my opinion she has to prove the fact that she is aggrieved in any manner because the complaint pending before me has been filed by Banarsi Dass the alleged husband of Smt. Prem Lata and it pertains to theft of articles belonging to Banarsi Dass and occupation of his shop and Chubara. So if these are the allegations of the complainant then I do not find any justification that in any manner Prem Lata applicant can be said to be aggrieved parly. Keeping in view the provisions of Sections 198 and 256 Cr.P.C. I am of the view that in the circumstances only the person aggrieved can prosecute the wrong doer in the absence of real complainant but in the present case Smt. Prem Lata, the alleged widow of Banarsi Dass, has failed to prove the fact that how she is an aggrieved party and she cannot be substituted and allowed to prosecute the proceedings against the accused in the absence of Banarsi Dass. Obviously the cause of action if any was there that was to only Banarsi Dass complainant and not to anybody else. Apart from this there arc other certain alleged legal heirs of Banarsi Dass. They are also the aggrieved persons and can be deemed to be aggrieved. So the alleged widow of Banarsi Dass claiming herself to be only legal heir of Banarsi Dass cannot be allowed to proceed with the present complaint. Apart from this the nature of the complaint is such that in these circumstances she cannot be allowed to prosecute the accused-respondent for want of proper complainant, who was the real aggrieved party in this case. It was incumbent upon Prem Lata to file this application accompanied by duly attested affidavit to the effect that she is the only aggrieved lady and also to the effect that she is the widow of Banarsi Dass but no such affidavit has been filed by her along with this. I have gone through the entire proceedings of the complaint. The name of said Prem Lata, the present applicant, does not figure either in the list of witnesses or the witnesses examined at the time of summoning of the accused. So there is also some force in the contention of the learned counsel for the respondent that in fact Prem Lata was not the widow of Banarsi Dass and was one Kamla who was the widow of deceased Banarsi Dass. Since there is no material before me to arrive at the concrete conclusion regarding the widowhood of alleged Prem Lata. I do not want to give any findings. However, she is at liberty by proving herself to be one of the aggrieved parties and being widow of deceased Banarsi Dass to file the fresh complaint if any cause of action still survives. So with these observations I am of the opinion that Prem Lata cannot be substituted as complainant in place of Banarsi Dass complainant, since deceased. Accordingly, the Court is left with no option but to discharge/acquit all the accused.
3. Aggrieved by the above order, Smt. Prem Lata, widow of Shri Banarsi Dass, filed acriminal revision in the Court of Additional Sessions Judge, Ropar, who vide order dated 27th September, 1996 set aside the order of the learned Magistrate and accepted the revision and the predominant reasons given in the order are contained in paras Nos. 10, 11, 12, 18 and 19 of the judgment, which are reproduced as follows:
10. The accused were summoned to face trial Under Sections 447, IPC, 379 IPC and 380, IPC read with Section 34, IPC. The offence Under Sections 379 and 380 are congnizable. Moreover the offence Under Section 380 is non-compoundable, the learned Magistrate passed the order Under Section 256, Cr.P.C. which is applicable to the summons cases. By virtue of the provisions of Section 2(w) read with Section 2(x), a summons case means a case relating to an offence punishable with imprisonment for a term not exceeding two years. In the present case the offence Under Sections 379, IPC and 380, IPC are warrant cases as the punishment provided is three years imprisonment and seven years imprisonment therefore, respectively. Thus it is evident that the provisions of Section 256, Cr.P.C. cannot be invoked in the event of death of the complainant.
11. The procedure regarding trial of warrant cases instituted otherwise than on police report is contained in Sections 244 to 250 of the Code of Criminal Procedure, 1973. Section 249, Cr.P.C. provides for the consequences flowing from the absence of complainant in such like cases. The said section reads as follows:
249. Absence of complainant. When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.
Again the procedure for trial of summons cases by the Magistrate is contained in Sections 251 to 259 of the Cr.P.C., 1973. Section 256, Cr.P.C. which relates to non-appearance or death of complainant provides as follows :
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 ease.
(2) The provisions of Sub-section (I) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.
12. Since the present case is warrant case as the accused have been summoned to face trial inter alia Under Section 379, IPC, the provisions of Section 256, Cr.P.C. are not applicable in this case. A complaint can be dismissed Under Section 249, Cr.P.C. on the absence of the complainant, if the offence be lawfully compounded or it is not cognizable. In the present case, the offences Under Section 397, IPC and 380, IPC are cognizable and moreover the offence Under Section 380 is not compoundable. Therefore even the provisions of Section 249, Cr.P.C. cannot be pressed into service fordismissal of the complaint in the absence of the complainant.
18. Unfortunately in this case, the learned Magistrate became oblivious of the provisions of Section 249 Cr.P.C. and committed grave error in resorting to the provisions of Section 256, Cr.P.C. which are applicable to trial of summons cases. When Prem Lata who claims to be the widow of complainant Banarsi Dass had offered to prosecute the complaint on the death of Banarsi Dass, she was inevitably the most appropriate person to continue the recordings. Even in the absence of a complainant the Magistrate has no 249, Cr.P.C., if the offence cannot be lawfully compounded or is cognizable. The balance of authority is in favour of the view that death of a complainant cannot be equated with absence even in no-cognizable cases.
19. It follows that the learned Magistrate committed grave error and illegality in dismissing the complaint despite the fact that a proper person had offered to continue the proceedings. In all events the complaint could be dismissed only on merits and not due to the death of the complainant when Smt. Prem Lata claiming herself to be the widow of deceased complainant had offered to prosecute the complaint.
Aggrieved by the order passed by the learned Additional Sessions Judge, Ropar, dated 27th September 1996, this time Ram Kishan and Smt. Ram Kumari have filed the present revision petition, giving challenge to the order of the learned Additional Sessions Judge, Ropar.
4. I have heard Shri S.S. Siau, Advocate, appearing on behalf of the petitioners and Mrs. Asha Jaiswal, Advocate, appearing on behalf of the respondent and with their assistant have gone through the record of this case.
5. Before I deal with the submissions and proposition of law, it will be useful for me to highlight some more facts in order to appreciate the controversy between the parties. Earlier to the filing of the present complaint (Annexure P3) filed by Shri Banarsi Dass regarding the occurrence dated 22nd September, 1992, he filed one complaint Under Sections 379, 380, 448, 109, 451, 453, 506 read with Sections 120-B and 34 of the Indian Penal Code, against Ram Kishan and Ram Kumari and five others. During the pendency of that complaint, Shri Banarsi Dass made a statement before the Court on 21st September, 1992 stating that he did not want to proceed with the complaint against the accused because he had entered into a compromise and, therefore, his complaint may be dismissed. On this statement, the learned Judicial Magistrate 1st Class, Anandpur Sahib, passed the order (Annexure P7) on the same day dismissing the complaint for want of prosecution.
6. The earlier complaint was with regard to the occurrence which took place on 11th August, 1990. A reading of the second complaint which pertained to the occurrence dated 22nd September, 1992 indicates that there was a dispute between Shri Banarsi Dass on the one hand and Shri Ram Kishan and Smt. Ram Kumari on the other with regard to property which was situated in the Municipal limits of Anandpur Sahib, and which was purchased by Shri Banarsi Dass vide sale deed dated 27-1-1986 from Shri Kundan Lal son of Shri Bal Mukand for a sum of Rs. 44,000/-. Shrimati Ram Kumari wife of Shri Kundan Lal also consented to the registration of the sale deed in favour of the complainant. On the basis of the said sale deed the complainant got the possession of the property. Two persons, namely, Ashok Kumar and Karam Singh, employees of the Punjab State Electricity Board, Anandpur Sahib, were in possession of a room on the upper story of the house as tenants of the complainant since July 1987. The allegation of the complainant Shri Banarsi Dass in the first complaint was that accused Nos. 1 and 2, namely, Ram Kishan and Smt. Ram Kumari, broke open the locks of the rented room and the shop of the complainant in his absence and at the back of the complainant forcibly and illegally on 11-8-1990 and regarding that occurrence the information was given to the Police, which did not take any action at the first instance. Resultantly, the complainant Banarsi Dass had filed a complaint against them and others. In the meanwhile, the Police also registered a case. By virtue of the statement dated 28-8-1992, it was agreed upon that the complainant would withdraw his complaint and will not prosecute the challan and on this assurance the accused handed over the possession of the property to the complainant and actually delivered the possession on 21-9-1992 itself in the morning. Resultantly, the complainant Shri Banarsi Dass made a statement before the Court that his first complaint may be dismissed. In spite of the fact that possession was given to the complainant on 21-9-1992, both the accused, namely, Ram Kishan and Smt. Ram Kumari again took forcible possession of that property on 22-9-1992 by breaking open the locks of the house of the complainant. When the complainant asked the accused to deliver the possession, as they had in his absence broken open the locks, it is alleged by the complainant that accused Nos. 3, 4, 5, 6 and 7 helped accused Nos. 1 and 2 in taking of the possession of the shop and Chobara forcibly and illegally. All the seven accused had hatched a conspiracy and they even threatened the complainant.
7. During the pendency of the second complaint of Shri Banarsi Dass, he died. Smt. Prem Lata made an application before the learned Magistrate for the continuation of the proceedings as she was interested to prosecute the complaint, but her prayer was declined by the learned Magistrate. Smt. Prem Lata went in revision, which was allowed, and in this manner the second revision has been filed by Shri Ram Kishan and Smt. Ram Kumari.
8. The following points arise for determination in the present revision :
(i) Whether the action on the part of the learned Magistrate in dismissing the complaint of Shri Banarsi Dass was justified ?
and
(ii) Whether the action on the part of the learned Magistrate in declining the request of Smt. Prem Lata to be substituted as a complainant in place of her husband Shri Banarsi Dass was legally sound?
I have already reproduced the operative portions of the orders of the learned Magistrate as well as the learned Additional Sessions Judge.
9. After hearing the learned counsel for the parties this Court is of the considered opinion that there is no illegality or impropriety in the impugned judgment delivered by the learned Additional Sessions Judge, Ropar, and the learned Magistrate committed apatent illegality and error has only been rectified by the learned Additional Sessions Judge. Though an effort was made by the learned counsel for the petitioners that the second complaint filed by Shri Banarsi Dass was with respect to the same cause of action, which was the subject-matter of the first complaint, which was dismissed for want of prosecution, and, therefore, the second complaint of Shri Banarsi Dass was not competent. This submission of the learned counsel for the petitioner is devoid of any merit on two counts because the first occurrence related to an incident which took place on 11-8-1990 when the accused took forcible possession and dislodged the tenants of the complainant and the complainant was also dispossessed from the part of the property. That complaint was dismissed on account of the compromise and on the basis of the compromise the complainant Shri Banarsi Dass entered into the actual possession on 21-9-1992. The subject-matter of the second complaint is that inspite of the fact that compromise and the handing over the possession to the complainant, the accused again entered into forcible possession and removed the articles of the complainant on 22-9-1992. Thus the cause of action of the first complaint and that of the second complaint was totally different and in these circumstances it cannot be said that the second complaint was barred or that it was an abuse of the process of law irrespective of the fact the second occurrence related to the same property. Thus, it is held that if the second complaint is on a different cause of action, it cannot be considered as barred merely on the ground that it related to the same property.
10. In this case the petitioners were summoned to face trial Under Sections 447, 379 and 380 read with Section 34 of the Indian Penal Code. The offences Under Sections 379 and 380 are cognizable. The offence Under Section 380, I.P.C., is also non-compoundable. First of all I would like to dilate that Under all the circumstances the provisions of Section 256 of the Cr.P.C. can be attracted. This section has been placed in Chapler-XX of the Code of Criminal Procedure which deals with trial of summons cases by the Magistrates. The case in hand was not a summons case but it was a warrant case within the meaning of Section 2(w) and 2(x) of the Code of Criminal Procedure. In these circumstances the provisions of Section 249 of the Code could be attracted and it will be seen in the later part of this judgment whether those provisions could be applied in the circumstances of the present case or not. To continue with my discussion with regard to the scope of Section 256, Cr.P.C., it is stated that the reading of the provisions of this section would show firstly, that it is applicable to the summons cases; secondly, if on the appointed date for the appearance of the accused or any date subsequent thereto, the complainant does not appear, the Magistrate shall acquit the accused unless for some reasons he thinks it proper to adjourn the hearing to some other date; thirdly, there is a proviso to Section 256 that if the complainant is represented by a pleader or the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. Section 256(2) of the Code further lays down that the provisions of Sub-section (I) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. Even the reading of Section 256 shows that a discretion has been given to the Magistrate even in a summons case not to dismiss the complaint if in his opinion the personal attendance of the complainant is not required. In the present case Shrimati Prem Lata made a specific request to the learned Magistrate that she may be substituted in place of her husband. The Magistrate committed a patent error by straightway rejecting the application of Smt. Prem Lata on the plea that she has not been able to prove that she is the widow of her husband Banarsi Dass as she has not placed any proof or affidavit in support of her application. The learned Magistrate could make little-bit inquiry into this fact but he straightway adopted a convenient method in the dismissal of the application. Otherwise, the learned Magistrate should also have taken note of that Smt. Prem Lata is claiming property of her husband and the allegations of the complaint were that the accused had illegally deprived her of the possession of the property by taking forcible possession on 22-9-1992.
11. Be that as it may, as I stated above, the case in hand was not a summons case, and, therefore, the provisions of Section 256, Cr.P.C., could not be attracted. S.249 of the Code of Criminal Procedure has been included in Chapter XIX of the Code which deals with trial of warrant cases either instituted on the Police report or other than on the Police report, as is evident from category (B) of Chapter XIX which starts from Section 244 onwards. Section 249 of the Code states that when the proceedings have been instituted upon a complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused. Now it has to be seen whether Section 249 was attracted in the given circumstances or not. What is the meaning of 'absence of complainant'? To my mind, the absence of the complainant from a warrant case instituted otherwise than on police report means a wilful absence or absence with the knowledge that he was not interested to prosecute the complaint. If the man has died, it cannot be said that his absence was wilful. The provisions of Section 256(2) of the Code have not been incorporated intentionally in the provisions of Section 249 of the Code. Rather the absence of the complainant has been made immaterial by virtue of Section 249 after the framing of the charge. In the present case Smt. Prem Lata submitted an application. She was definitely interested in the subject-matter of the complaint being the widow of Shri Banarsi Dass, who was the owner of the property. The possession of the property has been allegedly taken away forcibly by the accused. A valuable right has definitely accrued to the legal heirs of Shri Banarsi Dass and, therefore, Smt. Prem Lata in her individual capacity could prosecute that complaint. Another essential ingredient to attract the provisions of Section 249 of the Code is that the offence of which the accused has been charged could be lawfully compounded or is not a cognizable offence. In the present case the offences Under Sections 379 and 380 of the I.P.C. were cognizable and in these circumstances the complaint could not be dismissed by the learned Magistrate and he ought to have issued the discretion in favour of Smt. Prem Lata, who was before him. In these circumstances it has been rightly remarked by the learned Additional Sessions Judge in para No. 12 of the judgment: "Therefore, even the provisions of Section 249, Cr.P.C., cannot be pressed into service for dismissal of the complaint in the absence of the complainant".
12. Faced with this difficulty, learned counsel for the petitioners relied upon Gurmit Singh Dhaliwal v. Om Parkash, (1995) 1 Rec Cri R 86 (Punj & Hry), and submitted that the second complaint by Shri Banarsi Dass could not be filed as it has been filed on the same facts and he has not been able to make out any special case. This authority is off the point. As I have already stated above, the first complaint was not the subject-matter of an incident which allegedly took place on 11-8-1990. According to the complainant, he got the possession of the property on 21-9-1992 and in spite of the compromise, the accused again took forcible possession of the property on 22-9-1992. The second complaint was on a different cause of action. Even in this judgment the Hon'ble Judge was pleased to hold that when a criminal complaint has been filed Under Section 325, which is a cognizable offence, and the accused has been summoned after preliminary evidence and the complaint has been dismissed for default by the Magistrate, such an order is not lawful. The learned Magistrate in these circumstances could not dismiss the complaint even with the affidavit of Shri Banarsi Dass and was supposed to proceed with it and in his discretion he ought to have allowed Smt. Prem Lata to be substituted.
13. This case has to be viewed from another angle. I stated above that Smt. Prem Lata was definitely an aggrieved party after the death of her husband with regard to the property as she inherited prima facie an interest in the property. Her husband was allegedly dispossessed of the property in an illegal manner and, therefore, Smt. Prem Lata could ask the learned Magistrate that she may be substituted as a complainant. Learned counsel for the respondent relied upon Balbir Kaur v. Dalip Singh, (1987) 2 Rec Cri R 601 : (1987 Cri LJ 1555) (Punj & Har), and submitted that Smt. Prem Lata was an aggrieved party and, therefore, she has the right to ask the Magistrate for her substitution. I have gone through this citation and I am of the view that it has provided help to me in determining as to whether Smt. Prem Lata is an aggrieved party or not or she has a locus standi to request the learned Magistrate for impleading her as a party. In Amrik Chand (died) reptd. by his LRs. v. Karnail Singh, (1994) 2 Rec Cri R 390 (Punj & Hary) the scope of Section 249 of the Code of Criminal Procedure was considered. In this case the accused were summoned for the offences Under Sections 420 and 468, Indian Penal Code. Thereafter the complainant died. In these circumstances it was held that the Magistrate was not empowered to dismiss the complaint and was duty bound to allow the legal representatives of the deceased to continue with the proceedings. Reliance was also placed on Balbir Kaur v. Dalip Singh, (1987) 2 Rec Cri R 601 :(1987 Cri LJ 1555)(Punj & Hary) referred to above. It was categorically stated in this very authority that after the issuance of the summons in a case, which was cognizable and not compoundable, if the complainant becomes absent, it is not open for the Magistrate to discharge the accused. The discretion of discharge only vests to the Magistrate if the offence was not cognizable and was compoundable and the charge has not been framed. This is not the position in the present case. Rather on the contrary, the offences were cognizable and one of the offences was not even compoundable. In this view of the matter. I do not see any infirmity in the impugned judgment of the learned Additional Sessions Judge, Ropar. who simply rectified the illegality committed by the learned Magistrate.
14. The net result is that this revision petition is devoid of any merit and the same is hereby dismissed with no order as to costs.