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criap4609.15

7. Learned Judicial Magistrate First Class, Shrirampur, by an order dated 22nd July, 2015, rejected the application at Exhibit 66 by refusing the prayer of the applicant to substitute the deceased original complainant and further ordered abatement of the complaint, on the ground that the case relates to offences punishable under sections 493 and 496 of the Indian Penal Code. According to the learned Magistrate, in view of law laid down by this Court in the matter of Balasaheb Keshav Thackeray vs. State of Mah. & anr., reported in 2003 (1) Mh.L.J. 775, the applicant cannot claim to be "person aggrieved" and as such, has no locus to continue the complaint. It is further observed by the learned Magistrate that defamatory contents were in respect of the director of the society and not against the individual. It is further observed that the legal heir of the complainant has not come forward to pursue the complaint further. As such, present appeal.

criap4609.15

9. Per contra, Mr Jagtap, learned Counsel holding for Mr V.D. Sapkal, learned Counsel appearing on behalf of respondents no.1, 2, 4 to 8, would urge that the learned Magistrate has rightly rejected the application pursuant to the provisions of section 256 of the Code of Criminal Procedure. He would then submit that if the law laid down by this Court in the matter of Balasaheb Keshav Thackeray (supra) is taken into account, the present applicant has no locus whatsoever to continue with the complaint, particularly in the background of the basis on which the summons trial case came to be initiated. According to him, just because the applicant is a member of the society, that does not by itself give him a right to prosecute the complaint further, after the death of original complainant. Learned Counsel has placed reliance upon certain observations of this Court in the said judgment, so as to point out that the prosecution of the complaint at the behest of the applicant is not tenable as he cannot be said to be coming within the ambit and meaning of the words "some person aggrieved" as referred to in sub-section (1) of section 199 of the Code of Criminal Procedure.

14. The applicant claims to be the brother of the deceased complainant Suryakant. The applicant is also a member of the said society since 10 th January, 2002, as appears from the share certificates held by him. He had not initiated the complaint for offences punishable under sections 499 and 500 of the Indian Penal Code as were invoked by Suryakant at the relevant time. Although the applicant is real brother of Suryakant, yet he is not claiming to have any right to continue the prosecution based on his relation with Suryakant, but on the basis of his status as a member of the society against which the alleged defamatory statements are claimed to have been made. In my opinion, the applicant cannot have any right to seek continuation of the proceedings initiated by deceased Suryakant, particularly when he (applicant) cannot be covered within the meaning of words "some person aggrieved", as provided in sub-section (1) of section 199 of the Code of Criminal Procedure. The reason for the above referred conclusion is that the applicant himself claims to be merely a member and not the director or any office bearer of the society. "Some person aggrieved", at the most, could be a director or a person specifically authorized by the society to initiate proceedings for defamation, which is not a case of the present applicant. I am fortified in my view by law laid down by this Court in the matter of Balasaheb Keshav Thackeray (supra).