Municipal Council, Jaipur vs Prabhu Narain on 13 February, 1967
Reference in this connection may be made to Mahomed Azam v. Emperor, AIR 1926 Bom 178, Jitan Dusadh v. Damoo Sahoo, AIR 1916 Pat 152 and Anand Rao v. Gadi, AIR 1932 Nag 72.
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Mahomed Azam vs Emperor on 7 December, 1925
T.N. Jayarajan vs Jayarajan on 16 September, 1992
In Mahomed Azam v. Emperor, AIR 1926 Bom 178, the court held thus (headnote) :
Lalloo Pd. vs Kedarnath Shukla And Anr. on 4 December, 1962
In 'Mahomed Azam v. Emperor AIR 1926 Bom 178 it was held that maxim Action Personalis Moritur Cum Persona in civil law confined to torts, does not apply in the case of an offence instituted upon a complaint and the trying magistrate has discretion in proper cases to allow the complaint to be continued by a proper and fit complainant, if the latter is willing.
Ali Dar vs Mohd. Sharif And Ors. on 14 September, 1965
In Mahomed Azam v. Emperor AIR 1926 Bom 178 it was held that in the case of a noncognizable offence instituted upon a complaint, the axiom of actio personalis moritur cum persona, in civil law confined to torts, does not apply, and the trying Magistrate has discretion in proper cases to allow the complaint to continue by a proper and fit complainant, if the latter is willing.
A.L. Mehra vs The State on 25 June, 1957
If these two sections were the only provisions of law with which the Courts are concerned, there can be no manner of doubt that it would have been within the power of Criminal Courts to release an approver on bail; but the legislature has enacted Sub-section (3) of Section 337 which provides that an approver, unless he is already on bail, shall be detained in custody until the termination of the trial. The provisions contained in Sub-section (3) must be read as an exception to the general provisions contained in Sections 497 and 498 of the Code of Criminal Procedure, for it is an old and familiar principle that the special provision overrides the general: Karuppa Servai v. Kundaru, AIR 1952 Mad 833 (G); Mahomed Abdul Majid V. Emperor, AIR 1927 Sind 173 (H).
Macherla Kondian vs Ede Venkataratnam And Ors. on 16 January, 1961
19. The learned Advocate for the appellant has relied on the decision of the Bombay High Court in Mahomed Azam v. Emperor AIR 1926 Bom 178 In that case, the trustees of a mosque filed a complaint under Sections 426 and 143, I.P.C. against the accused. Before evidence was recorded, the complainant died. The accused applied for action under Section 247, Cri.P.C. on the ground that the complaint had abated by reason of the complainant of death. The Magistrate rejected that application and allowed the proceedings to continue with a certain witness on record in place of the deceased complainant. The matter was taken on revision to the High Court. The latter observed as follows:
Maddipatta Govindaiah Naidu And Ors. vs Yelakaluri Kamalamma And Anr. on 15 March, 1984
A similar view was expressed by the Bombay High Court in Mahomed Azam v. Emperor AIR 1926 Born 178 : (27 Cri LJ 491) and by the Allahabad High Court in Musa v. Emperor AIR 1924 All 666(2) : (25 Cri LJ 1007).
Babu Rao S/O. Lakshmi Narayana Bhat vs Nanjunda Settaru S/O Ningga Settaru on 10 July, 2012
The High Court held
that the trying Magistrate would have discretion in proper cases
10
to allow the proceedings to be continued by a proper and fit
complainant, relying on MAHOMED AZAM v. EMPEROR [AIR 1926
BOMBAY 178] wherein it was held as follows:
N.Jagannathan vs State Rep. By The Inspector Of Police on 31 October, 2013
19. The learned Advocate for the appellant has relied on the decision of the Bombay High Court in Mahomed Azam v. Emperor AIR 1926 Bom 178. In that case, the trustees of a mosque filed a complaint under Sections 426 and 143, I.P.C. against the accused. Before evidence was recorded, the complainant died. The accused applied for action under Section 247, Cri.P.C. on the ground that the complaint had abated by reason of the complainant's death. The Magistrate rejected that application and allowed the proceedings to continue with a certain witness on record in place of the deceased complainant. The matter was taken on revision to the High Court. The latter observed as follows:
Sm. Mayabati Halder vs The Rent Controller, Calcutta And Anr. on 24 December, 1980
But where a person was dead, no question of his keeping away or not appearing before a court or anywhere also could arise; the person being no more could not exercise any volition one way or the other in deciding to go to court or keeping himself away from it. A learned single Judge of the Mysore High Court in Sub-bamma v. Kannappachari, AIR 1969 Mys 221 has expressed the view, relying on the decision of the Bombay High Court in Mohammad Azam's case (supra), that the death of the complainant in a case of non-cognizable offence does not abate the prosecution, and that it is within the discretion of the trying Magistrate in a proper case to allow the complainant to continue by a proper and fit complainant if the latter is willing.