On the death of complainant, legal heirs can be permitted to prosecute the complaint

Thus, the overwhelming opinion of various High Courts reflects that on the death of complainant, the legal heirs can be permitted to prosecute the complaint in the trial Court.
 We have to bear in mind that the concept of locus standi has undergone considerable change and the well settled principle in criminal law is that any person can set the law in motion. Moreover Sub-section (2) of Section 256, Criminal Procedure Code was introduced with a purpose that due to the death of a complainant the proceedings do not come to an end automatically but discretion in the matter is given to the Magistrate which has to be exercised in terms of Section 256, Criminal Procedure Code. In an application for leave to appeal personal presence of the deceased appellant is not required. Moreover, eventhough there is provision contained in Section 394, Criminal Procedure Code for abatement of appeal in case of death of the accused, there is no provision of abatement of the case on the death of the complainant.

Bombay High Court

Helen C. Pinheiro And Ors. vs Kamaxi Steel Products on 15 January, 1999

Equivalent citations: 1999 (2) ALD Cri 751, 2000 CriLJ 1622

Bench: R Batta

1. The applicants have filed an application for bringing them on record as legal heirs of deceased Michael Francis Pinheiro in proceedings for leave to appeal against order of acquittal of respondents M/s. Kamaxi Steel Products passed by Judicial Magistrate, First Class, Margao in Criminal Case No. 136/N/96/II. The said Michael Francis Pincheiro had a complaint regarding an offence under Section 138 of the Negotiable Instruments Act. Judicial Magistrate, First Class, Margo, vide Judgment dated 27th April, 1998 acquitted the respondents M/s. Kamaxi Steel Products against which Order an application for leave to appeal has been filed. The original complainant Michael Pinheiro died after the said Judgment and after filing application for leave to appeal. The leave to appeal was filed one 5th August, 1998 and the appellant died on 26th August, 1998. That is how his legal heirs now wish to prosecute leave to appeal and, for that purpose, they have filed an application for bringing them on record. This application is opposed by learned advocate for the respondent.

2. Learned advocate Shri Usgaonkar, appearing on behalf of the legal heirs, has placed before me a number of authorities of different High Courts on the question of bringing heirs of complainant on record during the pendency of proceedings before the Magistrate and on the basis of the said Judgments and drawing analogy therefrom it is urged that the legal heirs be permitted to be brought on record for the purpose of prosecuting application for leave to appeal. On the other hand, advocate Shri Salkar, appearing on behalf of the respondents M/s. Kamaxi Steel Products, after relying upon Judgment of Karnataka High Court in Subbanna Hegde v. Dyavappa Gowda, reported in 1980 Cri LJ 1405, has urged that the heirs cannot be ordered to be brought on record and the application be dismissed.

3. Learned advocate for the parties have not brought to my notice any Judgment which would directly apply to the issue in question, that is to say, death of the complainant after the proceedings and in Judgment and pending leave to appeal. However, I am in agreement with learned advocate for the applicants that on the analogy of the Judgments rendered by different High Courts on the scope and ambit of Section 256 Criminal Procedure Code, the legal heirs should be allowed to be brought on record in order to prosecute the leave to appeal.

4. The earliest Judgment to which my attention has been drawn is a Division Bench ruling of this Court in Mahomed Azam v. Emperor, . This was a summons triable noncognizable

case where the complainant had died during the pendency of the case before the Magistrate and it was ruled by the Division Bench of this Court that death of the complainant does not end the prosecution and the Magistrate can continue with fit substituted complainant and the 'maxim actio personablis moritur cum persona' does not apply.

5. Reliance is placed by learned advocate for the applicants on the Judgment of the Andhra Pradesh High Court in Middipatta Govindaiah Naidu v. Yelakaluri Kamalamma, reported in 1984 Cri LJ 1326 wherein, while dealing with a sessions case where proceedings had been initiated on the basis of private complaint and during pendency of inquiry under Section 202(2), Cr.P.C. the complainant had died and widow of complainant was permitted to continue the proceeding which was challenged in appeal, it was held that there is no foundation for the proposition that the prosecution ends on the death of the complainant in a criminal case. Criminal proceedings legally instituted do not terminate or abate merely on the death of the complainant since the cause of civil action bears no analogy to complaints of crime. In this case a number of Judgments of the High Courts including that of Mysore High Court in Subbamma v. Kannapachari AIR 1969 Mysore 221 : 1970 Cri LJ 59; Patna High Court in Panchu Swain v. Emperor AIR 1943 Pat 379; Allahabad High Court in Musa v. Emperor AIR 1924 All 666 (2); Madras High Court in Narayana Naick v. Emperor AIR 1931 Mad 772 (1); A.R. Balasubramanian v. Palani, 1969 Cri LJ 1297 (Mad) and the ruling of this Court inMahomed Azam v. Emperor (supra) besides the Judgment of the Apex Court in Ashwin v. State of Maharashtra have been relied upon.

6. In Ashok Kumar v. Abdul Latif 1989 Cri LJ 1856 Jammu and Kashmir High Court has held that the death of the complainant cannot ipso facto bring about termination of proceedings and the Magistrate is authorised to exercise powers by substituting another person or prosecution agency for conduct of criminal case. It was further held that merely on the death of the complainant, the complaint filed by the complainant cannot be dismissed nor the accused acquitted or discharged under Section 247 or 259, Criminal Procedure Code. Reliance in this Judgment was placed on the Judgment of Calctta High Court in Smt. Mayabati Haldar v. Rent Controller, Calcutta and Apex Court Judgment in

Ashwin v. State of Maharashtra (supra).

7. In Om Saran v. Mrs. Satya Dhawan, reported in 1990 Cri LJ 1619, Delhi High Court has laid down that the Legislature has vested discretion with the Magistrate to decide, keeping in view the facts of each case, as to whether on non appearance of the complainant or on the death of the complainant in a summons case the accused should be acquitted or not and if he, for good reasons, thinks it proper, the Magistrate can proceed with the complaint and adjourn the matter in the absence of the complainant or when the complainant has died. In this case the Judgment of the Karnataka High Court in Subbanna Hegde v. Dyavappa Gowda 1980 Cri LJ 1405, upon which reliance has been placed by learned advocate for the respondents, has been distinguished.

8. In T.N. Jayarajan v. Jayarajan, reported in 1992 (3) Crimes 666, the Kerala High Court while dealing with a case under Section 138 of the Negotiable Instruments Act has laid down that in appropriate cases the Magistrate can grant permission to the son of the deceased complainant to prosecute the complaint. In this case reliance has been placed on the decisions of the Division Bench of this Court in Mahomed Azam v. Emperor (supra) and that of the Mysore High Court, in Subbamma v. Kannapachari (supra) and the views of Law Commission in its 41st report which read thus :-

A question has arisen whether the complainant's death ends the proceedings in a summons case, and we find that different views have been expressed on this question. As a matter of policy we think the answer should depend on the nature of the case and the stage of the proceedings at which death occurs. It is impracticable to detail the various situations that may arise and the considerations that may have to be weighed. We think, in the circumstances, that the decision should be left to the judicial disretion of the Court, and, the legal provision need only be that death and absence stand on the same footing. We trust this will in practice work satisfactorily.

9. There is another case under Section 138 of the Negotiable Instruments Act which has dealt with the issue relating to the death of the complainant in such matters and this Judgment is of the Gujarat High Court in Anil G. Shah v. J. Chattranjan Co., reported in 1998 II BC 108 : 1998 LJ 3870. In this case, also it has been laid down that in case under Section 138 of the Negotiable Instruments Act, 1881 where the complainant dies after taking of cognizance, the proceedings do not abate and trial has to be taken to the logical end following due process and procedure laid down in Criminal Procedure Code. It has been held that there is no provision in the Code of Criminal Procedure or the Negotiable Instruments Act laying down that on account of death of payee, the trial must abate and as such the proceedings cannot abate on the dead the of the complainant payee. Therefore, the legal heirs of the origin nal complainant are entitled to come forward and ask for their substitution in place of the complainant so as to proceed further with the trial. In this case also reliance has been placled on Judgments of Kerala High Court in T.N. Jayarajan v. Jayarajan (supra), Jammu and Kashmir High Court in Ashok Kumar v. Abdul Latif (supra) and Andhra Pradesh High Court in Maddipatta Govinvidaiah Naidu v. Yelakaluri Kamalamma (supra).

10. Thus, the overwhelming opinion of various High Courts reflects that on the death of complainant, the legal heirs can be permitted to prosecute the complaint in the trial Court.

11. The offence under Section 138 of the Negotiable Instruments Act is non cognizable and the procedure to be followed is summons case procedure. Section 256, Criminal Procedure Code would come into play in case of non appearance or death of the complainant during the trial. Section 256 Criminal Procedure Code reads thus :-

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.

Section 256, Criminal Procedure Code confers discretion on the Magistrate to proceed with the trial in the absence or death of the complainant. Where the complainant is represented by pleader/officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, he is empowered to dispense with attendance and proceed with the case. The same analogy in principle has to be extended in a case where the complainant has died after the final disposal of the criminal case ending in acquittal and after filing leave to appeal and where the legal heirs of the complainant on account of the death of the complainant wish to prosecute the remedy of leave to appeal against acquittal.

12. We have to bear in mind that the concept of locus standi has undergone considerable change and the well settled principle in criminal law is that any person can set the law in motion. Moreover Sub-section (2) of Section 256, Criminal Procedure Code was introduced with a purpose that due to the death of a complainant the proceedings do not come to an end automatically but discretion in the matter is given to the Magistrate which has to be exercised in terms of Section 256, Criminal Procedure Code. In an application for leave to appeal personal presence of the deceased appellant is not required. Moreover, eventhough there is provision contained in Section 394, Criminal Procedure Code for abatement of appeal in case of death of the accused, there is no provision of abatement of the case on the death of the complainant.

13. For the aforesaid reasons, I do not find any merit in the submission advanced by learned advocate Shri Salkar on behalf of the respondents Kamaxi Steel Products. The application for bringing heirs of original complainant Michael Pinheiro has, therefore, to be granted. The said application is, accordingly, granted and the legal heirs are permitted to be brought on record for the purpose of prosecuting leave to appeal by them. Amendment in the title be carried out in the leave to appeal. Leave to appeal be now placed for hearing. Application stands disposed of.

Print Page