On the death of the complainant, the Magistrate must acquit the accused, as per Section 256 of the Criminal Procedure Code.

SUBBANNA HEGDE VS. DYAVAPPA GOWDA

( 1 ) THIS is a petition filed under Section 482, Cr. P. C. , with a prayer to call for the records in C. C. No. 571/78 on the file of the Principal Judicial Magistrate First Class, Chickmagalur, and to dismiss the complaint filed by the father of the respondent.

( 2 ) THE facts of the case giving rise to the present petition are like this :

( 3 ) THIMMAIAH the father of respondent Dyavappa Gowda filed a complaint on 1-4-1978 before the J. M. F. C. , Chickmagalur, with the allegation, inter alia, that on 6-3-1978 accused-petitioners 1 to 8 having committed criminal trespass into his house had assaulted and they had thereby committed several offences punishable under Sections 143, 147, 149, 324, 326, 342 and 506,. P. C.

( 4 ) THE learned Magistrate taking cognizance of the case recorded the sworn statement of the complainant and he being of the opinion that there were sufficient grounds for proceeding against the petitioners, who were the accused named therein, he registered a case in C. C. No. 571/78 and issued process against the accused-petitioners for their appearance. On 22-7-1978 when the accused-petitioners appeared before the court, the complainant's son Dyavappa appeared and sought the permission of the Magistrate to prosecute the case on the ground his father, in the meanwhile, had died on 26-6-1978. The said application was opposed by the accused-petitioners on the ground that on the absence of the complainant for whatever may be the cause, the accused-petitioners were entitled to be acquitted. The learned Magistrate being of the view that on death of the original complainant his son could prosecute the case, rejected their contention and made an order dated 9-10-1978 allowing the son to prosecute the case. Being aggrieved the accused-petitioners in the case approached the Sessions Judge in Criminal revision Petition No. 26/78. The learned Sessions Judge having dismissed the revision by his order dated 13-2-1979 agreeing with the view taken by the Magistrate, the accused-petitioners herein have approached this court invoking the inherent powers of the court under section 482, cr. P. C.

( 5 ) THE respondent, though served, is absent.

( 6 ) THE short question that arises for consideration in view of the contentions advanced by Sri G. V. Thimmappaiah, learned counsel appearing for the accused-petitioners is whether on the death of complainant, in the circumstances, the complainant's son, could be allowed to prosecute the case.

( 7 ) SECTION 256, Cr. P. C. , deals with the absence of the complainant and the consequences thereof. It reads as follows :-

"256. (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. " it is clear from the reading of the said provisions that when summons has been issued on the complaint for the appearance of the accused or any day subsequent thereto, to which the hearing of the case is adjourned and the complainant does not appear, notwithstanding anything contained in the Code of Criminal Procedure, the Magistrate shall acquit the accused, unless he thinks proper, for reasons to be recorded, to adjourn the hearing of the case to any other date. Though the provisions do not empower the Mag

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