Only legal heirs or proven beneficiaries of a deceased complainant can continue criminal proceedings posthumously; mere claims based on unproven wills are insufficient.

ORDER :

J.M. KHAZI, J.

Petitioner, who is applicant before the trial Court is before this Court, challenging the impugned order passed the trial Court rejecting his application, seeking permission to continue the complaint.

2. In support of the petition, the petitioner has contended that he is a close relative of complainant. She filed a private complaint dated 28.06.2016 under Section 200 Cr.P.C against respondents for the offences punishable under Sections 420 , 441, 463, 464, 467 and 468 of IPC. It was referred for investigation to the concerned police. A 'B' report was filed on 30.11.2016. The trial Court issued notice to the complainant. In the meanwhile, complainant died on 28.12.2016. Therefore, the petitioner filed application under Section 302 of Cr.P.C to permit him to prosecute the complaint. The trial court vide the impugned order has not only rejected the said application, but also accepted the ‘B’ report and close the complaint.

3. Complainant has executed a Will in favour of the petitioner and he got it registered on 16.03.2017. The Will is produced in RSA.No.5829/2011. Therefore, in order to prosecute the private complaint, it is not necessary for the petitioner to prove the Will. The trial Court has also erred in accepting the ‘B’ report. It has also committed error in holding that unless the petitioner secured decree from Civil Court, he has no right to prosecute the criminal complaint filed by original complainant and hence the petition.

4. On the other hand, learned counsel representing respondent Nos.1 and 2 supported the impugned order. They would submit that applicant is not at all related to the deceased and the alleged Will is concocted. Unless and until the Will is proved, petitioner cannot come on record and therefore rightly the trial Court has rejected the application filed by him and accepted the ‘B’ report and prayed to dismiss this petition also.

5. In support of the petition, the petitioner has relied upon the following decisions:

(i) Rashida Kamaluddin Syed & Anr. Vs. Shaikh Saheblal Mardan (Dead) by LRs and Anr. (Rashida), 2007 Crl.LJ 2306

(ii) Chand Devi Daga Vs. Manju K. Humatani (Chand Devi), AIR 2018 SC (Crl.) 45

6. Heard arguments and perused the record.

7. From the documents placed on record it is evident that complainant is the wife of one Mahaveer Ankale. Respondent No.2 Anil Dharmarao Chougule is the nephew of Mahaveer Ankale. Respondent No.1 is the wife of respondent No.2. It is contented by the respondents that since Mahaveer Ankale and the complainant have no issues, Mahaveer Ankale has executed a Will bequeathing all his properties in favour of respondent No.2. When he applied for probate, it was resisted by the complainant. Therefore, it was converted into O.S.No.100/2009. After trial, the said suit came to be decreed, upholding the contention of respondent Nos.1 and 2 that the Will is genuine and they are the beneficiaries of the said Will.

8. Against the said judgment and decree complainant filed R.A.No.1001/2009, which came to be dismissed. Against the said judgment and decree, complainant has filed RSA.No.5829/2011 and secured stay. In the meanwhile, complainant filed complaint in PCR.No.169/2016 through General Power of Attorney holder on 28.06.2016. It was referred to the jurisdiction police for investigation. After conducting detailed investigation, the concerned police filed ‘B’ report on 15.09.2016. When the notice on the report was sent to the complainant, it came to light that she died on 28.12.2016.

9. In response to the said notice, the petitioner appeared before the trial Court and filed application under Section 302 Cr.P.C to permit him to continue the complaint, on the ground that he is a clo