Important point
Application u/s 302 Cr.P.C. to continue the prosecution cannot be filed by the power of attorney holder of heirs of complainant.
Judgment

B.N. Agrawal, J.—These appeals by special leave have been filed against judgment rendered by Karnataka High Court in revision applications upholding order passed by the Additional Chief Metropolitan Magistrate, Bangalore, in two complaint cases whereby petitions filed under Section 302 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) for allowing power of attorney holders of heirs of the original complainant to continue the prosecution were allowed.

2. The short facts are that one Mrs. Bolly Cariyappa Hindley filed two complaints for prosecution of the appellant under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the Act’) in which cognizance was taken and the accused was summoned. During trial, the complainant died leaving behind her son Peter Baldwin Jr. and daughter Mrs. Nina Baldin Eddy who were staying in United States of America, as such they executed a general power of attorney in favour of Mr. John Curtis and Mrs. Annie Cariappa respectively. The two general power of attorney holders of the aforesaid heirs filed applications under Section 302 of the Code in the aforesaid cases before the trial court for permitting them to continue the prosecution therein which prayer was contested by the accused, but the learned magistrate allowed the applications and permission was granted to continue the prosecution. Challenging the aforesaid order, two revision applications were filed before the High Court of Karnataka by the accused which having been dismissed, the same necessitated filing of these appeals by special leave.

3. Shri Dhruv Mehta, learned advocate appearing on behalf of the appellant, submitted that the power of attorney holders had no right to file an application under Section 302 of the Code to continue the prosecution which could have been filed by heirs of the complainant, as such, the petitions under Section 302 of the Code were not maintainable and liable to be dismissed on this count alone. Shri K.R. Chaudhary, learned Senior Advocate appearing on behalf of the respondents, on the other hand, submitted that the petitions under Section 302 of the Code by the power of attorney holders were maintainable and the trial court was justified in allowing the same.

4. The question that arises for consideration is as to whether application under Section 302 of the Code to continue the prosecution could be filed by power of attorney holders of heirs of the complainant? In order to appreciate the point, it would be useful to refer to Section 302 of the Code which runs thus:—

“Permission to conduct prosecution.—(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government ­Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so within such permission;

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally or by a pleader.”

5. The question as to whether heirs of the complainant can be allowed to file an application under Section 302 of the Code to continue the prosecution is no longer res integra as the same has been concluded by a decision of this Court in the case of Ashwin Nanubhai Vyas v. State of Maharashtra & Anr., 1967(1) SCR 807, in which case the Court was dealing with a case under Section 495 of the Code of Criminal Procedure, 1898, which is corresponding to Section 302 of the Code. In that case, it was laid down that upon the death of the complainant, under the provisions of Section 495 of the said Code, mother of the complainant could be allowed to continue the prosecution. It was further laid down that she could make the application either herself or through a pl