IMPORTANT POINT
Section 302 Cr PC empowers Magistrate to allow substitution of complainant to enable to continue proceedings.

I. A. Ansari, J.: Based on a complaint lodged by Shri Inder Chand Goenka (since deceased) for prosecution of the present petitioner, namely, Shri Kushal Kumar Talukdar as accused under Section 138 read with Section 142 of the Negotiable Instruments Act (hereinafter referred to as “the N.I. ‘Act’), Cr. Case No. 3002/2000 was registered in the court of the Chief Judicial Magistrate, Kamrup, Guwahati.

2. In course of time, in pursuance of the summons issued, the accused-petitioner appeared, through his counsel, in the said complaint case. While the Complaint Case No.3002 (C) 2000 aforementioned was pending in the court of the Chief Judicial Magistrate, Kamrup, Guwahati, the Complainant, Shri Inder Chand Goenka, died on 18.7.2000 and his only son, Shri Chandra Prasad Goenka, filed a petition on 18.9.2000, for substituting him as a complainant in place of his deceased father. This prayer was allowed by the learned Court below by its Order dated 18.9.2000, whereupon the accused-petitioner filed an application on 8.11.2000, for his discharge or acquittal in terms of the provisions of Section 256, Cr.P.C. This application was fixed for hearing on 13.11.2000; but on that day, the accused-petitioner was absent. As the accused petitioner remained repeatedly absent, the learned court below passed an Order on 22.2.2001, directing issuance of warrant of arrest against him.

3. Thereafter, the accused-petitioner made this application under Section 401/397 read with Section 482 of the Cr.P.C. impugning the Order, dated 18.9.2000, aforementioned, whereby the prayer of the opposite party herein, namely. Shri Chandra Prasad Goenka, (i.e. the son of the said deceased) to be substituted, in place of his father, as complainant, in the case at hand, had been allowed, and also the Order, dated 22.2.2001, aforementioned, whereby direction for issuance of warrant of arrest against the accused-petitioner was given.

4. None has appeared on behalf of the parties. However, Mr. Z. Kumar, learned counsel, was appointed and heard as Amicus Curiae. Also heard Mr. E H. Laskar, learned Additional Public Prosecutor, for the State of Assam.

5. The question, which has been raised by the accused petitioner is this:

Whether the impugned Order substituting the opposite party herein, who is the son of the said deceased, as complainant, in the complaint case aforementioned, which arose out of a complaint lodged for prosecution of the accused-petitioner under Section 138 read with Section 142 of the N.I. Act, is legally sustainable under Section 256 of the Code of Criminal Procedure.

6. The above question, in turn, brings us to a more fundamental question and the question is this: Whether a complaint lodged with a Magistrate, which discloses commission of an offence triable as a summons case, shall abate on the death of the complainant and if not, when and in what circumstances, such a complaint, even on the death of the complainant, be allowed to proceed?

7. In view of the fact that divergent views have been expressed on the above aspects of law by different High Courts and in view also of the fact that no reported decision of this Court, on the above aspect of law could be brought to the notice of this Court, it is desirable that the correct position of law governing the question posed above is ascertained. In this regard, it is important to bear in mind that in a trial of summons procedure case, it is Section 256, Cr.P.C. which comes into play in the case of death of the complainant during trial.

8. While answering the above question, it is important to bear in mind that the law aims at rendering substantive justice. Hence, its interpretation too shall be aimed at advancing the course of justice and not scuttling the legal proceedings on technicalities unless the clear legislative intendment is otherwise.

9. Before entering into the discussion the scope of Section 256, Cr.P.C., it is pertinent to note that Section 256, as it exists today, is an outcome of sev