Non-legal heirs can continue prosecution in criminal cases after the complainant's death, even if legal heirs are alive, under Section 302 of Cr.P.C.

ORDER :

Kauser Edappagath, J.

Can a non-legal heir of a complainant in a complaint case be permitted to continue the prosecution on the death of the complainant when his legal heirs are alive and have not come forward to prosecute the case? - This is the interesting question involved in this criminal revision petition.

2. The revision petitioners are the accused in C.C.No.787 of 2011 on the files of the Judicial First-Class Magistrate Court-I, Attingal (for short, 'the trial court'). The said case arose out of a protest complaint filed by the deceased brother of the respondent No.2, namely Sri.Sudarsanan. The offences alleged are punishable under Sections 395, 465, 467, 468, 471 r/w Section 34 of IPC.

3. Originally, the brother of the respondent No.2 filed a private complaint as Crl.M.P. No. 5151 of 2009 before the trial court against the petitioners. The trial court forwarded the said complaint to the Chirayinkeezhu Police under Section 156(3) of Cr.P.C. The police registered the crime as Crime No.48 of 2010. After investigation, the police filed a negative final report and referred the case on 20.01.2010. The complainant filed a protest complaint before the trial court. The trial court received the complaint on file, numbered it as C.C.No.787 of 2011, took cognizance of the offences and issued process to the petitioners. The petitioners appeared before the trial court. During the pendency of the proceedings before the trial court, the complainant died on 14.02.2019. Thereafter, the respondent No.2 herein, who is the sister of the deceased complainant, filed a petition as C.M.P.No.1512 of 2019 invoking Section 302 of Cr.P.C. to prosecute the case. The revision petitioners objected to the said petition mainly on the ground that the daughter of the complainant is alive and hence his sister has no locus standi to file a petition to prosecute the case. The trial court overruled the said objection and allowed the petition as per the order dated 14.01.2020. This revision petition has been filed by the petitioners challenging the said order.

4. I have heard Sri.M.Dinesh, the learned counsel for the revision petitioners, Sri.R.N.Sandeep, the learned counsel for respondent No.2 and Sri.E.C.Bineesh, the learned Senior Public Prosecutor.

5. The learned counsel for the petitioners submitted that the daughter of the deceased complainant, who is his legal heir under the Hindu Succession Act, is alive and hence the respondent No.2, who is not a legal heir, has no locus standi to file a petition to prosecute the case. The learned counsel for the petitioners further submitted that since the legal heir of the deceased complainant has not come forward with a petition under Section 302 of Cr.P.C. to prosecute the complaint, the petition filed by the non-legal heir is not maintainable.

6. Per contra, the learned counsel for the respondent No.2 and the learned Senior Public Prosecutor submitted that, going by Section 302 of Cr.P.C., the Court can permit any person to prosecute the case on the death of the complainant and hence the impugned order does not warrant any interference.

7. There is no specific provision in Cr. P.C., which permits a legal heir or legal representative of the deceased complainant in a complaint case to be substituted for prosecuting the case. In a case instituted on a police report, even if the de facto complainant dies, no question of abatement arises as the prosecutor conducts the trial. As per sub-section (1) of Section 256 of Cr. P.C., in trials of summons cases instituted otherwise than on a police report, if the complainant is absent, the Magistrate shall acquit the accused unless, for some reason, he thinks it proper to adjourn the hearing of the case to some other day. Under sub-section (2), the provisions of sub-section (1) are made applicable to cases where the non-appearance of the complainant is due to his death. Thus, in trials of summons cases instituted otherwise than on a police report, even in the event of the deat