Legal representatives of a deceased complainant can be permitted to continue the prosecution under Section 302 of the Code of Criminal Procedure.

H. R. PANWAR, J.

( 1 ) BY this criminal miscellaneous petition under section of the Code of Criminal Procedure, 1973 (for short, "the hereinafter), the petitioners have challenged the order on 4. 4. 2005 passed by the additional Sessions Judge No. 2, Sri ganganagar (for short, "the Revisional Court" hereinafter)in Revision No. 1/2005, whereby the revision petition filed petitioner against the order dated 18. 12. 2003 passed by Judicial Magistrate, Sri ganganagar (for short, "the trial hereinafter) was dismissed.

( 2 ) I have heard learned counsel for the petitioner and the Public Prosecutor for the state. No one appears for the non-petitioner no. 2 though served. Carefully gone through the orders passed by the trial Court as well as the Revisional Court.

( 3 ) THE facts of the case, relevant and necessary for the decision of this criminal miscellaneous petition, are that a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act" hereinafter) was filed by complainant Suresh jain against non-petitioner No. 2 Mukesh kumar. During pendency of the complaint, complainant Suresh Jain died. The petitioners, who are legal representatives of deceased Suresh Jain, filed an application on 18. 12. 2003 before the trial Court for taking them on record as the legal representatives of deceased complainant Suresh Jain and permitting them the prosecution/continuing the proceeding initiated by the deceased complainant. The trial Court, vide order dated 18. 12. 2003, dismissed the application. Being aggrieved by the order of the trial court, the petitioners filed a criminal revision, which has been dismissed by the Revisional Court vide impugned order dated 4. 4. 2005.

( 4 ) SECTION 302 of the Code provides that 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 without 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. Sub-section (2) of Section 302 of the Code provides that any person conducting the prosecution may do so personally or by a pleader.

( 5 ) THE question whether on the death of the complainant first/informant, the legal heir of such deceased can be permitted prosecution/continuance of proceedings, came to be considered by the Honble Supreme Court in Ashwin Nanubhai Vyas v. State of maharashtra, wherein the Honble Apex court, while considering the provision of section 495 of the Code of criminal Procedure, 1898 (for short, "the Old Code" hereinafter), which is corresponding to Section 302 of the New Code, held that upon the death of the complainant, under the provisions of Section 495 of the Old Code, mother of the complainant could be allowed to continue the prosecution.

( 6 ) IN Jimmy Jahangir Madan v. Bolly cariyappa Hindley (Dead) by LRs2 this issue again came up for consideration by the Honble Supreme Court and the Apex Court held that the question as to whether the heirs of the complainant be allowed to file an application under Section 302 of the case to continue the prosecution is no longer res integra as the same has been concluded by the Supreme Court in the case of Ashwin nanubhai Vyas v. State of Maharashtra (supra), in which case the Court was dealing with the provision of Section 495 of the old Code which is corresponding to Section 302 of the New Code. In that case it was laid down that upon the death of the complainant, under the provisions of Section 495 of the Old Code, the mother of the complainant can be allowed to continue the prosecution. It was further laid down that she could make application either by herself or through a pleader.

( 7 ) IN the recen