The main legal point established in the judgment is that in a summons-case, the death of the complainant leads to the mandatory acquittal of the accused under section 256(1) Cr. P.C.

1. - The following questions of law required consideration in the present petition which has been filed under Section 482 Cr. P.C. :

(i) What is the effect of death of the complainant in a summons-case.

(ii) Whether an order of acquittal passed under section 256(1) Code of Criminal Procedure can be challenged in a petition filed under Section 482 Cr. P.C.?

2. The circumstances under which these questions have arisen for consideration may be narrated.

3. One Ram Chandra filed a complaint against accused non-petitioners in the court of Additional Chief Judicial Magistrate, Deeg with the allegations that they (accused petitioners) entered in his plot at 10.00 P.M. on July 20, 1985 and took away woods and stones valuing Rs. 1100/- in all. This complaint was filed on July 31, 1985.

4. After taking cognizance on the complaint, the learned Magistrate recorded the statement of the complainant Ram Chandra and other witnesses under sections 200 and 202 Cr. P.C. and thereafter vide order dated 12-9-1985 issued process against all 12 accused non-petitioners for the offence under sections 147, 447 and 427 I.P.C. On the next date, all the accused persons appeared in the above court of the Magistrate. Thereafter, substance of accusation was stated to the accused persons by the learned Magistrate on 17/1/1986. The accused persons pleaded not guilty.

5. From the order-sheets of the trial court, it appears that the case was fixed for recording the prosecution evidence on several dates, but the statement of even a single witness was not recorded as no witness appeared in the court and Presiding Officer was also transferred and no other Presiding Officer was posted in the said court. Then, the case was transferred to the court of Additional Chief Judicial Magistrate, Bharatpur. The Additional Chief Judicial Magistrate fixed the case for recording the prosecution evidence on 29/9/1988. It appears that on account of the strike of the employees, the case file was not placed before the Magistrate on 29/9/1988. The case was listed before the court on 15-11-1988. On this date, the petitioner Jagdeesh, who is son of the complainant Ram Chandra moved an application in the trial court that his father Ram Chandra had died on Oct. 2, 1988, as such, he should be permitted to prosecute the case in his place. This application was opposed by the accused persons. The learned Magistrate vide impugned order dated April 14,1989 rejected the application filed by the petitioner Jagdeesh and acquitted all the accused persons under section 256(1)Criminal Procedure Code.

6. Being aggrieved against the aforesaid order, the petitioner has filed this petition under Section 482 Criminal Procedure Code.

7. The contention of the learned counsel for the petitioner is that in case of death of the complainant, it is not obligatory for the Magistrate to acquit the accused persons under section 256 (1) Cr. P.C. He further argued that all the accused persons entered in the plot of the complainant and removed stones and wood valuing Rs. 1100/-, as such, the offences committed by them are against the property. The learned counsel also referred to 41st Report of the Law Commission to substantiate his arguments that it is not obligatory for the court to acquit the accused on the death of the complainant in all cases.

8. On the other hand, the learned Public Prosecutor and the counsel for the accused persons vehemently argued that in case of death of the complainant in the trial of a summons-case, the Magistrate has no option but to acquit the accused under section 256(1) Cr. P.C. They further contended that the present petition under Section 482 Cr. P.C. is not maintainable, in as much as, the order of the learned Magistrate acquitting the accused under section 256(1) Cr. P.C. is appealable.

9. I have given my thoughtful consideration to the above contentions of the learned counsel for the parties. In the code of Criminal Procedure, the word 'complaint' (sic complainant) is not define