Honble YAMIN, J.–These two Misc. Petitions are to be decided together by this single order as they relate to the same proceedings pending before the learned Judicial Magistrate Balesar in Cr. Complaint Case No. 22/87.

(2). Cr. Misc. Petition No. 678/94 is a petition which challenges the order of learned Magistrate dated 17.9.1994 by which he allowed the proceedings to continue though the complainant had expired; and Cr. Misc. Petition No. 80/95 is directed against the order dated 3.12.1992 by which the Magistrate had taken cognizance though an application was filed by the accused petitioners that Chain Singh complainant had expired as long back as in the year 1987 and the case could not proceed and his son could not have been impleaded as a party but proceeded with the case.

(3). I have heard the learned counsel for the petitioners accused persons as well as learned counsel for the complainant.

(4). Briefly stated, Chain Singh filed a complaint against the accused petitioners alleging that he was a respectable person of his village and a Sarpanch for last 36 years. He became Vice Chairman of Panchayat Samiti, Shergarh and was continuing to be so for last four years. The petitioners were on inimical terms and used to insult him. They formed an assembly in order to insult and defame him and were always propagating against him. Smt. Ratan Kanwar was their leader. They published a news item in Rajasthan Patrika dated 10.7.1987 with the allegation that Smt. Ratan Kanwar has submitted a memorandum to Chief Secretary to investigate about the construction work carried in village Tena under the Sarpanchship of Chain Singh and in the meantime to suspend him. All the allegations in the memorandum were levelled to defame him. On publication of this news item the petitioner lost his respect and his honour was reduced in the eyes of public. Then again the news was got published in Navbharat Times dated 13.7.1987. The other co-accused persons submitted a written defamatory complaint to District Collector, Jodhpur. An inquiry was made and ultimately the complainant was exonerated as the complaint was found false and baseless. On the basis of complaint filed in the court, Magistrate having jurisdiction made inquiry under Chapter XV Cr. P.C. and dismissed the complaint on 18.9.1987. A revision was filed against the order and vide order dated 7.9.1990 learned Additional Sessions Judge ordered to hold further inquiry. Then learned Magistrate took cognizance vide order dated 4.2.1991 under Section 500/149 IPC. It is relevant that the complainant expired during the pendency of the case but the learned Magistrate did not dismiss the complaint and instead substituted Bachan Singh, the son of Chain Singh, as complainant.

(5). The only point to be considered in this case is whether after complainant died, the complaint should continue?

(6). Learned counsel for the petitioners cited Jagdeesh vs. Jagni & Ors., (1), in which it was held that in criminal jurisprudence ``complainant meant only the person who makes complaint to Magistrate and who is examined as complainant under Section 200 Cr. P.C. None else can be deemed to be complainant, however interested he may be in the case and when the complainant dies Magistrate has no option but to acquit the accused in a summons case instituted on complaint. The legal heir of complainant in such a case cannot prosecute the case after death of complainant. As against this learned counsel for the respondent canvassed that since the honour of the father of the respondent was involved in this case he had every right to continue the case. Relying on Subbamma and another vs. V. Muthuswamy (2), he submitted that the Magistrate has discretion to substitute fit and willing complainant. He also cited Maung and another vs. The King (3), Anand Rao vs. Gadi (4) and Mahomed Azam vs. Emperor (5), in support of his arguments.

(7). So far as citations relied by learned counsel for the respondent are concerned, I may state that in AIR 1

Click Here to Read the rest of this document