This case originally came up before one of us, but regard being had to the divergence of opinion amongst the different High Courts on the point of law involved in this case, it was referred to a Division Bench and has been heard by the Division Bench.

The facts giving rise to the petition are that one Sultan Dar instituted a complaint under Ss. 447, 427 and 506 of the RPC against the respondents, Mohd. Sharif & others before the ADM Srinagar on 29-5-61. The case was transferred to the court of the First Additional Munsiff Magistrate Srinagar. The allegations made in the complaint were that there was a joint land belonging to the complainant and his brother, Ali Dar, which was in their possession and upon which they had planted certain trees. The accused mentioned in the complaint trespassed on this land and felled down certain trees planted on this plot of land by the complainant Sultan Dar and his brother and thereby caused mischief. After examining the complainant and one witness process under Ss. 447/427 was issued against the accused mentioned in the complaint. When the case was going on, an application was presented on 12-3-61 by Ali Dar, brother of Sultan Dar complainant, that he be permitted to continue the complaint lodged by his deceased brother as he was equally interested in the result of the complaint. Objections against this application of Ali Dar were taken by the trial court of the First Additional Munsiff Magistrate Srinagar and after hearing arguments the trial court dismissed the case under S. 259 of the Criminal P. C and discharged the non-applicants by order dated 20-5-64. This order was upheld by the learned Additional District Magistrate Srinagar by his order dated 25-2-65. Both the orders of the courts below are the subject matter of this revision.

It may be stated without any reserve that the different High Courts in India have taken contrary views in such cases. Some High Courts have held that the death of a complainant in a summons or a warrant case ipso facto terminates the proceedings and the accused are entitled to acquittal or a discharge as the case may be. Some other High Courts have taken the view that the death of a complainant has no effect on the criminal proceedings and they shall continue despite the fact that the original complainant is dead. There is a via media struck by some courts which have held that where the criminal case is based on a wrong to the person of the deceased the death of the complainant will end the criminal prosecution; otherwise the criminal case will continue. Some of these cases decided by different High Courts will be reviewed at their proper place. But before we discuss the different contradictory and conflicting authorities on this point, we have to keep in view certain basic facts which govern criminal cases.

A crime is an unlawful act which is not an offence against any particular individual, but is against the public as such and in all criminal proceedings the principle underlying is that a crime is an unlawful act or default which is made against the State and the crown is the virtual prosecutor in every case. "A crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment". See Mann v. Owen, (1829) 9 B & C 595. Similarly in Mogul S. S Co v. Mac Gregor, (1889) 23 QBD 588 Lord Esher said An illegal act which is wrong against the public welfare, seems to have the necessary elements of a crime." In Parker v. Green, (1862) 2 B&C299 and Mellor v. Denham, (1880) 5 QBD 467 it has been laid down : While a crime is often also an injury to a private person, who has a remedy in a civil action, it is as an act or default contrary to the order, peace, and well being of society that a crime is punishable by the State.

A division Bench of the Calcutta High Court in 12 CWN 750 said : "The grounds on which we have been asked to set aside the conviction are (1) that the accus