l Father of the petitioner Rishi Raj filed a complaint against the respondents under section 323, 427 and 451 RPC in the trial court of sub-Registrar Judicial Magistrate, Jammu on 25-4-1982 Durina the pendency of the proceedings, the complainant died and his son Ashok kumar the present petitioner filed an application in the trial court on 26-11-1984 for permission to continue criminal prosecution against the accused person which was launched by his father. The trial magistrate vide his order dated 21-4-1985 directed the prosecuting officer to conduct the proceedings on behalf of the complainant and proceeded with the case till date when the complaint was dismissed allegedly on the ground of the absence of the complainant. Petitioner preferred a revision petition and the learned 1st. Addl. Sessions Judge Jammu vide the order of reference has recommended for setting aside the order of the trial court and prosecution of the complaint in accordance with the provisions of law

2. I have heard the learned counsel for the petitioner and perused the record. No one has appeared for the respondents.

3. It is true that there is no provision for bringing on record the legal representatives of a party in criminal proceedings but as the penal offence committed by a person unless from the nature of it is personal to the complainant is an offence against the society and has to be prosecuted in accordance with the provisions of law till its final disposal. Section 495 Cr. P. C. authorises the Magistrate to permit any person to conduct the prosecution on behalf of the compliant. The application filed by the son of the complainant namely Ashok Kumar appears to have not been decided and the prosecuting Officer directed to appear on behalf of the complainant for conducting the case Once the Prosecuting Officer was directed to appear for the complainant there was no question for dismissing the complaint for the alleged absence of the complainant either under Sec 247 or 259 of the Cr P. C. Merely on the death of the complainant, the complaint filed by him cannot be dismissed nor the accused acquitted or discharged under Section 247 or 259 Cr, P. C. A Division Bench of Calcutta High Court in Smt. Mayabati Halder V, Rent controller Calcutta dealt with the matter and held: (AIR 1981 Calcutta 118).

" The view that Section 247 also applies to the non-appearance of the complainant became of his death presupposes by necessary implication that section 247 is a provision dealing with the consequence of the death of a complainant. In repelling such view, the learned Judge has placed reliance on a decision of the Supreme Court in Ashwin Vs. The. State of Maharashtra, AIR 1967 SC 983. In that case, the complainant died at the committal stage under chapter XVII of the Code. The question that came to be considered by the Supreme Court was whether the complaints mother could be substituted as the fit and proper complainant as prayed for by her or whether the proceedings had ipso facto came to an end on the death of the complainant. While over ruling the contention of the accused that the proceedings terminated on the death of the complainant, the Supreme Court observed :

"The Code of Criminal Procedure provides only for the death of an accused or an appellant but does not expressly provide for the death of a complainant. The Code also does not provide for abatement of inquiries and trials although it provides for the abatement of appeals on the death of the accused in appeals under section 411-A (2) and 417 and on the death of a appellant in all appeals except an appeal from a sentence of fine. Therefore, what happens on the death of a complainant, in a case started on a complaint as has to be inferred generally from the provisions of the Code."

We need not analyse those cases because, in our opinion, unless the Code it self says what is to happen, the power of the Court to substitute another prosecution agency (subject to such restrictions as may be found) under sectio

Click Here to Read the rest of this document