The main legal point established in the judgment is that legal heirs of the deceased complainant can be substituted in his place and can continue the proceeding after his death, and the right to prosecute subsists even after the death of the original complainant.

JUDGMENT

Sashikanta Mishra, J. - Two interesting questions are involved in the present revision - whether a legal heir can be substituted upon death of the original complainant in a complaint case and if so, whether one legal heir can continue such proceeding against other legal heir(s).

2. The facts of the case lie in a narrow compass.

3. One Baidyanath Mishra (since deceased) filed a complaint case bearing ICC No. 55 of 2000 before the JMFC(O), Bhubaneswar alleging commission of offence under sections 426/448/506/34 IPC and Section 24 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. It was alleged by the complainant that a house had been purchased in the name of his deceased wife at Sailashree Vihar, Bhubaneswar, who died intestate, whereupon the property devolved on her sons, Ranjit Kumar Mishra, Sanjit Kumar Mishra, Susanta Kumar Mishra and married daughter Sasmita Mishra. The complainant was residing in the said house with his three sons as all his children had executed a registered General Power of Attorney in his favour. The mother of his daughter-in-law, Snehapama Devi started interfering in the complainant's life and so also his sons, threatened him to send him to jail on the false allegation of dowry demand. The complainant was forcibly evicted from his room on 19.03.2010 and was not permitted to enter the house and the room was given to the mother of his daughter-in-law. On such allegation, the complainant filed a complaint against his son, Sanjit Kumar Mishra, Snehapama Devi (mother of his daughter-in-law) and Padmini Priyadarshini Mishra (daughter-in-law). After conducting inquiry under Section 200 of Cr.P.C., learned trial court took cognizance of the offence under sections 426/506/34 IPC and summons was issued fixing 18.05.2010 for appearance of the accused persons. The eldest son of the complainant, namely, Ranjit Kumar Mishra was cited as a witness on 15.05.2010. The complainant died at Kalinga Hospital while under treatment. On 19.07. 2010, his eldest son, Ranjit Kumar Mishra filed a petition seeking to be substituted as a complainant expressing his desire to contest the case. The petition for substitution was opposed by the accused persons, who took the plea that the accused persons are liable to be discharged upon death of the complainant.

However learned Court below, by relying on the decision of the Apex Court in the case of Ashwin Nanubhai Vyas v. State of Maharashtra, (1967) 1 SCR 807 : AIR 1967 SC 983, allowed the petition for substitution by substituting the deceased complainant with Ranjit Kumar Mishra. The accused persons as named above being aggrieved have preferred the present revision with the present Ranjit Kumar Mishra being the sole opposite party.

4. Heard Mr. D. Panda, learned counsel for the petitioners and Ms. Agnisikha Ray, learned counsel for opposite party.

5. It is argued by Mr. D. Panda that unlike a civil proceeding, the Code of Criminal Procedure does not recognize substitution of a deceased complainant. Referring to the decision of Ashwin Nanubhai Vyas (supra), Mr. Panda contends that the Code provides only for dismissal of a complaint upon death of an accused but does not expressly provide for continuance of the complaint thereafter. Therefore, what happens on the death of the complainant, in a case started on a complaint has to be inferred generally from the provisions of the Code. According to Mr. Panda since the Code provides that in the absence of the complainant, the accused must be either acquitted or discharged, the same principle must be applied in the case of death of a complainant. It is alternatively argued by Mr. Panda that even assuming for the sake of argument that a legal heir can be substituted as the complainant upon death of the original complainant, the same would be permissible only against person or persons other than the legal heirs. In the instant case, one of the accused persons, namely Sanjit Mishra (petitioner no1) is admittedly a legal