The death of the complainant does not automatically lead to the dismissal of the complaint. The trial court has the discretion to continue the proceedings and allow another person to prosecute the case.

1. Smt. Jasbir Kaur wife of Joginder Singh filed a complaint against Balbir Kaur (petitioner) widow of Rajwant Singh and some others under Sections 494/114/109/34, Indian Penal Code, in the Court of Hukam Chand, Judicial Magistrate, Ist Class, Patti, district Amritsar on 2nd May, 1985.

2. After preliminary evidence, the petitioner was summoned along with other accused to stand trial. During pendency of the said complaint, Jasbir Kaur complainant died and an application was filed by her father Dalip Singh in the said Court that he may be allowed to continue with the said proceedings and vide order dated 22nd Aug. 1986 passed by the trial Court he was allowed to continue with the proceedings. After appearing before the trial Court, the petitioner filed an application alleging that Jasbir Kaur deceased was the only aggrieved person with the alleged second marriage and as she had died, the complaint should be dismissed in her absence, and the petitioner be discharged. This application was dismissed vide order dated 3rd Feb. 1987, annexure-P. 1. The petitioner has come up before this Court for quashing the said order.

3. Learned counsel for the petitioner basing his arguments on the provisions of Section 249 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974) (hereinafter called the Code) has submitted that the death of the complainant amounts to her absence and therefore under Section 249 of the Code, the order and the complaint should be quashed and more so because under Section 198 of the Code only an aggrieved person can file the complaint and as the aggrieved person has already died, this complaint is not maintainable.

4. I have heard the counsel for the parties at length and am of the view that in such a situation, as in the present case, the trial Court has the discretion to continue the proceedings and for that purpose it can allow any other person to prosecute and in its discretion it has allowed Dalip Singh, father of the complainant deceased, to continue the complaint against the petitioner and others. Section 249 of the Code reads as under :-

"When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate , may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused."

Similar provision was there in the old Code under Section 259 and in Ali Dar V/s. Mohd. Sharif, AIR 1966 J and K 60 : (1966 Cri LJ 412), a Division Bench of that Court has interpreted Section 259 as under :-

"As would appear from the authorities cited above, the three conclusions as enunciated in an earlier part of this order are clearly brought out. As indicated earlier we would prefer the view which lays down that a criminal complaint does not automatically come to an end on the death of the complainant and the accused cannot be discharged or acquitted simply because the complainant is dead and, therefore, is absent on the date of hearing of the case. This view is further strengthened from the following observations. The offences in this case for which the accused have been summoned are under Sections 447 and 427 of the RPC. Section 447 is a cognizable offence though offences under both the sections are compoundable. The argument in this case is whether the death of the complainant would bring to an end the criminal complaint lodged by Sultan Dar or that his brother Ali Dar should be permitted to continue the proceedings. The emphasis is on the word absent. In Section 247 which is a section with a similar aim and governs summons cases the words used are the complainant does not appear. It is the interpretation of these two words absent and does not appear that is primarily the subject-matter of discussion between the parties. In our opinion is absent or does not appear would govern cases where there