In a warrant case, even if the complainant is absent, the Magistrate cannot dismiss the complaint if the offence is cognizable and non-compoundable.

1. Ram Kumar son of Jagdish Ram and Smt. Ram Kumari wife of Shri Kundan Lal have filed the present petition against Smt. Prem Lata widow of Shri Banarsi Dass, which is directed against the judgment dated 27th September, 1996 passed by the Court of Additional Sessions Judge, Ropar, who allowed the revision petition filed by Smt. Prem Lata alias Kamla respondent widow of Shri Banarsi Dass, who filed the main complaint, and set aside the order dated 7th October, 1995 passed by the Judicial Magistrate 1st Class, Anandpur Sahib, and gave directions that Smt. Prem Lata be substituted in place of her husband Shri Banasri Dass complainant in the complaint filed under Sections 379, 380, 420, 448 etc., Indian Penal Code.

2. The brief facts of the case are that Shri Banarsi Dass filed a complaint against Ram Kishan and Smt. Ram Kumari and both these persons were summoned to face the trial under Sections 447, 379, 380 read with Section 34 of the Indian Penal Code, vide order dated 14th December, 1994. This complaint related to the occurrence which allegedly took place on 22nd September, 1992. After appearance of the accused, the learned Magistrate recorded some pre-charge evidence. Thereafter, Shri Banarsi Dass, the main complainant, died. Smt. Prem Lata claiming herself to be the widow of Banarsi Dass made an application before the learned Magistrate for grant of permission to continue the proceedings against the accused. This application was moved by Smt. Prem Lata on 27th September, 1995 (Annexure P5). The learned Magistrate declined the application vide order dated 7th October, 1995 and the reasons advanced by the learned Magistrate are contained in para No. 4 of his order (Annexure P2), which are reproduced as follows :

"4. I have gone through the averments of the application and the reply filed by the respondent-accused and heard the parties on this application. I have come to the conclusion that it is admitted fact that Banarsi Dass has died and in these circumstances his personal appearance is to be exempted. Now the main controversy which is to be determined by the Court is that whether applicant Prem Lata can be substituted in place of Banarsi Dass deceased complainant or not. In this regard I am of the view that first of all the applicant has to prove that she is the aggrieved party so far the present complaint is concerned but in my opinion she has to prove the fact that she is aggrieved in any manner because the complaint pending before me has been filed by Banarsi Dass the alleged husband of Smt. Prem Lata and it pertains to theft of articles belonging to Banarsi Dass and occupation of his shop and Chubara. So if these are the allegations of the complainant then I do not find any justification that in any manner Prem Lata applicant can be said to be aggrieved party. Keeping in view the provisions of Sections 198 and 256 Cr. P.C. I am of the view that in the circumstances only theperson aggrieved can prosecute the wrong doer in the absence of real complainant but in the present case Smt. Prem Lata, the alleged widow of Banarsi Dass, has failed to prove the fact that how she is an aggrieved party and she cannot be substituted and allowed to prosecute the proceedings against the accused in the absence of Banarsi Dass. Obviously the cause of action if any was there that was to only Banarsi Dass complainant and not to anybody else. Apart from this there are other certain alleged legal heirs of Banarsi Dass. They are also the aggrieved persons and can be deemed to be aggrieved. So the alleged widow of Banarsi Dass claiming herself to be only legal heir of Banarsi Dass cannot be allowed to proceed with the present complaint. Apart from this the nature of the complaint is such that in these circumstances she cannot be allowed to prosecute the accused-respondent for want of proper complainant, who was the real aggrieved party in this case. It was incumbent upon Prem Lata to file this application accompanied by duly attested a