Substitution of legal heir in criminal prosecution

Substitution of deceased complainant.

Section 256 of Code of Criminal Procedure, 1973 is contained in Chapter XX with the heading “Trial of summons­cases by Magistrates” provides as follows:

“Section 256. Non­ appearance or death of complainant.­(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub­section (1) shall, so far as may be, apply also to cases where the non­appearance of the complainant is due to his death.”

Section 302 of the Criminal Procedure Code is contained in Chapter XXIV with the heading “General provisions as to inquiries and trials” which relates to permission to conduct prosecution  is to the following effect:

“ Section 302. Permission to conduct prosecution

1. Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate­General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

2. Any person conducting the prosecution may do so personally or by a pleader.”

Complaint dismissed by Magistrate and Revision also dismissed. Death of complainant during pendency of petition filed before High Court. Order of High Court permitting impleadment of legal heir, challenged in Supreme Court.

Conclusion of Supreme Court:

High Court did not commit any error in allowing the legal heirs of the complainant to prosecute the Criminal Misc. Petition before the High Court. We do not find any error in the order of the High Court.

[Source: Chand Devi Daga . vs Manju K. Humatani, decided by SC on 3 November, 2017]
See also following cases relied in this case:

“The   question   as   to   whether   the   heirs   of the   complainant   can   be   allowed   to   file   an application under Section 302 of the Code to continue   the   prosecution   is   no   longer   res integra   as   the   same   has   been   concluded   by   a decision of this Court in the case of Ashwin Nanubhai   Vyas   v.   State   of   Maharashtra (AIR 1967 SCC 983)  in which case the Court was dealing with a case under   Section   495   of   the   Code   of   Criminal Procedure,   1898,   which   is   corresponding   to Section 302 of the Code. In that case, it was laid   down   that   upon   the   death   of   the complainant,   under   the   provisions   of   Section 495   of   the   said   Code,   mother   of  the complainant could be allowed to continue the prosecution.   It   was   further   laid   down   that she could make the application either herself or   through   a   pleader.   Indisputably,   in   the present   case,   the   heirs   themselves   have   not filed   the   applications   to   continue   the prosecution, rather the same have been filed by their power ­of­ attorney holders…….”

[Source: Jahangir Madan Vs. Bolly Caiyappa Hindley, (2004) 12 SCC 509]
[ Balasaheb K. Thackeray Vs. Venkat @ Babru, (2006) 5 SCC 530]

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