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…….”
Mystery of Law and Justice 