IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.48923 of 2007 ALPANA SEE @ GOPE DEVI Versus THE STATE OF BIHAR ----------- 03 24.02.2009 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by the order dated 6.9.2007 in Enquiry Case No. 218 of 2006/ 68 of 2007, by the Judicial Magistrate, Motihari, arising out of Protest-cum- Complaint Case No. 363 of 2003 (Town P.S. Case No. 136 of 2007). The original complainant one Nimai Kumar was deceased during the pendency of the complaint. His son Sudhir Kumar, filed an application for being substituted as the complainant which came to be allowed on 1.2.2006. The petitioner, who is the wife of the aforesaid Nimai Kumar, then filed another application for substituting her in place of the original deceased-complainant on the ground that she was the legal heir and the son could not be the legal heir in her life-time. A copy of the application preferred by the petitioner is appended at Annexure-3. No ground has been mentioned therein, why the order substituting the son of the deceased was not in accordance with law and - 2 - was required to be set aside. Whether the provision of law applicable to be under Section-249 Cr.P.C. or 302 Cr.P.C., is hardly relevant if the source of the power be there under Code of Criminal Procedure for substitution of the deceased- complainant to pursue the matter. Faced with the difficulty of lack of any grounds in the application preferred by the petitioner assailing the substitution by the son of the deceased, learned counsel for the petitioner prays for leave to withdraw the application to enable the petitioner to pursue the matter afresh before the court below in accordance with law. This Court makes no observation on that aspect of the matter when the petitioner has found it difficult to persuade this Court to interfere with the impugned order. The application is dismissed as withdrawn with the liberty aforesaid. P.K. (Navin Sinha, J.)