IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.30964 of 2005 SHEORAJ PRASAD son of Nathuni Mahto, resident of Village- Bela, P.S. Chiraiya, District- East Champaran. . . . . . Petitioner. Versus THE STATE OF BIHAR & ANR For the Petitioner : M/s Uma Kant Shukla, Shakti Suman Kumar, Rajesh Ranjan, Advocates For the State : Mr. Atul Chandra, A.P.P. ----------- 13/ 23.06.2010 Heard learned counsel for the petitioner and the State. The petitioner has prayed for quashing the order dated 15.06.2005, passed in Tr. No. 1856 of 2005, whereby Sub-Divisional Judicial Magistrate, Sikarhana at Motihari, dismissed the application filed under Section 256 of Cr.P.C. on behalf of the petitioner for his acquittal on the ground of the death of the complainant. The facts of the case in short is as follows: One Pankali Devi, wife of opposite party no.-2 filed complaint on 06.05.2003 under Section 376/511 of the Indian Penal Code against the petitioner. She alleged that on 04.05.2003, while she was returning after attending call of nature, the petitioner attempted to commit rape upon her by removing her clothes. The Complainant raised alarm on which the villagers rushed and saved her from the ignominy of sexual assault. The petitioner’s case is that Kuldip Thakur, father-in-law of the complainant, is an accused in Chiraiya P.S. Case no. 80 of 2002, under Section 379/34 of the Indian Penal Code, in which charge-sheet has been submitted and cognizance has been taken by order dated 24.01.2003. The aforesaid case was instituted on the petition filed by the brother of the petitioner. The petitioner is also a witness in the - 2 - aforesaid case. The petitioner submits that the complainant has been set up by her husband and father-in-law in instituting this false case, with a view to put pressure upon the petitioner and the family members from deposing in a theft case bearing Chiraiya P.S. case no. 80 of 2002 against the complainant’s father-in-law. On 19.05.2003, after enquiry cognizance has been taken in the instant case, under Sections 376/511 of the Indian Penal Code against the petitioner on 19.05.2003. On 28.05.2004, the case was committed to the Court of Sessions. The petitioner being aggrieved filed a quashing application being Cr. Misc. No. 15851 of 2003. This Court by order dated 13.07.2004 held that no case under Section 376 of the Indian Penal Code is made out and remanded the matter back to the court to reassess and reappraise the materials already available on the record, and to come to the conclusion whether an offence is made out under any other provisions of the Penal Code. As cognizance under Section 376 of the Indian Penal Code was quashed, the 7th Additional Sessions Judge, East Champaran, Motihari, who was in seisin of the case returned the record to the Sub-Divisional Judicial Magistrate, Sikarhana vide his order dated 05.08.2004. In view of the direction of this Court, learned Sub-Divisional Judicial Magistrate, Sikarhana reappraised the evidence and by order dated 04.10.2004 took cognizance under Sections 323 and 354 of the Indian Penal Code. In the meantime, the complainant Pankali Devi died on 09.03.2004. On the very next date i.e. 26.03.2004, one Darshan - 3 - Thakur, complainant’s husband, filed a petition that her wife Pankali Devi has died and he be allowed to do Pairvi in this case. The petition of the complainant’s husband was kept on record. On 11.02.2005, accusation under Section 323 and 354 of the Indian Penal Code was explained to the petitioner, who was the sole accused of the case. On 11.03.2005, the accused filed a petition under Section 256 of the Cr.P.C. and the reply to the same was filed on 30.03.2005. The learned Sub-Divisional Judicial Magistrate, Sikarhana vide his order dated 15.06.2005, rejected the application filed on behalf of petitioner to acquit him of the offence, as the complainant’s husband is ready to contest the case on her behalf. The aforesaid order is impugned in this quashing application. This Court by order dated 22.06.2006 had issued notice and stayed further proceeding in this case. Furthermore, on 03.07.2007 this court also called for the record of this case. The petitioner submits that the complainant died on 09.03.2004 and no person was substituted on her behalf for 1 ½ years, as such the case stands abated and the petitioner is entitled to acquittal in view of Section 256 of the Cr.P.C. He submits that Section 256 of Cr.P.C. states that after issuance of summons, if the complainant does not appear, the Magistrate shall acquit the accused, unless for some reason, he thinks it proper to adjourn the hearing of the case to some other day. Thus, he submits that as complainant remained absent for 1 ½ years, the case stands abated. In support of his submissions, learned counsel has relied upon a decision in case of S. Rama Krishna Vs. S. Rami Reddy reported in AIR 2008 SC 2066. - 4 - Counsel for the State submits that unlike a civil proceeding, a criminal case does not abate, as it is not a crime against an individual or a group of persons, but against the society at large. He further submits that any one can set the criminal prosecution in motion. Moreover, the criminal law does not prohibit continuing with the prosecution by a kith and kin or a friend, in case of death of the complainant, as such the impugned order of the learned trial court, rejecting the application of the petitioner under Section 256 of Cr.P.C. is just and proper. The State counsel has relied upon decisions in case of Nathu Jeorakhan Vs. Sheopal Kuppa and others, reported in AIR 1963 Madhya Pradesh 47; a Division Bench judgment in case of Ali Dar Vs. Mohd. Sharif and others, reported in AIR 1966 Jammu & Kashmir 60; and case of Helen C. Pinheiro & Ors Vs. M/s. Kamaxi Steel Products, reported in 2000 CRI. L.J. 1622. Counsel for the state submitted that the complainant, Pankali Devi died on 09.03.2004 and on the very next date on 26.03.2004, a petition was filed by her husband, Darshan Thakur that he be allowed to do Pairvi in the case in her place. Unfortunately, no one has appeared on behalf of opposite party no.2, despite valid service of notice. In order to appreciate the rival submissions of the parties, it would be relevant to examine Section 256 of Cr.P.C., which is quoted hereinbelow: “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 - 5 - 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 sub-section (1) shall, so far as many be, apply also to cases where the non-appearance of the complainant is due to his death.” Section 256 of Cr.P.C. relates to non-appearance or death of complainant. It states that on the day appointed for the appearance of the accused, the complainant does not appear in spite of summons, the Magistrate would acquit the accused, unless for some reasons, he thinks it proper to adjourn the hearing of the case to some other day. However, in view of the proviso to the section, if the complainant is represented by a pleader and in the opinion of the Magistrate, if the personal attendance of the complainant is not necessary, the court may dispense with his attendance. Let us now examine the legal position of the case in view of section 256 and ratio laid down in cases referred by the parties. It would appear from the impugned order dated 15.06.2005 of the Magistrate that the husband of the complainant has filed a petition for doing Pairvi on her behalf and further stated therein that witnesses are willing to depose in the instant case. Learned Magistrate - 6 - also observed that husband of the complainant is ready to contest the case on her behalf. Unfortunately, the complainant’s husband, who proposed to be substituted in place of deceased did not press the application dated 26.03.2004 nor did the court took up the petition, though Hazri was regularly filed on behalf of the complainant. On the other hand, the petitioner filed a petition on 11.03.2005 for acquittal in terms of Section 256 of the Cr.P.C., as the complainant was not appearing in the case. In case of S. Rama Krishna Vs. S. Rami Reddy (Deceased By L.Rs.) & Ors., reported in AIR 2008 SC 2066, Rami Reddy filed a complaint under Section 138 read with Section 142 of the Negotiable Instrument Act, on 06.06.2001. The complainant expired on 28.10.2003. The proposed heirs of Rami Reddy filed an application for substitution of their names in his place on 22.12.2003. However, no order was passed on the said application. The counsel appearing on behalf of the complainant represented the proposed heirs of the said Rami Reddy. It further appears that from 18.04.2005 till 21.03.2006 i.e. on 14 dates, no one represented the complainant. The accused S. Rama Krishna (appellant in Supreme Court) filed a petition under Section 256 of the Cr.P.C. for acquittal, as respondent has not been attending the court. The learned Magistrate allowed the petition and acquitted the accused S. Rama Krishna. The High Court reversed the order of the Magistrate setting aside the acquittal. The appellant S. Rama Krishna moved the Hon’ble Apex Court against the impugned order of High Court setting aside the order of acquittal under Section 256 of the Cr.P.C. by the Magistrate. The Hon’ble Apex Court in - 7 - paragraph-8 observed that it was obligatory on the part of the respondents to press application for substitution. Furthermore, they did not file attendance of the witnesses and the case was fixed for hearing. The Hon’ble Apex Court noticing that speedy trial is a fundamental right of an accused, set aside the order of the High Court reversing the order of acquittal, passed by Magistrate under Section 256 of the Cr.P.C. In case of Nathu Jeorakhan (Supra), the learned Single Judge of Madhya Pradesh High Court relying upon a decision in case of U Tin Maung & Ano. Vs. The King, reported in AIR 1941 Rangoon 202 held that there is nothing in the Code of Criminal Procedure to warrant the conclusion that a criminal proceeding abates on the death of the complainant. The learned Single Judge further observed that once the proceeding is instituted, the condition of the real aggrieved person being alive till the decision of the trial, has not been imposed for continuing the trial. A similar issue whether a proceeding would come to an end on the death of the complainant was also a subject for consideration before the Division Bench of Jammu & Kashmir High Court in case of Ali Dar Vs. Mohd. Sharif and Others (Supra). In the aforesaid case, the complaint was filed under Sections 447, 427 and 506 of the Indian Penal Code. The Magistrate took cognizance only under Sections 447 and 427 of the Indian Penal Code. Soon thereafter complainant Sultan Dar dead. Ali Dar, brother of deceased complainant filed a petition that he be permitted to continue the complaint. However, the learned Magistrate discharged the applicant / accused under Section 259 of old - 8 - Cr.P.C. Section 256 of Code, 1973 (Cr.P.C.) is a new version of Section 259 of Cr.P.C. of old Code of 1908, with some minor alterations. The complainant’s brother, Ali Dar, who had proposed to be added as complainant, moved the High Court, being aggrieved by the order of the Magistrate discharging the accused. The case came for hearing before learned Single Judge. However, the learned Single Judge, noticing divergence of opinion on the point, referred the issue to Division Bench. The Division Bench observed that where a person is dead, there can be no question of his keeping away or not appearing before a court. The person, who is no more, cannot exercise any volition one way or the other in deciding to go to court or keeping himself away from it. The court held 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 of the death of the complainant. In case of Helen C. Pinheiro & Ors (Supra) reported in 2000 Cri.L.J. 1622, a complaint was filed under Section 138 of the Negotiable Instrument Act, by Michael Pinheiro. The respondents were acquitted on contest by Magistrate, against which an application for leave to appeal was filed in High Court on 05.08.1988. Soon thereafter, original complainant Michael Pinheiro died on 26.08.1998. The legal heirs filed an application for bringing them on record, which was allowed. It would be useful to quote relevant extract of paragraph 11 and paragraph 12: “11. . . . . Section 256, Criminal Procedure Code - 9 - confers discretion on the Magistrate to proceed with the trial in the absence or death of the complainant. Where the complainant is represented by pleader / officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, he is empowered to dispense with attendance and proceed with the case. The same analogy in principle has to be extended in a case where the complainant has died after the final disposal of the criminal case ending in acquittal and after filing leave to appeal and where the legal heirs of the complainant on account of the death of the complainant wish to prosecute the remedy of leave to appeal against acquittal. 12. We have to bear in mind that the concept of locus standi has undergone considerable change and the well settled principle in criminal law is that any person can set the law in motion. Moreover sub-section (2) of S. 256, Criminal Procedure Code was introduced with a purpose that due to the death of a complainant the proceedings do not come to an end automatically but discretion in the matter is given to the Magistrate which has to be exercised in terms of S. 256, Criminal Procedure Code. In an application for leave to appeal personal presence of the deceased appellant is not required. Moreover, even though there is provision contained in S. 394, Criminal Procedure Code for abatement of appeal in case of death of the accused, there is no provision of abatement of the case on the death of the complainant.” Coming back to the instant case, I find that in the beginning cognizance was taken in this case under Sections 376 / 511 of the Indian Penal Code. The accused being aggrieved moved this Court - 10 - under Section 482 of the Cr.P.C. This Court by order dated 13.07.2004 quashed the order taking cognizance under Sections 376 / 511 of the Indian Penal Code and remanded the matter for fresh consideration. In the meantime, the complainant died on 09.03.2004. On the very next date, the complainant’s husband Darshan Thakur (opposite party no.- 2) filed a petition that he be allowed to do Pairvi in place of his wife, the original complainant, who has died. Surprisingly, neither the husband of the complainant pressed the application nor the court took up the petition of permitting the husband of the complainant to continue the complaint or to do Pairvi in place of his deceased wife, the original complainant. It appears that Hazri was regularly filed on behalf of the complainant’s husband, who had sought permission to continue the complaint. On the contrary, the accused was absent on 10.09.2004, 29.09.2004, 04.11.2004, 07.12.2004 and 07.01.2005 and filed petitions under Section 317 of Cr.P.C. on various dates. Some of such dates were 02.04.2005, 13.04.2005, 16.07.2005, 27.09.2005, 21.10.2005, 30.11.2005, 20.01.2006, 25.02.2006, 30.03.2006, 12.05.2006 and 13.06.2006. Nonetheless, the petitioner filed an application for discharge / acquittal under Section 256 of the Cr.P.C. on 11.02.2005 on the ground of absence of complainant. The aforesaid application was rejected on 15.06.2005 on the ground that Darshan Thakur, husband of the complainant is ready to contest the case on her behalf. Furthermore, substance of accusation was stated in terms of Section 251 of Cr.P.C. to the accused / petitioner. Two witnesses - 11 - P.W.1 Ramdeo Thakur and P.W.2 Birendra Thakur were examined and cross-examined. P.W.1 was examined and cross-examined on 02.09.2005 and 27.09.2005, whereas P.W.2 was examined and cross- examined on 21.10.2005 and 30.11.2005. However, no witness was examined by the complainant after 30.11.2005 till 22.06.2006, on which date this Court had already stayed the further proceedings in the court below. From the facts of the case, two broad circumstances feature. Firstly; though the husband of the deceased complainant filed a complaint for being allowed to continue to do Pairvi on 26.03.2004, the same was neither pressed, nor the court took up that petition for hearing. Strangely enough, still the trial proceeded and two witnesses were also examined, post explanation of accusation to the accused / petitioner, under Section 251 of Cr.P.C. Section 256 of Cr.P.C. states that after issuance of summons, if the complainant does not appear, the Magistrate shall acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. In the instant case, as the complainant had died, there was no question of complainant either appearing or remaining present in the instant case. The husband of the complainant immediately filed a petition for permission to continue the complaint. The prosecution should have pressed the application and the court too ought to have taken up the petition for substitution immediately without any delay, after noticing the party concerned depending upon the stage of the case. For instance, if the complainant dies during enquiry under - 12 - Section 202 Cr.P.C., prior to cognizance and issuance of summons under Section 204 of Cr.P.C., the court need not hear the person arrayed as an accused, as they would not be having locus standi at that stage. It is, thereupon, the Magistrate to decide its Judicial discretion in the facts of this case, whether to allow or reject such application. In the back drop of ratio laid down in cases noticed above, a criminal proceeding ipso facto would not come to an end on the death of the complainant, as it is not a crime only against a particular person or a group, but against the society at large. In other words, criminal proceeding legally instituted, unlike civil proceeding would not abate on the death of the complainant, where cause of action is personal, as such, if upon death of a complainant, if it’s proposed heirs come forward to continue the complaint, the same may be ordinarily allowed, unless there is habitual failure to file Hazri or sufficient cause is not shown for delay in filing the petition seeking permission to contest the case or allowing such permission would be abuse of process of court or the same would not serve the ends of justice. We have just noticed that the Hon’ble Apex Court, in case of S. Rama Krishna (Supra) reported in AIR 2008 SC 2066, has observed that it is obligatory on the part of the person proposing to contest the complaint, in place of deceased complainant, to press his application for substitution. It would be relevant to quote paragraph 8, which reads as under: “The matter remained pending for more than five years. It was obligatory on the part of the respondents to press their application for substitution. They did not file attendance of their witnesses. The case was fixed - 13 - for hearing.” In view, the scheme of Section 256 of Cr.P.C., it would be equally obligatory on the part of the court to dispose of such application, even if the complainant is negligent or otherwise over looks to press the same. Such approach would give necessary directions to the proceeding, besides saving court’s time as well. In the instant case, the petition dated 26.03.2004 filed by the husband of the complainant to contest the complaint has remained all along un-pressed. Neither the proposed heir pressed the substitution petition nor did the court take up the same. Despite such serious legal lacunas, the case proceeded and two witnesses were examined. It is relevant to state that after examination of the 2nd witness in November, 2005, no other witness has been examined. More so, the complainant’s husband curiously enough, did not choose to examine himself and case has remained pending for months for examination of any further witness. In my view, the continuance of such proceeding was totally contrary to the scheme and object of Section 256 of the Cr.P.C., as there was no substitution of the complainant nor any permission was granted to complainant’s husband to contest the case. Furthermore, without a specific order to continue the complaint under section 256 of Cr.P.C., continuance of complaint in absence of substituted complainant would be bad in law. Besides this, it would appear from the complaint petition that apart from complainant, there is no eye witness to the occurrence, save and except that some persons saw - 14 - petitioner fleeing away from near the alleged place of occurrence. Furthermore, the case in hand is under Sections 323 and 354 of the I.P.C. and are summons triable and has remained pending since seven years in total, and six years since the death of complainant. In the facts of this case, no useful purpose would be served in directing the court to now dispose of the petition dated 26.03.2004 filed by the complainant’s husband to pursue the case after six years. Despite order dated 15.06.2005, passed by the learned Magistrate rejecting the petition under Section 256 of the Cr.P.C. of the petitioner, for acquittal, still opposite party no.2 did not press his petition seeking permission or order of the court to pursue the complaint in place of his deceased wife nor did the court pass any specific order one way or the other, either allowing or disallowing the prayer of petitioner. As such, in my view, the continuance of the criminal prosecution in absence of any specific order by the court permitting opposite party no.2, the husband of the deceased complainant, to pursue the complaint, is without jurisdiction. In the facts of this case, the accused/petitioner is entitled to acquittal in terms of Section 256 of the Cr.P.C. In the result, the impugned order dated 15.06.2005 passed in Tr. No. 1856 of 2005 is set aside. Accordingly, this application is allowed. A.F.R. Uday/ (Samarendra Pratap Singh, J.)