1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 1669/2010 Shri. Sharad s/o. Ajabrao Wankhede & ors. V/s. Smt. Padmaja w/o Sharad Wankhede ------------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. ------------------------------------------------------------------------------------------------------------------------------- Mr. R. M. Bhandge, counsel for applicant. Mr. D. M. Mahajan, APP for respondent. Coram: A.P. Bhangale, J Dated : 10th June 2011 1. Heard learned counsel for the parties. 2. Learned advocate for the applicants stated that non-applicant (aggrieved person) Smt. Padmaja w/o Sharad Wankhede, died on 06/01/2011. Considering the provisions of the Protection of Women from Domestic Violence Act, 2005, under which the aggrieved person Smt. Padmaja w/o Sharad Wankhede had filed a complaint in respect of alleged Domestic Violence. It is contended by learned advocate for the applicant that considering the maxim “actio personalis moritur cum persona” as referred to the ruling in case of Girijanandini Devi and others, Appellants V/s. Bijendra Narain 2 Choudhary, Respondent, reported in AIR 1967 Supreme Court 1124, the personal claim would not survive. However, this contention is opposed by learned advocate for the impleaded respondents on the ground that they are daughters of the deceased aggrieved person and are entitled to continue the criminal proceedings arising out of the said complaint by late Smt. Padmaja w/o Sharad Wankhede. It may be noted that procedure as contemplated under Protection of Women from Domestic Violence Act, 2005, is applicable in respect of proceedings initiated under Section 12, 18, 19, 20 & 22 of the Act, and offences punishable under Section 31 of the Act. Provisions of the Code of Criminal Procedure 1973, are made generally applicable in the absence of special provisions. It is also specifically mentioned by the legislature that the Court can lay down it’s own procedure for dismissal of an application under Section 12 Sub-section 2 of the Act. Be that as it may, under Section 256 of the Code of Criminal Procedure, 1973, the following is the provisions : - “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 herein before contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the 3 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 may be, apply also to cases where the non- appearance of the complainant due to his death.” 3. In case of non-appearance of the complainant due to his death also the provision in sub-section (1) shall so far as may be made applicable. It may also be noted with reference to ruling in case of Ashwin Nanubhai Vyas, Appellant V/s. The State of Maharashtra and another, Respondents, reported in AIR 1967 Supreme Court 983, in case of death of the aggrieved person after filing of complainant, Court can not substitute a new complaint however, it is observed in paragraph no. 8 of the said ruling thus; “Mr. Hathi, who appeared on behalf of the State of Maharashtra, drew our attention to many later cases in which it has been held (dissenting from the cases relied upon by Mr. Keswani) that a criminal complaint does not necessarily abate on the death of the complainant even in those cases where the making of the complaint by the person aggrieved is made a condition precedent by the Code. We need not analyse those cases 4 because, in our opinion, unless the Code itself says what is to happen, the power of the Court to substitute another prosecution agency (subject to such restrictions as may be found) under S. 495 of the Code of Criminal Procedure is always available.” It was concluded that the Presidency Magistrate was right in proceeding with the inquiry by allowing the mother to carry on the prosecution, and under S. 495 the mother may continue the prosecution herself or through a pleader.” 4. Therefore daughters of complainant (expired) are required to be heard in view of the ruling in case of Ashwin Nanubhai Vyas, Appellant V/s. The State of Maharashtra and another, Respondents, reported in AIR 1967 Supreme Court 983, it is necessary to direct learned Magistrate concerned to hear the applicants as well as respondents added (daughters of the aggrieved ex-complainant) and to pass an appropriate order according to law after hearing the parties. Parties will appear before the Magistrate on 18 th July 2011 at 11.00 am. 5. This application is disposed of. JUDGE Punde