CHAND DEVI DAGA & ORS. versus MANJU K. HUMATANI & ORS.
[2017] 11 S.C.R. 923, Supreme Court of India, 2017
Outcome: Dismissed (Dismissed)
Segment: Ratio
[2017] 11 S.C.R. 923 
CHAND DEVI DAGA & ORS. 
v. 
MANJU K. HUMATANI & ORS. 
(Criminal Appeal No. 1860 of2017) 
A 
NOVEMBER 03, 2017 
B 
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.] . 
Code of Criminal Procedure, 1973 - Chapter XIX and XX -
Death of complainant - Substitution of legal representatives of t~e 
complainant for prosecuting the complaint - Propriety of - Held: 
C 
There is no provision in Chapter XIX "Trial of warrant cases by 
Magistrates" that in the event of death of complainant, the complaint 
is to be rejected - The Magistrate u/s.249 has the power to discharge 
a case where the complainant is absent, however, discharge is hedged 
with a condition that "the offence may be lawfully compounded or 
is not a cognizable offence" - Had the Code of 197J intended that D 
in case of death of complainant in a warrant case the complaint is 
. to be rejected, the provision would have indicated any such intention 
which is clearly absent - No error c~mmitted by High Court in 
allowing the legal heirs of the complainant to prosecute .in- Criminal 
Misc. Petition. 
Dismissing the appeal, the Court 
HELD: Section 256 of Code of Criminal Procedure, 1973 
E 
is contained in Chapter XX with the heading 'Trial of summons-
cases by Magistrates". Analogous provision to Section 
256 of 
Code 1973 was contained in Section 247 of Criminal Procedure 
F 
Code, 1898. In Section 247 the proviso was added in 1955 saying 
that "where the Magistrate is of the opinion that personal 
attendance is
not necessary, he may dispense with such 
attendance". The said proviso took out the rigour of the 
original rule arid whole thing was left to the discretion of the 
Court. Sub-section (1) of Section 256 contains 
the 
above 
G 
proviso in the similar manner. Thus, even in case of trial of 
summons-case it is not necessary or mandatory that after death 
of complainant the complaint is to be rejected, iri exercise of the 
power under proviso to Section 256(1), the Magistrate can 
923 
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924 
SUPREME COURT REPORTS 
[2017] I 1 S.C.R. 
A proceed with the complaint. More so, the present is a case where 
offence was alleged under Sections 420, 467, 468, 471, 1208 and 
201 read with 34 IPC for which procedure for trial of summons-
case was not applicable and there is no provision in Chapter XIX 
"Trial of warrant- cases by Magistrates" containing a provision 
B that in the event of death of complainant the complaint is to be 
rejected. 
The Magistrate under Section 249 has power to 
discharge a case where the 
complainant is absent. The 
discharge under Section 249, however, is hedged with condition 
"the offence may be lawfully compounded or is not a cognizable 
offence". Had the Code 1973 intended that in case of death of 
C complainant in a warrant case the complaint is to be rejected, the 
provision would have indicated any such intention which is clearly 
absent. [Para 9) [927-C-F] 
Ashwin Nanubhai Vyas v. State of Maharashtra 
AIR 1967 SCC 983 : [1967] SCR 807 ; BalasahebK. 
D 
Thackeray & Am: v. Venkat @ Babru (2006) 5 SCC 
530 : [2006) 3 Suppl. SCR 301 ; Jimmy Jahangir Madan 
v. Bolly Caiyappa Hindley (dead) By Lrs. (2004) 12 
SCC 509 : [2004) Suppl. SCR 955 - referred to~ 
E 
F 
G 
H 
Case Law Reference 
[1967) SCR 807 
referred to 
[2006) 3 Suppl. SCR 301 
. referred to 
[2004) 5 Suppl. SCR 955 
referred to 
Para 10 
Para 13 
Para 14 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal 
No.1860of2017. 
From the Judgment and Order dated 02.02.2017 of the
High Court 
of Chhattisgarh at Bilaspur in I.A. No.I of 2016 in Cr. M.P. No.216 of 
2016. 
Garvesh Kabra, Mrs.Pooja Kabra, Ms.Nikita Kabra, Advs for 
the Appellants. 
Kaustubh Shukla, Rahul Shyam Bhandari, Deepayan Manda!, 
Konark Tyagi, Advs for the Respondents.
CHAND DEVI DAGA & ORS. v. MANJU K. HUMATANI 
925 
&ORS. 
The Judgment of the Court was delivered by 
A 
ASHOK BHUSHAN, J. 1. This appeal has been filed against 
the judgment of the High Court of Chhatisgarh allowing an IA filed by 
the legal representatives of the petitioner in Criminal Misc. PetitiOn. The 
respondents aggrieved by the order of the High Court dated 02.02.20 I 7 
~~~~~ 
B 
2. The brief facts necessary for deciding this appeal are: 
Smt. Chandra Narayan Das whose legal representatives are 
.the respondent Nos. I to 7 had filed a complaint against the appellants 
alleging offence under Sections 420, 467, 468, 471, I20B, 201and34 
IPC. The husband of Smt. Chandra Narayan Das was a lease holder of C 
a shop situated in the Civic. Centre, Bhilai Steel Plant, Chhatisgarh. Shop 
No.12 was allowed in the name of the husband of appellant No. I in the 
year i959. Although, husband of the appellant No.I, a Member of 
Parliament had died in I 952 itself, it was alleged by the complainant that 
certain agreements were .got executed by legal heii-s of Member of D 
Parliament which constituted commission of offence. The complaint was 
dismissed by the Magistrate vide order dated 26.02.20I5 holding that 
primafacie case under Sections 420, 467, 468, I20B and 201/34 IPC is 
not made out against the accused. 
3. Smt. Chandra Narayan Das filed a criminal revision before the 
E 
Additional Sessions Judge, Durg which was dismissed by VIIIth 
Additional Sessions Judge, Durg vide
judgment dated 20. I I .20I.5. Criminal 
Misc. Petition against the said order dated 20.11.2015 was filed in the 
High Court of Chhatisgarh by Smt. Chandra Narayan Das. The High 
Court on 18.02.2016 issued notice in the Criminal Misc. Petition. After 
issuance of notice the petitioner, Smt. Chandra Narayan Das died on 
F 
02.04.2016. An application was filed by the legal heirs of Smt. Chandra 
Narayan Das praying them to be substituted in place of the petitioner. 
The application was opposed by the appellants. The High Court vide its 
order dated 02.02.20I 7 allowed the said application and permitted the -
legal representatives of Smt. Chandra Narayan Das to come on record 
G 
for prosecuting the Criminal Misc. Petition. Aggrieved by the said 
judgment, the appellants have come up in this appeal.· 
4. Learned counsel for the appellants submi~s that in the Code of 
Criminal Procedure, 1973(hereinafter referred to as "Code 1973") there 
is no provision which permits legal representatives of the complainant to 
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SUPREME COURT REPORTS 
[2017] 11 S.C.R. 
A be substituted for prosecuting the complaint. It is submitted that the present 
is a case where no summons were issued to the appellants since the 
complaint was rejected by the Magistrate and a criminal revision 
B 
c 
· challenging the said order has also been dismissed. It is submitted that 
the High Court committed error in permitting the legal representatives 
of complainant to be brought on record for prosecuting the case. 
5. Learned counsel for the respondents refuting the submission of 
the learned counsel for the appellants contends that rejection of complaint 
and order of the Sessions Judge dismissing the criminal revision were 
under challenge before the High Court on the ground that primafacie 
offence was disclosed in the complaint and courts below committed 
error in rejecting the complaint. The offence having been committed by 
the appellants, the High Court has every jurisdiction to permit the legal 
representatives to prosecute the matter in the event of death of original 
complainant. It is submitted that Code 1973 does not contain any provision 
that on death of complainant, the complaint cannot be allowed to be 
D prosecuted by any other person including the legal representatives. 
6. We have considered the submissions of the learned counsel for 
the parties and perused the records. 
7. There is no dispute regarding facts and events in the present 
case. The original complainant died during the
pendency of the Criminal 
E Misc. Petition before the High Court which was filed challenging the 
order of the Sessions Judge rejecting the criminal revision against the 
order of Magistrate dismissing the complaint. 
8. Section 256 of Code of Criminal Procedure, 1973 is contained 
in Chapter XX with the heading "Trial of summons-cases by 
F 
Magistrates". Section 256 on which reliance has been placed provides 
G 
H 
as follows: 
"Section 256. Non- appearance or death of complainant.-W 
ff 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:
CHAND DEVI DAGA & ORS. v. MANJU K. HUMATANI 
927 
& ORS. [ASHOK BHUSHAN, J.] 
Provided that where the complainant is represented by a 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, 
B 
apply also to cases where the non-appearance of the 
complainant is due to his death. " 
9. Analogous provision to Section 256 of Code 1973 was contained 
in Section 247 of Criminal Procedure Code, 1898. In Section 247 the 
proviso was added in 1955 saying that "where the Magistrate is of the c 
opinion that personal attendance is not necessary, he may dispense with 
such attendance". The said proviso took out the rigour of the original 
rule and whole thing was left to the discretion of the Court. Sub-section 
(1) of Section 256 contains the above proviso in the similar manner. 
Thus, even in case of trial of summons-case it•is not necessary of 
mandatory that after death of complainant the complaint is to be rejected, 
D 
in exercise of the power under proviso to Section 256(1 ), the Magistrate 
can proceed with the complaint. More so, the present is a case where 
offence was alleged under Sections 420, 467, 468, 471, 120B and 201 
read with 34 IPC for which procedure for trial of summons-case was 
not applicable and there is no provision
in Chapter XIX "Trial of warrant-
E 
cases by Magistrates" containing a provision that in the event of death 
of complainant the complaint is to be rejected. The Magistrate under 
Section 249 has power to discharge a case where the complainant is 
absent. The discharge under Section 249, however, is hedged with 
condition "the offence may be lawfully compounded or is not a cognizable 
offence". Had the Code 1973 intended that in case of death of F 
complainant in a warrant case the complaint is to be rejected, the provision 
would have indicated any such intention which is clearly absent. 
1 Q. In this context a reference is made tojudgment of this Court 
in Ashwin Nanubhai Vyas Vs. State of Maharashtra, AIR 1967 SCC 
983. In the said case this Court had occasion to consider the provisions 
G 
of Criminal Procedure Code, 1898. The complainant had filed a complaint 
against the appellants. The complaint was filed under Sections 498 and 
496 IPC. Accused was summoned. However, during the pendency of 
the complaint, the complainant died. The complainant's mother applied 
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SUPREME COURT REPORTS 
[2017] 11 S.C.R. 
A for substituting her to act as complainant and continue the proceedings. 
B. 
c 
D 
E 
F 
G 
H 
Magistrate permitted the mother of complainant to pursue the complaint 
against which revision was filed before the High Court which was 
dismissed. Aggrieved by the order of the High Court the appellant had 
come up before this Court. In the above context this Court considered 
the pari materia provisions of the Criminal Procedure Code, 1898 with 
regard to Section 247 (now Section 256) it was specifically held that 
said provision does not furnish any valid analogy. In paragraph 4 of the 
judgment foHowing was observed: 
"4 Mr. Keswani for l'yas, in support of the abatement of the 
case, relied upon the analogy of Section 431 under which 
appeals abate and Sections 247 and 259 under which on the 
complainant remaining absent, the court can acquit or 
discharge the accused. These analogies do not avail him 
because they provide for special situations. Inquiries and 
trials before the court are of several kinds. 
Section 247 
occurs in Chapter XX which deals with the trial of summons 
cases by a Magistrate and Section 259 in Chapter XX! which 
deals with trial of warrant cases before Magistrates. Under 
the former, if summons is issued on a complaint and the 
complainant on any day remains absent jivm the court, unless 
it decides to pmceed with the trial, must acquit the accused. 
This can only happen in the trial of cases, which
are punishable 
with imprisonment of less than one year. This not being the 
trial of a summons case but a committal inquiry, Section 247 
neither applies nor can it furnish any valid analogy. Similarly, 
Section 259, which occurs in the Chapter on the trial of 
warrant cases, that is to say cases triable by a Magistrate 
and punishable with imprisonment exceeding one year can 
furnish no analogy. Under Section 259, if the offence being 
tried as a warrant case is compoundable or is not cognizable 
the Magistrate may discharge the accused before the charge 
is framed if the complainant remains absent. Once again this 
section cannot apply because the Presidency Magistrate was 
not trying the case under Chapter XX!." 
l t. This Court further had occasion to consider Section 495 of 
Code 1898 (now Section 302 of Criminal Procedure Code) and this Court 
laid down in paragraph 7 as follows:
CHAND DEVI DAGA & ORS. v. MANJU K. HUMATANI 
929 
& ORS. [ASHOK BHUSHAN; J.] 
"7 Mr. Keswani contend5 that the Presidency Magistrate has 
A 
made a "substitution" of a new complainant and there is 
nothing in the Code which warrants the substitution of one 
complainant for another. It is true that the Presidency 
Magistrate has used the word "substitute" but that is not the 
effect of the order. What the Presidency Magistrate has done 
B 
is to allow the mother to act as the complainant to continue 
the prosecution. This power was undoubtedly possessed by 
the Presidency Magistrate because of Section 495 of the Code 
by which Courts are empowered (with some ·exceptions) to 
authorise the conduct oj prosecution by any person. The words 
'any person' would indubitably include the mother of the 
complainant in a case such as this. Section 198 itself 
contemplates that a complaint may be made by a person other 
than the person aggrieved and there seems to us no valid 
reason why in such a serious case we should hold that the 
death of the complainant puts an end to the prosecution." 
12. At this stage reference to Section 302 of the Criminal Procedure 
Code is necessary. Section 302 ofthe Criminal Procedure Co_de is 
contained in Chapter XXIV with the heading "General provisions as to 
inquiries and trials". Section 302 relates to permission to conduct 
prosecution which is to the following effect: 
" Section 302. Permission to conduct prosecution 
l. Any Magistrate inquiring
into or trying a case may permit 
the prosecution to be conducted by any person other than 
c 
D 
E 
a police officer below the rank of lnspector; but no person, 
other than the Advocate-General or Government Advocate · p 
or a Public Prosecutor or Assistant Public Prosecutm; 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. 
G 
2. Any person conducting the prosecution may do so personally 
or by a pleader." 
13. This Court had occasion to consider Sections 256 and 302 in 
Balasaheb K. Thackeray & Anr. Vs. Venkat @ Babru, (2006) 5 SCC 
H.
930 
SUPREME COURT REPORTS 
[2017] 11 S.C.R. 
A 530. In the above case complaint was filed under Section 500 read with 
Section 34 IPC. A petition was filed under Section 482 of the Code 1973 
against the order of issue of process in the High Court which was 
dismissed. SLP was filed in this Court in which notice was issued and 
during the pendency of the appeal it was noted that complainant had 
B 
c 
D 
E 
F 
G 
H 
died. It was contended that the complaint be dismissed on the ground 
that complainant is dead. This Court in the above context referred to 
Sections 256 and 302. This Court repelled the argument of the appellant 
that complaint be dismissed on the ground that complainant had died. 
Following was held in paragraphs 3 to 6: 
"3. Learned counsel for the appellants with reference to 
Section 256 of the Code submitted that the complaint was to 
be dismissed on the ground of the death of the complaina,nt. 
As noted above learned counsel for Respondent Is legal heirs 
submitted that the legal heirs of the complainant shall file an 
application for permission to prosecute and, therefore, the 
complaint still survives consideration. 
4. At this juncture it is relevant to take note of what has been 
stated by this Court earlier on the principles applicable. In 
Ashwin Nanubhai Vyas v. State of Maharashtra with reference 
to Section 495 of the Code of Criminal Procedure, 1898 
(hereinafter referred to as "the old Code") it was held that 
the Magistrate had the power to
permit a relative to act as the 
complainant to continue the prosecution. In Jimmy Jahangir 
Madan v. Bolly Cariyappa Hindley after referring to Ashwin 
case it was held that heir of the complainant can be allowed 
to file a petition under Section 302 of the Code to continue 
the prosecution. 
5. Section 302 of the Code reads as under: 
"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 Advocate General or Government 
Advocate or a Public Prosecutor or Assistant Public Prosecutor, 
shall be entitled to do so without such permission:
CHAND DEVI DAGA& ORS. v. MANJU K. HUMATANI 
931 
& ORS. [ASHOK BHUSHAN, J.] 
Provided that no police officer shall be permitted to conduct A 
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." 
B 
6. To bring in application of Section 302 of the Code, permission 
to conduct the prosecution has to be obtained from the Magistrate 
inquiring into or trying a case. The Magistrate is empowered to 
permit the prosecution to be conducted by any person other than 
a police officer below the rank of Inspector; but no person other C 
than the Advocate General or the Government Advocate or a 
. Public Prosecutor or Assistant Public Prosecutor shall be entitled 
to do so without such permission." 
14. Two Judge Bench in Jimnly Jahangir Madan Vs. Bally D 
Caiyappa Hindley (dead) By. Lrs., (2004) 12 SCC 509 referring to 
this Court's judgment in Ashwin Nanubhai Vya'sJ$upra) had held that 
heirs of complainant can continue the prosecutionJ'F'ollowing was held 
in paragraph 5: 
· 
"5. The question as to whether the heirs of the complainant E 
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 \.)ias v. State of Maharashtra 
in which case the Court was dealing with a
case under Section 
495 of the Code of Criminal Procedure, 1898, which is 
F 
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 G 
either herself or through a pleader. Undisputedly, 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 .... " 
H

932 
SUPREME COURT REPORTS 
[2017] 11 S.C.R. 
A 
15. In view of what has been discussed above, we are of the 
view that High Court did not commit any error in allowing the legal heirs 
of the complainant to prosecute the Criminal fylisc. Petition before the 
High Court. We do not find any error in the order of the High Court. The 
appeal is dismissed. 
Ankit Gyan 
Appeal dismissed.