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PETITIONER: ASHWIN NANUBHAI VYAS

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ANR.

DATE OF JUDGMENT: 10/10/1966

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SIKRI, S.M. DAYAL, RAGHUBAR

CITATION:  1967 AIR  983            1967 SCR  (1) 807

ACT: Code  of  Criminal Procedure (5 of 1898), ss. 198  and  495- Inquiry  under Chapter XVIII requiring complaint  by  person aggreived-Death     of     complainant     after      filing complaint-Effect-Power  to  substitute  another  prosecution agency.

HEADNOTE: During  the  inquiry  under  Chapter  XVIII  in  respect  of offences requiring a complaint by the person aggrieved,  the complaint  died after the complaint had been filed under  S. 198  Cr.   P.C.  The application  for  substitution  of  the complainant  was resisted by the accused--appellant, on  the ground   that  only  the  aggrieved  person  could  be   the complainant  and on  the complaint’s death, the  complainant must  be  treated as abated.  The  magistrate  rejected  the objection,and  the High Court dismissed  a  revision;against it.  In appeal to this Court. HELD : The objection must be rejected. Section 198 Cr.  P.C. creates a bar which has to be  removed before   cognisance  is  taken.  Once  the  bar  is  removed because the proper person has filed a complaint, the section works  itself out.  If any other restriction was also  there the  Code would have said so.  Not having said so, one  must treat the section as fulfilled and worked out. [811 D-E] Unless the Code itself said what was 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 was always available. [812 D-E] Case law discussed.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal No.  268, of 1964- 11  I I Appeal  by special leave from the judgment and order  dated’ August  25,  1964  of  the Bombay  High  Court  in  Criminal Revision.  Application No. 333 of 1964. N.   N. Keswani for the. appellant. K.   L. Hathi and R. H. Dhebar, for respondent No. 1.

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K.   Rajendra Chaudhuri and K. R. Chaudhuri, for respondent No. 2. The Judgment of the Court was delivered by Hidayatullah,  J. In this appeal, by special leave,  against the  judgment and order of the High Court of Bombay,  August 25,  1965, the appellant Ashwin Nanubhai Vyas is an  accused before  the  Presidency Magistrate’s 4th Court  at  Girgaon, Bombay.  The case was started on the complaint under s. 198, Code of Criminal 694 In the circumstances, the answer returned by the High  Court to  the  two questions referred to it has to be held  to  be incorrect.   Both the questions have to be answered  against the  assessee and in favour of the Commissioner  of  Income- tax,  so that the answer returned by the High Court  to  the two  questions is set aside, the first question is  answered in  the  affirmative, and the second in the  negative.   The appeal  is accordingly allowed with costs in this  Court  as well as in the High Court. R.K.P.S.                                              Appeal Allowed. 695