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CASE NO.: Appeal (crl.)  283 of 2007

PETITIONER: RASHIDA KAMALUDDIN SYED & ANR

RESPONDENT: SHAIKH SAHEBLAL MARDAN (DEAD)THROUGH LRs. & Anr

DATE OF JUDGMENT: 02/03/2007

BENCH: C.K. THAKKER & LOKESHWAR SINGH PANT

JUDGMENT: J U D G M E N T (arising out of S.L.P. (Criminal) No. 474 of 2006)

C.K. THAKKER, J.

       Leave granted.

       The present appeal is filed by the appellants-  original accused against the order passed by the Judicial  Magistrate, First Class (Court No. 7), Pune on August 25,  2004, confirmed by 5th Additional Sessions Judge, Pune  on July 1, 2005 and also confirmed by the High Court of  Bombay on December 15, 2005.         To understand the controversy raised in the appeal,  relevant facts may be stated in brief.         One Shaikh Saheblal Mardan (hereinafter referred  to as ’the complainant’) was resident of Pune.  Appellant- accused No. 1 \026 Smt. Rashida Kamaluddin Syed is his  daughter, and appellant accused-No.2 Kamaluddin K.  Syed is husband of accused No. 1 and son-in-law of the  complainant. It was the case of the complainant that he  was the owner of a bungalow which he sold in May, 1992  through accused No. 2 and deposited the amount of  consideration in Bank.  The accused No. 2 dishonestly  represented to the complainant that he was having some  proposals of land for sale and he would get it at a  cheaper rate if the complainant was interested in such  investment.  It would earn more profit to the  complainant and he would also get exemption from  payment of capital gains.  But the complainant wanted  to go on Haj (Saudi Arabia) for a month on June 1, 1992.   The accused No. 2 again dishonestly represented to the  complainant that he could very well go to tour and the  accused No. 2 would invest the money in suitable and  beneficial proposals.  Relying on such dishonest  representations by accused No. 2, the complainant gave  him five blank signed cheques as also withdrawal slips  so as to enable appellant No. 2 to invest amount in  purchase of property and to pay such amount to  vendors.  It was the case of the complainant that when  he returned from Haj, he found that an amount of Rs.  5,15,000/- had already been withdrawn by appellant No.  2 but no property was purchased in the name of the  complainant. On further inquiry, he found that accused  Nos. 1 and 2 had joined hands and their common  intention was to grab money of the complainant. He  made inquiry to appellant No. 2 but the latter gave  evasive reply.  Moreover, the accused purchased an open

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plot in the joint name of accused No. 1 and complainant  for Rs.2,70,000/-.  Accused No. 1 also sent a notice  through her advocate stating therein that the plot was  purchased by her with her own money.  She also filed a  false complaint on August 28, 1992 against the  complainant and his sons for offences punishable under  Sections 384, 511, 504, 506 read with 34 of Indian Penal  Code (IPC) alleging criminal intimidation and extortion.  The complainant was thus convinced that his daughter  and son-in-law (accused Nos. 1 and 2) had cheated him  and committed criminal breach of trust.  He, therefore,  filed Criminal Complaint No. 605 of 1993 in the Court of  Judicial Magistrate, First Class (A.C. Court), Pune on  March 15, 1993 for offences punishable under Sections  406 and 420 read with 34 IPC.  The Judicial Magistrate,  First Class after recording statement of complainant  issued process under Section 204 of Code of Criminal  Procedure, 1974 (hereinafter referred to as "the Code").   During the pendency of the proceedings, however,  complainant died in November, 1996.         Three sons of deceased-complainant [(i) Shaikh  Shaiuddin, (ii) Shaikh Nuruddin; and (iii) Shaikh  Nizamuddin] made an application (Ex. 21) on January  17, 1997 for permitting them to continue prosecution  against the accused persons.  The learned Magistrate by  an order below Ex. 21 dated May 23, 1999 granted the  application relying upon a decision of this Court in  Ashwin Nanubhai Vyas v. State of Maharashtra, 1967 (1)  SCR 807 : AIR 1967 SC 983 and allowed Shaikh  Sahabuddin \026 respondent No. 1 herein to continue the  prosecution against the accused persons. It appears that  the said order had not been challenged by the accused  and it had attained finality.  Name of respondent No. 1  was accordingly, entered on May 14, 2000.  Prosecution  witnesses were also examined thereafter.  On March 3,  2004, written arguments were submitted by the  appellants-accused praying for their discharge.          On August 4, 2004, an application was made by  the appellants-accused under Section 239 of the Code  for their discharge (Ex.1) contending that no case was  made out against them.  The said application, however,  was rejected by the Trial Court on August 25, 2004  holding that there was a prima facie case against the  accused.  Being aggrieved by the said order, the accused  preferred revision which was also dismissed by the  Sessions Court observing that there was a prima facie  case against the accused for offences punishable under  Sections 406, 420 read with 34 IPC.  A Writ Petition  against the said order met with the same fate, which has  been challenged in the present appeal.         On February 6, 2006, when the matter was placed  for admission hearing, the following order was passed by  this Court;

       "Issue notice returnable within four  weeks confined to the question whether the  legal heirs could have continued with the  complaint."

       Thereafter, on December 4, 2006, the matter was  ordered to be placed for final disposal on a non- miscellaneous day in February, 2007.   That is how the  matter has been placed before us.         Reading of the order dated February 6, 2006,

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extracted hereinabove clearly shows that notice was  confined to the question whether the legal heirs could  have continued with the complaint.         The learned counsel for the appellants submitted  that on the death of complainant on November 19, 1996,  the proceedings came to be abated.  In the  circumstances, the Court should not have granted  prayer of the respondent No. 1 permitting him to  continue the prosecution.  Such an order is illegal and  unlawful.  He also submitted that the application filed by  the accused under Section 239 read with Section 245 of  the Code ought to have been allowed and they ought to  have been discharged.  Unfortunately, however, the  Court committed an error and the application was  rejected.  The said order was confirmed by the revisional  Court as well as by the High Court and all the orders,  therefore, deserve to be set aside.         Learned counsel for the respondents, on the other  hand, supported the order submitting that an order  permitting the first respondent-son to continue  prosecution could not be said to be illegal or contrary to  law.  Since the action was in accordance with law, no  fault can be found against it and the appeal deserves to  be dismissed.  It was further submitted by the learned  counsel for the first respondent that an application was  made by sons of deceased Shaikh Saheblal in January,  1997 which was allowed by the Trial Court in May, 1997  and the first respondent was permitted to continue the  case against the accused.  The said order was never  challenged by the accused and it has become final.  The  name of the first respondent was entered in May, 2000  and even thereafter nothing was done by the appellants.   Witnesses were then examined and an application for  discharge was made as late as in August, 2004 which  was rightly rejected.  Since the application filed by sons  of deceased Shaikh Saheblal was allowed in May, 1997,  there is gross delay and laches on the part of the  appellants in approaching the Court. Even on that  ground, rejection of application of the appellants could  not be said to be improper.  It was further stated that in  application for discharge what was contended by the  accused was that no prima facie case had been made out  against them for offences punishable under Sections 406  and 420 read with 34 IPC. All the Courts held that prima  facie case had been made out.  No grievance was made  against permitting sons to continue the prosecution nor  anything was stated regarding death of original  complainant and the appellants cannot now be allowed  to raise such contention. On all these grounds, a prayer  was made to dismiss the appeal.         In our opinion, the orders passed by the courts  below cannot be said to be illegal, unlawful or contrary  to law.  It is submitted by the learned counsel for the  appellants that the Trial Court was wrong in relying  upon Ashwin Nanubhai.  In peculiar facts and  circumstances of the case and keeping in view the  scheme and relevant provisions of the Code of Criminal  Procedure, 1898 (’old Code’), this Court granted such  permission, but the ratio laid down in that case would  not apply to the case on hand.  In Ashwin Nanubhai, a  complaint was filed under Section 198 of the old Code by  one Kusum for offences punishable under Sections 417,  493 and 496 of IPC. It was the case of Kusum that Vyas  went through a sham marriage with her, before a person  who posed as an Officer from the office of the Registrar

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for Marriages. Subsequently, however, he abandoned her  and married another.  On being questioned, Vyas told  her that he had never married her.  According to Kusum,  she became pregnant as a result of cohabitation, but in  view of her serious ailment, Vyas took her to a clinic  where under medical advice and on certificate granted by  Vyas, an abortion was carried out.  She, therefore, filed a  complaint on November 1, 1963.  Cognizance was taken  by the Court. During the pendency of the case, however,  on November 29, 1963, Kusum died of a heart-attack.   Her mother, therefore, applied to the Court for  substitution as a fit and proper complainant in the case.   She wanted to continue criminal prosecution.  The  application was strongly objected to by Vyas contending  that the trial of offences under Sections 493 and 496 IPC  was governed by Section 198 of the Code and on  Kusum’s death, the complaint should be treated as  abated. The Presidency Magistrate, however, turned  down the objection and decided to proceed with the case  with Kusum’s mother as the complainant.  Revision filed  by Vyas was dimissed by the High Court of Bombay.   Aggrieved accused approached this Court.         Considering the scheme of the Code (old Code) in  the light of allegations levelled against the accused, this  Court held that proceedings initiated by Kusum could be  continued at the instance of her mother.           The Court stated;         "The Code of Criminal Procedure  provides only for the death of an accused or  an appellant but does not expressly provide  for the death of a complaint. The Code also  does not provide for the abatement of  inquiries and trials although it provides for  the abatement of appeals on the death  of the accused, in respect of appeals under  Sections 411A(2) and 417 and on the  death of an appellant in all appeals except an  appeal from a sentence of fine. Therefore,  what happens on the death of a complainant  in a case started on a complaint has to be  inferred generally from the provisions of  the Code".

       Dealing with Section 198 of the old Code, this  Court said; "The complaint of Kusum was filed to remove  the bar contained in this section although for the offence  under s. 417 no such bar existed. The offences under ss.  493 (a man by deceit causing a woman not lawfully  married to him to believe that she is lawfully married to  him and to cohabit with him in that belief) and 496 (a  person with fraudulent intention going through the  ceremony of being married, knowing that he is not  thereby lawfully married) are non-cognizable, not  compoundable and exclusively triable by Court of  Session. They are serious offences, being punishable  with imprisonment extending to 10 and 7 years  respectively. The Presidency Magistrate, was not trying  the case but only inquiring into it with a view to its  committal to the Court of Session if the facts justified a  committal. During this inquiry Kusum died. We have to  determine what is the effect of the death of a  complainant on an inquiry under Chapter XVIII in  respect of offences requiring a complaint by the person  aggrieved, after the complaint has been filed".         It was further stated; "Mr. Keshwani for Vyas, in

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support of the abatement of the case, relied upon the  analogy of s. 431 under which appeals abate and ss. 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 s. 259 in Chapter XXI 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 from the court,  unless it decides to proceed 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, s. 247 neither applies nor can it  furnish any valid analogy.  Similarly, s. 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 s. 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 XXI".         The Court proceeded to state;  "This case was being heard under Chapter  XVIII which divides committal cases into two  classes (a) those commenced on a police  report and (b) other cases. The first kind is  tried under the procedure laid down in s.  207A. With that procedure we are not  concerned. The other cases are tried  under the procedure as laid down in the other  provisions of Chapter XVIII. Section 208 of  this Chapter provides that in any proceeding  instituted otherwise than on police report the  Magistrate shall ’when the accused appears or  is brought before him, proceed to hear the  complainant (if any) and take in manner  hereinafter provided all such evidence as may  be produced in support of the prosecution or  on behalf of the accused, or as may be called  for by the Magistrate.’ The Magistrate then  hears evidence for the prosecution unless he  makes an order of commitment and after  recording the evidence and examining the  accused (if necessary) frames a charge. He  may, after hearing further evidence, which the  accused may wish to produce (unless for  reasons to be recorded, the Magistrate deems  it unnecessary to do so) either discharge the  accused cancelling the charge or commit him  to stand his trial before the Court of Session.  There is no provision about the acquittal or  discharge of the accused on the failure  of the complainant to attend the court. This is  not an omission but a deliberate departure  from the Chapters on the trial of summons  and warrant cases. In such trials, on the  absence of the complainant, the accused is  either acquitted or discharged. The intention  appears to be that the Magistrate should

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proceed with the inquiry because had it not  been so intended, the Code would have said  what would happen if the complainant  remains absent".

       The Court also considered the provisions of Section  495 of the Code (similar to Section 302 of the present  Code) and observed that though Presidency Magistrate  used the word ’substitute’, it was in effect continuation  of prosecution by the mother. The power was  undoubtedly possessed by Presidency Magistrate under  Section 495 of the Code and the Court was empowered  to authorize conduct of prosecution by any person.  The  Court stated;         "\005.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".

       The learned counsel for the appellants submitted  that the ratio laid down in Ashwin Nanubhai would not  apply inasmuch as in that case the Court was concerned  with offences punishable under Sections 493 and 496 of  IPC.  They were then triable by a Court of Session.  In  the instant case, we are concerned with the case  punishable under Sections 406 and 420 of IPC, triable  by a Magistrate of First Class.  It was also stated that the  Court had observed that the offences punishable under  Sections 493 and 496 were serious being punishable  with imprisonment which may extend to ten and seven  years respectively.         In our opinion, the submission has no force and  cannot be accepted.  What was considered by this Court  in Ashwin Nanubhai was whether prosecution could be  continued by any person other than the complainant in  view of bar of taking of cognizance under Section 198 of  the Code.  Considering the scheme and Sections 198 and  495 of the Code, this Court held that such permission  could be granted and a person other than the  complainant could be allowed to prosecute the  complainant.  In the instance case, there is no such bar.   Moreover, necessary permission was granted in the year  1997 and we find no infirmity therein.  So far as offences  under Sections 406 and 420 are concerned, they are also  serious in nature and are punishable with imprisonment  for three years and seven years respectively.         Our attention has also been invited by the learned  counsel for the respondents to a recent case in Jimmy  Jahangir Madan v. Bolly Cariyapa HIndley (dead) by Lrs.,  (2004) 12 SCC 509 : JT 2004 (9) SC 558.  In Jimmy  Jahangir, a complaint was filed by one B against the  accused under Section 138 of the Negotiable  Instruments Act in which cognizance had been taken.   During trial, however, the complainant died leaving  behind her son and daughter who executed General  Power of Attorney in favour of two persons.  The Power- of-Attorney holders filed applications under Section 302  of the Code permitting them to continue the prosecution.   The prayer was contested, but the Magistrate allowed the  application granting permission to continue prosecution.  

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The High Court confirmed the order of the Trial Court  which was challenged by the accused in this Court.         Though this Court allowed the appeal holding that  the courts below were not justified in granting such  permission since it was made by the Power of Attorney, it  was held that a person other than a complainant could  continue prosecution.  The Court, therefore, while  setting aside the orders granted liberty to the heirs of the  complainant to file fresh application under Section 302  of the Code.         Section 302 of the present Code reads thus;         302. Permission to conduct prosecution.\027 (1) Any Magistrate inquiring into or trying a case  may permit the prosecution to be conducted by  any person 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;

       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.

       (2)     Any person conducting the prosecution  may do so personally or by a pleader.   

       The Court also considered Ashwin Nanubhai and  observed; "The question as to whether heirs of the  complainant 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 Vyas v. State of Maharashtra and  Anr., (1967) 1 SCR 807 in which case the  Court was dealing with a case under Section  495 of the Code of Criminal Procedure, 1898,  which is 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  either herself or through a pleader".

       Reference was also made to Balasaheb K.  Thackeray & Anr. v. Venkat @ Babru & Another, (2006) 5  SCC 530 : JT 2006 (7) SC 44, to which one of us (C.K.  Thakker, J.) was a party.  In that case, V filed a  complaint against the accused in the Court of Judicial  Magistrate, First Class for commission of offence  punishable under Section 500 read with 34 IPC.  The  complainant, however, died in 2005 during the pendency  of the proceedings in this Court.  The accused, therefore,  made an application under Section 256 of the Code for  dismissal of the complaint on the ground of death of  complainant.  Legal heirs of the complainant submitted  that they would make an application before the Trial  Court where the case was pending as the accused had

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approached this Court against an interim order and the  proceedings were pending in the Trial Court.         This Court considered the provisions of Section 495  of the old Code and Section 302 of the present Code as  also Ashwin Nanubhai and Jimmy Jahangir and observed  that since the proceedings were pending before the Trial  Court, it was not necessary to express any opinion one  way or the other.  It was observed that if any permission  would be sought to continue prosecution by the legal  heirs of the deceased, the Court would consider the  same in its proper perspective and take an appropriate  decision in accordance with law.         From the above case law, in our opinion, it is clear  that on the death of Shaikh Saheblal, the case did not  abate.  It was, therefore, open to the sons of complainant  to apply for continuation of proceedings against accused  persons.  By granting such prayer, no illegality has been  committed by the courts.         There is an additional reason as to why the order  should not be interfered with at this stage.  As we have  already noted, the complainant died in November, 1996.   Immediately thereafter, sons applied for impleadment  allowing them to continue prosecution against the  accused persons by the application dated January 17,  1997.  The said application was allowed and permission  was granted by an order dated May 23, 1997.  The said  order was never challenged by the appellants and it had  become final.  Name of the first respondent was entered  on May 14, 2000.  Thereafter witnesses were also  examined.  In so far as application dated August 4, 2004  of the accused is concerned, it was under Section 239 of  the Code which provides for discharge of accused.  The  only ground put forward by the accused was that no  prima facie case had been made out against them.  In  the light of above facts also, in our opinion, this is not a  fit case to exercise discretionary power under Article 136  of the Constitution.         Finally, the contention that a civil suit is filed by  the complainant and is pending has also not impressed  us.   If a civil suit is pending, an appropriate order will  be passed by the competent Court.  That, however, does  not mean that if the accused have committed any  offence, jurisdiction of criminal court would be ousted.   Both the proceedings are separate, independent and one  cannot abate or defeat the other.           For the foregoing reasons, we are of the view that  the courts below were right in permitting respondent  No.1 to continue the prosecution by proceeding with the  complaint filed by Shaikh Saheblal.  In taking such  decision, the courts had not committed any error of law  which deserves interference by this Court under Article  136 of the Constitution.          The appeal is, accordingly, dismissed.