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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 person aggrieved, the complainant died after  the complaint had been field under s. 198  Cr.   P.C. The  application  for  substitution  of  the  complaint  was resisted  by the accused- appllant, on the ground that  only the  aggreived  person  could be the complaint  and  on  the complaint’s death , the complaint must be treated as abated. The Magistrate rejected the objection , and the High 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. 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,if or the appellant. K.   L. Hathi andrr.  H. Dhebar, for respondent No. 1. K.   Rajendra Chaudhuri and K. R. Choudhuri, for respondent No. 2.

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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 808 Procedure  of  one Kusum Vithal Abhyankar, who  charged  him with offences under ss. 417, 493 and 496 of the Indian Penal Code.   Kusum’s complaint was that Vyas went through a  sham marriage  with her, before a person who posed as an  Officer from   the   office  .of  the   Registrar   for   Marriages. Subsequently,  Vyas abandoned her and married  another.   On being  questioned Vyas told her ,(Kusum) that he  had  never married her, as the whole affair was a sham.  Kusum  alleged that she had become pregnant as a result of the cohabitation but in view of her serious heart ailment Vyas took her to  a clinic     where    under    medical    advice    and     on certificate .granted by Vyas an abortion was caused to  save Kusum’s life. The  complaint was filed on November 1, 1963 and  Kusum  was examined  by  the  Presidency  Magistrate.   Vyas  was  then summoned to Court.  On November 29, Kusum unfortunately died of a heart attack.  Kusum’s mother, who is the 2nd  respond- ,dent  in  this  appeal,  then  applied  to  the  Court  for substitution  as, a fit and proper complainant in the  case. She expressed her Willingness to act as a complainant and to continue  the  proceedings.  This application  was  strongly resisted  by Vyas who contended that the trial  of  offences under as. 493 and 496 of the Indian Penal Code was  governed by  s.  198 of the Code of Criminal Procedure and  only  the aggrieved  person  could be the complainant and  on  Kusum’s death  the  complaint  must  be  treated  as  abated.    The Presidency Magistrate by his order, April 3, 1964,  rejected the objection and decided to proceed with the complaint with Kusum’s  mother  as  the complainant.  Vyas  then  filed  an application for revision in the High Court at Bombay and  by the  judgment  and  order  now  impugned  his  petition  for revision  was  rejected.  The question that arises  in  this appeal is whether on the death of Kusum the proceedings ipso facto  came  to an end or could be continued in  the  manner ordered by the Presidency Magistrate. 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 complainant.  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 ss. 411 A(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. The  Code  by Chapter XV, which is to be found  in  Part  VI (Proceedings in Prosecutions), provides for the jurisdiction of  a criminal court in inquiries and trials.  This  Chapter is divided into two Parts-A (Place of Inquiry of Trial)  and B  (Conditions  requisite for  initiation  of  Proceedings). Part B consists of as. 190 809 to  199B.   Section  190 lays down,  inter  alia,  that  any Presidency  Magistrate  may take cognizance of  any  offence upon  receiving a complaint ’of fact which constitutes  such offence.   Sections  195  to 199B,  however,  place  certain

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restrictions   upon  the  power  of  the  Chief   Presidency Magistrate  and  other courts to take cognizance  of  cases. One such restriction is to be found in s. 198.  It  provides : "  198.  Prosecution for breach of contract, defamation  and offences against marriage. No  Court shall take cognizance of an offence falling  under Chapter XIX or Chapter XXI of the Indian Penal Code or under sections  493  to  496 (both inclusive) of  the  same  Code, except  upon  a complaint made by some person  aggrieved  by such offence: Provided that, where the person so aggrieved is a woman who, according  to the customs and manners of the country,  ought not  to  be  compelled to appear in public,  or  where  such person is under the age of eighteen years or is an idiot  or lunatic,  or is from sickness or infirmity unable to make  a complaint,  some  other person may, with the  leave  of  the Court, make a complaint on his or her behalf : Provided further that 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 decit 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 preson 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. Mr.  Keswani  for Vyas, in 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 M17Sup.C.I./66-7 810 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 2.47 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  summon  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

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case under Chapter XXI. 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 proceed  with  the inquiry because had it not been so intended, the 811 Code  would have said what would happen if  the  complainant remains absent. Mr. Keswani, however, contends that S. 198 provides that the cognizance of the case can only be taken on the complaint of a  person aggrieved and the only exception to  this  general rule  is where the complainant is a woman, who according  to the  customs  and manners of the country, ought  not  to  be compelled to appear in public, or where such person is under the  age of eighteen years or is an idiot or lunatic, or  is from  sickness or infirmity unable to make a complaint.   He contends  that  what  applies  to  the  initiation  of   the proceeding  must  also  apply  to  the  continuance  of  the proceeding.   He  submits that if cognizance  could  not  be taken unless a complaint was made in the manner provided  in the  section,  the  court cannot proceed  with  the  inquiry unless  the  same condition continues to  exist.   In  other words,  because  the  section insists on a  complaint  of  a person  aggrieved,  Mr.  Keswani  contends  that   continued presence  of  the person aggrieved throughout the  trial  is also   necessary  to  keep  the  court  invested  with   its jurisdiction  except in the circumstances mentioned  in  the proviso and summarised above.  We do not agree.  The section creates  a bar which has to be removed before cognizance  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.  There is nothing in the Code  or in Chapter XVIII which says what, if any, consequence  would follow  if the complainant remains absent at any  subsequent hearing after filing the complaint.  In this respect Chapter XVIII is distinctly dissimilar to the Chapters dealing  with the  trial  of  summons  and  warrant  cases  where  it   is specifically  provided  what  consequence  follows  on   the

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absence of the complainant. Mr. Keswani contends that the Presidency Magistrate has 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  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 s. 495  of the   Code  by  which  courts  are  empowered   (with   some exceptions)  to authorise the conduct of 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. 812 In  support  of his contention Mr. Keswani  has  cited  some cases  of  the  High Courts in which on  the  death  of  the complainant the prosecution was held to have abated.   Chief among  them are Ishwardas v. Emperor, (1) Ramanand v.  Crown (2) and Labhu v. Crown (3).  The first of these cases was  a prosecution  for  defamation and the second a trial  for  an offence under s. 323, Indian Penal Code.  The third followed the  second.   The  first  two  cases  here  mentioned  were overruled  by  the  Lahore High Court  in  Hazara  Singh  v. Crown(4)  wherein  it was laid down that such cases  do  not necessarily  abate.   Mr. Keswani also relied  upon  several cases  which arose under s. 417(3) and 476 B of the Code  of Criminal  Procedure  in  which appeals  were  held  to  have abated.  We need not refer to these cases because they arose under   different  circumstances  and  were  certainly   not inquiries  with a view to committal under Chapter  XVIII  of the Code.  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 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.  Reference may, however, be made to the following:  Emperor  v.  Nurmohammed,(5)  Emperor  v.   Mauj Din,(6)  U Tin Maung and another V. The King,  (7)  Mohammed Azam  v. Emperor (8) and In re Ramasamier(9).  None  of  the cases  cited either for the one side or the  other  directly arose  under  s. 198 first part in a  committal  proceeding. The  later  view  is distinctly in favour  of  allowing  the prosecution to continue except in those cases where the Code it  sled  says that on the absence of  the  complainant  the accused must be either acquitted or discharged.  The present is not one of those cases and in our judgment 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.  We see no reason why we should be astute to  find a lacunas in the procedural law by which the  trial of such important cases would be stultified by the death  of a  complainant  when  all that the s. 198  requires  is  the

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removal  of  the  bar.   The appeal fails  and  it  will  be dismissed. Y.   P. Appeal dismissed. (1)7 Cr.L.J. 290.   40 I.C. 1008. (3)  52 I.C. 797.   (4) I.L.R. 2 Lah. 27. (5)  8 Cr.L.J. 190. (6) A.I.R. 1924 Lah. 72-4 Lah. 7. (7)  A.I.R. 1941 Rang. 202. (8) A.I.R. 1926 Bom. 178. (9)  A.I.R.’16 Cr.  L.J. 713. 813