DEATH OF COMPLAINANT S. 256 CRPC
Facts:
Criminal complaint was filed by Complainant. The complaint was dismissed by the Magistrate vide order holding that prima facie case under Sections 420, 467, 468, 120B and 201 read with 34 of Code was not made out against the Accused. A criminal revision before the Additional Sessions Judge was dismissed. criminal misc. petition against the said order was filed in the High Court. The High Court issued notice in the criminal misc. petition. After issuance of notice the Petitioner died. An application was filed by the legal heirs praying them to be substituted in place of the Petitioner. The application was opposed by the Appellants. The High Court vide its order allowed the said application and permitted the legal representatives to come on record for prosecuting the criminal misc. petition. Hence, present appeal.
Held, while dismissing the appeal:
(i) Analogous provision to Section 256 of Code 1973 was contained in Section 247 of Code of Criminal Procedure, 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 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 was not necessary or mandatory that after death of complainant the complaint was to be rejected, in exercise of the power under proviso to Section 256(1), the Magistrate can proceed with the complaint. More so, the present was a case where offence was alleged under Sections 420, 467, 468, 471, 120B and 201 read with 34 of Code for which procedure for trial of summons-case was not applicable and there was no provision in Chapter XIX “Trial of warrant-cases by Magistrates” containing a provision that in the event of death of complainant the complaint was to be rejected. The Magistrate under Section 249 has power to discharge a case where the complainant was absent. The discharge under Section 249, however, was 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 complainant in a warrant case the complaint was to be rejected, the provision would have indicated any such intention which was clearly absent. [9]
(ii) High Court did not commit any error in allowing the legal heirs of the complainant to prosecute the criminal petition before the High Court. No error in the order of the High Court. [15]
Chand Devi Daga and Ors. vs. Manju K. Humatani and Ors. (03.11.2025 - SC) : MANU/SC/1380/2017