Full Judgment Text
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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