Full Judgment Text
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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5,15,000/- had already been withdrawn by appellant No.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.