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 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