A legal heir may continue a deceased complainant’s private defamation prosecution with the Magistrate’s permission.

Imtiaz Zahur Ahmed Qureshi filed a private complaint against the Petitioner under Sections 499 and 500 of the Indian Penal Code, 1860, alleging that she had made defamatory statements against him in complaints and communications addressed to the police and other authorities.

The Magistrate issued process against the Petitioner.

During the trial, the original complainant died, following which his son, the Respondent, applied to be brought on record and to continue the prosecution.

The Metropolitan Magistrate, 69th Court, Mazgaon, allowed the application by order dated 31 August 2023.

The Petitioner challenged that order before the Bombay High Court under its writ jurisdiction.

Whether, upon the death of the original complainant in a private complaint for defamation under Sections 499 and 500 of the IPC, his legal heir could be permitted to continue the prosecution?

Whether the Respondent’s application to be brought on record could be treated as an application under Section 302 of the CrPC, notwithstanding that it did not expressly specify that provision?

Whether the Respondent qualified as an “aggrieved person” under Section 199 of the CrPC, and whether that issue required determination at the stage of substitution?

The Court applied Sections 256(2) and 302 of the Code of Criminal Procedure, 1973.

Section 302 empowers a Magistrate conducting an inquiry or trial to permit a person other than the specified prosecuting authorities to conduct the prosecution, either personally or through a pleader.

The Court relied on Ashwin Nanubhai Vyas v. State of Maharashtra, which recognised the Magistrate’s power to permit a relative to continue a prosecution; Jimmy Jahangir Madan v. Bolly Cariyappa Hindley, which accepted that an heir may seek permission under Section 302 to continue the prosecution; and Balasaheb K. Thackeray v. Venkat @ Babru, followed in Chand Devi Daga v. Manju K. Humatani, which held that the death of a complainant does not automatically require dismissal of a private complaint and that the legal heir may seek permission to continue it.

The Court also noted that whether the legal heir satisfies the “aggrieved person” requirement under Section 199 is a triable issue.

The Court held that the legal position was settled that the death of the original complainant did not, by itself, terminate a private criminal complaint.

Reading Sections 256 and 302 of the CrPC together, the Magistrate had jurisdiction to permit the complainant’s legal heir to continue the prosecution.

The Respondent’s application disclosed the complainant’s death and was accompanied by the death certificate and proof of the proposed complainant’s identity; therefore, in substance, it could be treated as an application seeking permission under Section 302, even though that provision was not expressly mentioned.

The Court further held that the question whether the Respondent was an “aggrieved person” under Section 199 of the CrPC was a matter for trial and could be raised by the Petitioner before the Trial Court, but it did not invalidate the order permitting continuation of the complaint.

The Respondent’s application was validly treated as such a request, and the Magistrate committed no error in allowing him to be brought on record.

The Petitioner’s challenge was dismissed, the impugned order dated 31 August 2023 was upheld, and the Rule was discharged.

The Petitioner remained entitled to contest at trial whether the Respondent satisfied the requirement of being an “aggrieved person” under Section 199 of the CrPC.