Court No. - 58
Case :- APPLICATION U/S 482 No. - 17531 of 2006 Applicant :- Mahadev Prasad Gupta And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rahul Sripat,Amit Daga Counsel for Opposite Party :- Govt. Advocate
Hon'ble Ashutosh Srivastava,J.
The application under Section 482 Cr.P.C. has been preferred for quashing the entire proceedings of Criminal Complaint Case No.519 of 2006 (Madan Prasad Gupta Vs. Mahadev Prasad Gupta & others) under Sections 323, 332, 186, 384, 504 & 506 IPC, Police Station Ghoorpur, District Allahabad, stated to be pending in the Court of Judicial Magistrate-IV, Allahabad.
The brief facts giving rise to the above criminal misc. application are that the opposite party no.2 filed a criminal complaint against the applicants alleging an offence punishable under Sections 323, 504, 506, 384, 409, 500, 186 and 332 IPC, before the learned Chief Judicial Magistrate-IV, Allahabad on 24.08.2006. It was alleged that the complainant was working as Sanskrit Lecturer in Shri Ishwardeen Chhedi Lal Inter College, Jasra, Allahabad since 08.07.1970. He was posted as officiating Principal of the aforesaid college under the orders of this Court and his signatures were also attested by the concerned District Inspector of Schools, Allahabad on 12.08.2006. It was alleged that on his becoming the officiating Principal the accused persons being the Manager and Vice President of the college became inimical to him and on 22.09.2005 indulged in marpit with him in presence of several students of the college. It was further alleged that on 04.01.2005 the applicant no.1 gave a cheque of Rs.10,000/- in the name of the Principal of the college and thereafter he forced the complainant to sign at the back of the cheque and thereafter snatched the cheque from the complainant. It was also alleged by the complainant that on 16.12.2006 at about 12:00 Noon, both the applicants further committed marpit with the complainant and also advanced threats to him. It is submitted by learned counsel for the applicants that the learned magistrate without applying his judicial mind and in a mechanical manner took cognizance of the complaint and after taking evidence under sections 200 and 202 Cr.P.C. summoned both the applicants vide order dated 10.11.2006.
Learned counsel for the applicants further submits that the alleged incident is stated to have taken place in September, 2005, January, 2006 and lastly in February, 2006 but the complaint was instituted on 24.08.2006 after a lapse of more than six months from the date of the alleged incident and no explanation, whatsoever, has been given for lodging the complaint after expiry of more than six months. He further submits that it is a case of no injury inasmuch as the complainant did not get himself medically examined by any medical officer nor has filed any medical examination report to establish the injuries suffered by him. He further submits that there is not even a single independent public witness or employee of the college who has supported the allegations of the complainant. He further submits that the applicant no.1 at the time of institution of the complaint was 81 years old and the applicant no.2 is brother in law of the applicant no.1 and both the accused applicants were holding a Chair in the Executive Committee of the College. It is submitted that the complaint is a counterblast to the action taken by the applicant no.1 by placing the complainant under suspension vide order dated 15.02.2006 having found him to be indulged in several illegal activities contrary to the interest of the college. He further submits that in fact the complaint was lodged after the applicant no.1 is stated to have retired.
In view of the above, learned counsel for the applicants submits that the complaint lodged by the opposite party no.2 is false and the entire story set up in the complaint is concocted and does not have any substance and as such, the prosecution of the applicants pursuant to the complaint is liable to be quashed.
Learned counsel for the applicants has further pointed out that the complainant/opposite party no.2 died on 18.01.2009 and the applicant no.1 has also expired on 21.01.2011.
Although no documentary evidence has been filed to substantiate the averments that the applicant no.1 and the complainant both are dead but since a statement has been made at the bar by the learned counsel for the applicants, the same is being accepted. The record reveals that a counter affidavit has been filed by the opposite party no.2 on 27.02.2007 but learned counsel representing the opposite party no.2 has not appeared before the Court at the time of arguments.
Learned counsel for the applicants has drawn the attention of the Court to the provisions of Section 256 Cr.P.C., which relates to non-appearance or death of complainant to submit that since the complainant has already died, the complaint cannot be proceeded with and the accused is liable to be acquitted. In order to test the submission of learned counsel for the applicants the provisions of Section 256 Cr.P.C. is to be examined and the same is being reproduced below:-
"256. Non- appearance or death of complainant.
(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
(2) The provisions of sub- section (1) shall, so far as may be, apply also to cases where the non- appearance of the complainant is due to his death."
A perusal of the provisions of Section 256 Cr.P.C. shows that death of the complainant will not, ipso facto, put an end to the criminal prosecution. The legal maxim "Actio Personalis Moritur cum persona i.e. a personal right of action dies with the person." has no application to criminal prosecution and merely because the complainant is stated to be dead, the complaint cannot be dismissed outright and the accused acquitted. Admittedly, the complaint has been filed through an Advocate and it is for the Magistrate to decide whether the personal attendance of the complainant is necessary or not and may even dispense with the attendance of the complainant and proceed with the case. Even in case of trial of summons case, it is not necessary or mandatory that after the death of complainant, the complaint is to be rejected. In exercise of the power under proviso to Section 256(1) the Magistrate can proceed with the complaint. It is only in such cases, where the complainant has failed to appear without any justifiable reason and the learned Magistrate is of the opinion that the allegations made in the complaint cannot be established on account of absence of the complainant, the complaint can be rejected for absence of the complainant. The argument of learned counsel for the applicants that the complaint has to be dismissed and the applicants are liable to be acquitted on the death of the complainant, cannot be accepted and his hereby rejected.
The Magistrate under Section 249 Cr.P.C. has power to discharge a case where complainant is absent. The discharge under Section 249, however, is hedged with condition that the offence may be lawfully compounded or is not a cognizable offence. Had the 1973 Code of Criminal procedure intended that in a case of death of complainant in a warrant case the complaint is to be rejected, the provisions would have indicated any such intention which is clearly absent.
The provisions of law relied upon by the counsel for the applicants itself lays down that the presence of the complainant is not mandatory and it is left on the discretion of the Magistrate before whom the complaint is said to be pending.
The Hon'ble Apex Court in the case of Chand Devi Daga and others Vs. Manju
K. Humatani and other (2018) 1 SCC 71 had the occasion to consider the import of Section 256 Cr.P.C. and after detailed analysis of the provisions held that it is not necessary or mandatory that after death of the complainant, the complaint is to be rejected in exercise of the power under proviso to Section 256(1) Cr.P.C. and the Magistrate can proceed with the complaint on the death of the complainant even in a case of trial of summons case.
In view of the legal position, the prayer for quashing of the entire proceeding of the complaint case cannot be accepted in exercise of jurisdiction under Section 482 Cr.P.C. However, since the applicant no.1 is stated to be dead, the complaint/prosecution in respect of applicant no.1 shall stand abated. So far as the applicant no.2 is concerned, the present application under Section 482 Cr.P.C lacks merit and is, accordingly, rejected.
Order Date :- 16.12.2021 pks