JUDGMENT Poonam Srivastava, J.
1. Heard Sri B.B. Jauhari, learned counsel for the applicant and learned A.G.A for the State.
2. Inherent power of this Court has been invoked challenging the proceedings in criminal case No. 3674 of 2004. Ram Ratan V. Dev Nath Gupta and Ors., under Sections 420, 467, 468, 471, 406 I.P.C. Police Station Sadar Bazar. District Shahjahanpur and also order dated 4.8.2005 passed by Additional Chief Judicial Magistrate, Shahjahanpur summoning the applicants.
3. The brief facts of the case are that one Sri Ram Ratan Gupta moved an application under Section 156(3) Cr PC. and an order was passed on 28.2.2003 for registration of the first information report and to investigate the matter. in pursuance to the order of the Magistrate, the police investigated and submitted a final report stating therein that no case is made out against the accused on 19.4.2003. A protest petition was filed by the complainant Ram Ratan Gupta but the proceedings on the basis of protest petition was being considerably lingered as such Sri Ram Ratan Gupta approached this Court for an expeditious disposal of the protest petition A direction was given by this Court on 5.10.2004 to the Chief Judicial Magistrate. Shahjahanpur to decide the protest petition within a period of three months. Thereafter the case was registered as complaint case by the Additional Chief Judicial Magistrate on 13.1.2005. The statement of the complainant was recorded under Section 200 Cr.PC on 20.1 2005 Sri Ram Ratan Gupta died on 8 5.2005 and after his death the statement of witnesses under Section 200 and 202 Cr.PC was recorded only on 22.6.2005. The statement under Section 200 and 202 Cr.PC is annexed as Annexure-6 to the affidavit. A perusal of the statement of PW-1 Suresh Chandra Gupta shows that he has mentioned that Ram Ratan Gupta is dead. Alter the statement of the witnesses the applicants were summoned vide order dated 4.8.2005 which is under challenge in this application.
4. It is emphatically argued by counsel for the applicants that since the complainant is dead and offences for which the applicants have been summoned are cognizable offences and that charge has not been framed, therefore on the death of the complainant the proceedings of the complaint are liable to be dropped. The summoning order has been challenged on the ground that after the death of the complainant, the provisions of Section 302 Cr.P.C. will come into play because no permission was sought from the Chief Judicial Magistrate for conducting the prosecution after the death of the complainant. In the circumstances, the entire proceedings in the complaint case are liable to be quashed. In support of this contention, reliance has been placed on two decisions of the Apex Court, Ashwin Nanubhai Vyas v. State of Maharashtra A.I.R. 1967 S.C. 983, This case deals with the offences under Section 493 and 496 I. P.C. and what happens on the death of the aggrieved person after filing of the complaint. The Apex Court dealt the matter relating to a matrimonial offence, as such I do not find any support to the argument advanced by the counsel lor the applicant. Reliance has also been placed on another decision, Jimmy Jahangir Madan v. Bolly Cariyappa Hindley (D) by legal representatives 2005 (1) ACR 478 (S.C.) In this case the Supreme Court has dealt with question as to whether the prosecution could be conducted by a power of attorney executed by the heirs of the complainant after his death and the court can continue with the prosecution; Supreme Court answered in negative. This is not the fact in the present case where the heirs of the complainant have executed a power of attorney on the basis of which the prosecution is being conducted. In the circumstances, I feel that this decision also has no applicability to the facts of the present case, on the contrary, perusal of the observations of the Apex Court in the case of Jimmy Jahangir Madan (Supra) shows that Supreme Court was of the view that since an accused can abstain from the court during the proceedings alter getting his personal appearance dispensed with under Section 205 Cr.P.C. and appearance through pleader is sufficient, likewise under Section 302 Cr.P.C. a person either by making an application himself or instead of taking steps personally, a party can be represented through a pleader.
5. The next submission on behalf of the applicants is that since the stage of Section 244 Cr.P.C. has not yet arrived as such the provisions of Section 245(2) Cr.PC. will not come into play. Learned A.G..A. has placed reliance on the provisions of Section 249 Cr.P.C. with corresponds to Section 259 of the Old Code, 1898. Section 249 Cr.P.C. gives a discretion to the Magistrate to compound or discharge the accused in absence of the complainant but this can not be said to be mandatory under the old Code. The word complainant' was used under Section 252 Cr.P.C. which corresponds to the new Section 244 Cr.P.C. The word 'complainant' has been substituted by word prosecution' therefore' the contention raised by learned counsel for the applicants challenging the summoning order merely because the complainant died after his statement was recorded under Section 200 Cr.P.C. can not be accepted. Section 256 Cr.P.C. is another provision which has been taken into consideration in the instant case. Section 256 Cr. P.C. is quoted below:-
Non-appearance or death of complaint.-(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 he 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 he, apply also to cases where the non-appearance of the complainant is due to his death.
6. It is thus evident that the death of the complainant does not ipso facto put an end to a criminal prosecution.
Actio personalis moritur cum persona:- Death of complainant does not terminate a criminal prosecution. The maxim action personalis moritur cum persona of Section 306 of Succession Act, 1925 does not apply to criminal prosecutions
7. There is no provisions of abatement of inquiries and trials in absence of the complainant although it provides abatement of appeal or trial on the death of the accused, therefore, what happens on the death of the complainant, in a case started on a complaint has to be inferred generally from the provisions of the Code.
8. In the instant case, I am also conscious of the fact that the protest petition" was filed after submission of final report on 19.4.2003 but the Magistrate failed to record the statement until a direction was given on 5.10.2004 by this Court and thereafter the protest petition was registered on 13.1.2005 as a complaint case. The complainant recorded his statement on 20.1.2005, died on 8.5.2005 and thereafter the statement of other witnesses PW-1 and PW-2 were recorded only on 22.6.2005. Thus the complaint can not be dismissed on the death of the complainant specially where the other persons are represented by him
9. In the circumstances, merely because the complainant is dead, the complaint can not be dismissed outright Admittedly the complainant is being represented by a pleader and it is for the Magistrate to decide whether the attendance of the complainant is necessary, it is discretion of the Magistrate to dispense with his attendance and proceed in the case. It is only in such cases where the complainant has failed to,appear without any justifiable reason and the Presiding Officer is of the opinion that the allegations made in the complaint can not be established on account of absence of the complainant, the complaint can be rejected for want of complainant In the instant case, the complainant is dead and it has already been noticed that the presence of. the complainant is not mandatory' and the proceedings can not be quashed in exercise of inherent powers only because the complainant is dead. This Court in exercise of jurisdiction under Section 482 Cr.P.C. can not prejudice the fate of the case immediately after the summons have been issued to the accused. I am of the considered opinion that the proceedings can not be quashed only for the reason that the complainant is dead.
10. In the circumstances, this application lacks merit and is accordingly rejected.