Legal Heirs Can Substitute Complainant In Complaint Cases & Pursue Prosecution Upon His Death: Orissa High Court

"…notwithstanding absence of a specific provision, the statutory intent of the provisions of the Code is not to foreclose the right of a person to continue with the prosecution upon death of the complainant. In other words, it is impliedly acknowledged that the victim of a crime may die but the crime committed against him does not. Nor does the guilt of the offender get washed away only because the victim is no more. On the contrary, the offender would still remain liable to be prosecuted for his deeds and punished, if found guilty."

Brief Facts:

The complainant was residing in a house which was registered in the name of his wife. After the death of his wife, who died intestate, the property devolved upon her children. The children executed a registered general power of attorney in favour of the complainant. However, after some days, the mother of his daughter-in-law (wife of his son Sanjit Kumar Mishra) interfered in the matter and allegedly got him evicted from the house. The complainant registered a complaint against such action.

After conducting inquiry under Section 200 CrPC, the Trial Court took cognizance of the offence under sections 426/506/34 IPC and summons was issued. The eldest son of the complainant, namely, Ranjit Kumar Mishra was cited as a witness. In the meanwhile, the complainant died while under treatment. Subsequently, his eldest son, Ranjit Kumar Mishra filed a petition seeking to be substituted as a complainant expressing his desire to contest the case. The petition for substitution was opposed by the accused persons, who took the plea that they are eligible to be discharged upon death of the complainant.

However, the Court below allowed the petition for substitution by substituting the deceased complainant with Ranjit Kumar Mishra. The accused persons, being aggrieved by such decision of the Trial Court, have preferred the present revision against the order.

Petitioners' Contentions:

Mr. Devashis Panda, counsel for the petitioners, argued that unlike a civil proceeding, the Code of Criminal Procedure does not recognize substitution of a deceased complainant. Referring to the decision of Ashwin Nanubhai Vyas v. State of Maharashtra, he contended that the Code provides only for dismissal of a complaint upon death of an accused but does not expressly provide for continuance of the complaint thereafter.

He submitted that what happens on the death of the complainant, in a case started on a complaint, has to be inferred from the stipulations of the Cr.P.C. Since the Code provides that in the absence of the complainant, the accused must be either acquitted or discharged, the same principle must be applied in the case of death of a complainant.

Respondent's Contentions:

Ms. Agnisikha Ray, counsel for the respondent, relied upon the decision of the Apex Court in the case of Chand Devi Daga v. Manju K. Humatani (2018) to argue that the provision under Section 249 of the Cr.P.C. which provides for discharge of the accused in the absence of the complainant is applicable only when the offence can be "lawfully compounded or is non-cognizable" but not in respect of non-compoundable offences such as the ones Section 426/506 IPC.

She submitted that since the Code is silent as to what would happen in case of death of a complainant in a warrant case, the provision under Section 249 CrPC cannot be made applicable to such cases. Since the original complainant had filed the complaint against the accused persons, the opposite party being the legal heir has got every right to seek continuance of the proceeding upon the death of his father as otherwise, the accused persons would be allowed to go scot-free.

Court's Findings:

The Court noted that cognizance was taken by the Court below of the offences under sections 426/506/34, IPC. In view of the involvement of Section 506 of IPC, the Court observed that the case is to be tried as per procedure laid down for warrant cases. The Court found substantial force in the argument of counsel for the respondent that there is no direct provision analogous to the one under Section 256 of Cr.P.C, which provides for acquittal of accused in case of summons cases, when the complainant is absent in the time of hearing.

Further, the Bench noted that in Balasaheb K. Thackeray & Anr. v. Venkat (2006), it was held that Section 302 CrPC can be invoked to permit the prosecution to be conducted by any person other than a police officer below the rank of inspector; but no person other than the advocate general or the government advocate or a public prosecutor or assistant public prosecutor shall be entitled to do so without such permission of the magistrate. Holding thus, the Apex Court allowed the prayer of the legal heirs of the deceased complainant in the said case to continue with the proceeding by seeking necessary permission from the magistrate.

Following the ratio of Balasaheb (supra), the Supreme Court in the case of Chand Devi Daga (supra) also held that by taking assistance of Section 302 of the Code, the legal heirs can continue the prosecution upon death of the original complainant.

Further, the Court noted the observations made in J.K. International vs. State (Govt. of NCT of Delhi) & Ors. (2001), wherein while interpreting the scope of a private person intending to participate in the conduct of prosecution, the Top Court held,

"The private person who is permitted to conduct prosecution in the Magistrate's Court can engage a counsel to do the needful in the court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or against anyone in whom he is interested he can approach the Magistrate and seek permission to conduct the prosecution by himself. It is open to the court to consider his request. If the court thinks that the cause of justice would be served better by granting such permission the court would generally grant such permission."

The Court clarified that though the said case was instituted on the basis of police report and not from a private complaint as in the case at hand, yet the principle underlying the observations can be adopted in the present case.

Accordingly, the Court concluded that the legal heirs of a complainant can continue the proceeding after his death and to such extent therefore, the magistrate did not commit any error in allowing one of his legal heirs to prosecute the complaint. However, it clarified that the petition filed by the son of the deceased complainant to substitute him must be deemed to be an application for permission to conduct prosecution as per the provisions of Section 302 of the Code and consequently, the impugned order passed in allowing the application must be deemed to have been passed also as per the provision under Section 302 CrPC.

Case Title: Sanjit Kumar Mishra & Ors. v. Ranjit Mishra

Case No.: CRLREV No. 579 of 2011

Judgment Dated: 06^th September 2022

Coram: Sashikanta Mishra, J.

Counsel for the Petitioners: M/s. D. Panda, A.K. Parida, D.P. Dhal & C.R. Panda, Advocates

Counsel for the Respondent: Mr. B.K. Ragada, N. Das & L.N. Patel, Advocates

Citation: 2022 LiveLaw (Ori) 134

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