Case Note & Summary
The appeal arose from an order of the Bombay High Court rejecting a revision against a Magistrate's decision to continue proceedings after the death of the complainant. The complainant, Kusum Vithal Abhyankar, filed a complaint on November 1, 1963 under Section 198 of the Code of Criminal Procedure, 1898 against the appellant Ashwin Nanubhai Vyas for offences under Sections 417, 493 and 496 of the Indian Penal Code. She alleged a sham marriage, abandonment, and causing abortion. After her complaint was filed, she was examined by the Magistrate and the accused was summoned. She died on November 29, 1963. Her mother, as respondent No.2, applied to be substituted as complainant. The Magistrate allowed the substitution by order dated April 3, 1964, holding that the proceedings did not abate. The accused filed a revision in the Bombay High Court, which dismissed it on August 25, 1964. The appellant then appealed to the Supreme Court by special leave. The Supreme Court framed the question whether the proceedings ipso facto came to an end on the death of the complainant or could be continued. The Court examined the scheme of the Code of Criminal Procedure, particularly Section 198 which bars cognizance of certain offences including those under Sections 493 to 496 IPC except upon a complaint by some person aggrieved. It held that Section 198 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. There is no provision in the Code or in Chapter XVIII about consequences if the complainant remains absent at a subsequent hearing. Unlike Sections 247 and 259 which apply to trial of summons and warrant cases and provide for acquittal or discharge on complainant's absence, Chapter XVIII governing committal proceedings has no such provision, indicating a deliberate departure and an intention that the Magistrate should proceed with the inquiry. The Court also held that the Magistrate's order was not a substitution of a new complainant but allowing the mother to act as complainant to continue the prosecution, which is authorised under Section 495 CrPC, empowering courts to authorise any person to conduct prosecution. The Court distinguished cases cited by the appellant. Ultimately, the Supreme Court dismissed the appeal and upheld the continuation of the prosecution.
Headnote
A) Criminal Procedure - Cognizance of Offences - Bar under Section 198 CrPC - Code of Criminal Procedure, 1898, Section 198 - Section 198 creates a bar which has to be removed before cognizance is taken; once a proper complaint by the aggrieved person is filed, the bar is removed and the section works itself out; no requirement of continued presence of the complainant - Held that death of complainant after filing complaint does not abate proceedings. B) Criminal Procedure - Committal Proceedings - Absence of Complainant - Code of Criminal Procedure, 1898, Chapter XVIII, Sections 208, 247, 259 - Unlike trial of summons and warrant cases, no provision for acquittal or discharge on complainant's absence; hence inquiry must continue - Held that Magistrate should proceed with inquiry despite complainant's death. C) Criminal Procedure - Conduct of Prosecution - Power to Authorise Any Person - Code of Criminal Procedure, 1898, Section 495 - Court empowered to authorise any person to conduct prosecution; includes mother of deceased complainant - Held that substitution of complainant as prosecution agency is permissible.
Issue of Consideration
Whether proceedings under Chapter XVIII of the Code of Criminal Procedure, 1898 relating to offences under Sections 493 and 496 of the Indian Penal Code, 1860 abate upon the death of the complainant after the complaint has been filed under Section 198 CrPC; whether the court has power to permit another person to continue the prosecution under Section 495 CrPC.
Final Decision
Appeal dismissed. The Supreme Court held that the proceedings did not abate on the death of the complainant and the Magistrate had the power under Section 495 CrPC to allow the mother to continue as complainant. The order of the Bombay High Court was upheld.
Law Points
- Legal points not extracted
- Once a complaint by the aggrieved person is filed under Section 198 CrPC
- the bar to cognizance is removed and the section works itself out
- no continuing requirement of complainant's presence
- in committal proceedings under Chapter XVIII absence or death of complainant does not terminate proceedings
- court has power under Section 495 CrPC to authorise any person including mother of deceased complainant to conduct prosecution
