Ashwin Nanubhai Vyas Vs. State of
Maharashtra & ANR  INSC 210 (10 October 1966)
10/10/1966 HIDAYATULLAH, M.
CITATION: 1967 AIR 983 1967 SCR (1) 807
Code of Criminal Procedure (5 of 1898), ss.
198 and 495- Inquiry under Chapter XVIII requiring complaint by person
aggreived-Death of complainant after filing complaint-Effect-Power to
substitute another prosecution agency.
During the inquiry under Chapter XVIII in
respect of offences requiring a person aggrieved, the complainant died after
the complaint had been field under s. 198 Cr. P.C.
The application for substitution of the
complaint was resisted by the accused- appllant, on the ground that only the
aggreived person could be the complaint and on the complaint's death , the
complaint must be treated as abated.
The Magistrate rejected the objection , and
the High Court HELD : The objection must be rejected.
Section 198 Cr. P.C. creates a bar which has
to be removed before cognisance is taken. Once the bar is removed because the
proper person has filed a complaint, the section works itself out. If any other
restriction was also there the Code would have said so. ' Not having said so,
one must treat the section as fulfilled and worked out. [811 D-E] Unless the
Code itself said what was to happen, the power of the Court to substitute
another prosecution agency (subject to such restrictions as may be found) under
s. 495 of the Code was always available. (812 D-E) Case law discussed.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 268 of 1964.
Appeal by special leave from the judgment and
order dated' August 25, 1964 of the Bombay High Court in Criminal Revision.
Application No. 333 of 1964.
N. N. Keswani,if or the appellant.
K. L. Hathi andrr. H. Dhebar, for respondent
K. Rajendra Chaudhuri and K. R. Choudhuri,
for respondent No. 2.
The Judgment of the Court was delivered by
Hidayatullah, J. In this appeal, by special leave, against the judgment and
order of the High Court of Bombay, August 25, 1965, the appellant Ashwin Nanubhai Vyas is an accused before the Presidency Magistrate's 4th Court at
Girgaon, Bombay. The case was started on the complaint under S. 198, Code of
Criminal 808 Procedure of one Kusum Vithal Abhyankar, who charged him with
offences under ss. 417, 493 and 496 of the Indian Penal Code. Kusum's complaint
was that Vyas went through a sham marriage with her, before a person who posed
as an Officer from the office .of the Registrar for Marriages.
Subsequently, Vyas abandoned her and married
another. On being questioned Vyas told her ,(Kusum) that he had never married
her, as the whole affair was a sham. Kusum alleged that she had become pregnant
as a result of the cohabitation but in view of her serious heart ailment Vyas
took her to a clinic where under medical advice and on certificate .granted by
Vyas an abortion was caused to save Kusum's life.
The complaint was filed on November 1, 1963 and Kusum was examined by the Presidency Magistrate. Vyas was then summoned
to Court. On November 29, Kusum unfortunately died of a heart attack. Kusum's
mother, who is the 2nd respond- ,dent in this appeal, then applied to the Court
for substitution as, a fit and proper complainant in the case.
She expressed her Willingness to act as a
complainant and to continue the proceedings. This application was strongly
resisted by Vyas who contended that the trial of offences under as. 493 and 496
of the Indian Penal Code was governed by s. 198 of the Code of Criminal
Procedure and only the aggrieved person could be the complainant and on Kusum's
death the complaint must be treated as abated. The Presidency Magistrate by his
order, April 3, 1964, rejected the objection and decided to proceed with the
complaint with Kusum's mother as the complainant. Vyas then filed an
application for revision in the High Court at Bombay and by the judgment and
order now impugned his petition for revision was rejected. The question that
arises in this appeal is whether on the death of Kusum the proceedings ipso
facto came to an end or could be continued in the manner ordered by the
The Code of Criminal Procedure provides only
for the death of an accused or an appellant but does not expressly provide for
the death of a complainant. The Code also does not provide for the abatement of
inquiries and trials although it provides for the abatement of appeals on the
death of the accused, in respect of appeals under ss. 411 A(2) and 417 and on
the death of an appellant in all appeals except an appeal from a sentence of
fine. Therefore, what happens on the death of a complainant in a case started
on a complaint has to be inferred generally from the provisions of the Code.
The Code by Chapter XV, which is to be found
in Part VI (Proceedings in Prosecutions), provides for the jurisdiction of a
criminal court in inquiries and trials. This Chapter is divided into two
Parts-A (Place of Inquiry of Trial) and B (Conditions requisite for initiation
Part B consists of as. 190 809 to 199B.
Section 190 lays down, inter alia, that any Presidency Magistrate may take
cognizance of any offence upon receiving a complaint 'of fact which constitutes
such offence. Sections 195 to 199B, however, place certain restrictions upon
the power of the Chief Presidency Magistrate and other courts to take
cognizance of cases.
One such restriction is to be found in s.
198. It provides :
" 198. Prosecution for breach of
contract, defamation and offences against marriage.
No Court shall take cognizance of an offence
falling under Chapter XIX or Chapter XXI of the Indian Penal Code or under
sections 493 to 496 (both inclusive) of the same Code, except upon a complaint
made by some person aggrieved by such offence:
Provided that, where the person so aggrieved
is a woman who, according to the customs and manners of the country, ought not
to be compelled to appear in public, or where such person is under the age of
eighteen years or is an idiot or lunatic, or is from sickness or infirmity
unable to make a complaint, some other person may, with the leave of the Court,
make a complaint on his or her behalf :
Provided further that The complaint of Kusum
was filed to remove the bar contained in this section although for the offence
under s. 417 no such bar existed. The offences under ss. 493 (a man by decit
causing a woman not lawfully married to him to believe that she is lawfully
married to him and to cohabit with him in that belief) and 496 (a preson with
fraudulent intention going through the ceremony of being married, knowing that
he is not thereby lawfully married) are non-cognizable, not compoundable and
exclusively friable by Court of Session.
They are serious offences, being punishable
with imprisonment extending to 10 and 7 years respectively. The Presidency
Magistrate, was not trying the case but only inquiring into it with a view to
its committal to the Court of Session if the facts justified a committal.
During this inquiry Kusum died. We have to determine what is the effect of the
death of a complainant on an inquiry under Chapter XVIII in respect of offences
requiring a complaint by the person aggrieved, after the complaint has been
Mr. Keswani for Vyas, in support of the
abatement of the case, relied upon the analogy of s. 431 under which appeals
abate and ss. 247 and 259 under which on the complainant remaining
M17Sup.C.I./66-7 810 absent, the court can acquit or discharge the accused.
These analogies do not avail him because they
provide for special situations. Inquiries and trials before the court are of
several kinds. Section 2.47 occurs in Chapter XX which deals with the trial of
summons cases by a Magistrate and s. 259 in Chapter XXI which deals with trial
of warrant cases before Magistrates. Under the former, if summon is issued on a
complaint and the complainant on any day remains absent from the court unless
it decides to proceed with the trial, must acquit the accused. This can only
happen in the trial of cases, which are punishable with imprisonment of less
than one year. This not being the trial of a summons case but a committal
inquiry, s. 247 neither applies nor can it furnish any valid analogy.
Similarly, s. 259, which occurs in the Chapter on the trial of warrant cases,
that is to say, cases triable by a Magistrate and punishable with imprisonment
exceeding one year can furnish no analogy.
Under s. 259, if the offence being tried as a
warrant case is compoundable or is not cognizable the Magistrate may discharge
the accused before the charge is framed if the complainant remains absent. Once
again this section cannot apply because the Presidency Magistrate was not
trying the case under Chapter XXI.
This case was being heard under Chapter XVIII
which divides committal cases into two classes (a) those commenced on a police
report and (b) other cases. The first kind is tried under the procedure laid
down in s. 207A. With that procedure we are not concerned. The other cases are
tried under the procedure as laid down in the other provisions of Chapter
XVIII. Section 208 of this Chapter provides that in any proceeding instituted
otherwise than on police report the Magistrate shall "when the accused
appears or is brought before him, proceed to hear the complainant (if any) and
take in manner hereinafter provided all such evidence as may be produced in
support of the prosecution or on behalf of the accused, or as may be called for
by the Magistrate." The Magistrate then hears evidence for the prosecution
unless he makes an order of commitment and after recording the evidence and
examining the accused (if necessary) frames a charge. He may, after hearing
further evidence, which the accused may wish to produce (unless for reasons to
be recorded, the Magistrate deems it unnecessary to do so) either discharge the
accused cancelling the charge or commit him to stand his trial before the Court
of Session. There is no provision about the acquittal or discharge of the
accused on the failure of the complainant to attend the court. This is not an
omission but a deliberate departure from the Chapters on the trial of summons
and warrant cases.
In such trials, on the absence of the
complainant, the accused is either acquitted or discharged. The intention
appears to be that the Magistrate should proceed with the inquiry because had
it not been so intended, the 811 Code would have said what would happen if the
complainant remains absent.
Mr. Keswani, however, contends that S. 198
provides that the cognizance of the case can only be taken on the complaint of
a person aggrieved and the only exception to this general rule is where the
complainant is a woman, who according to the customs and manners of the
country, ought not to be compelled to appear in public, or where such person is
under the age of eighteen years or is an idiot or lunatic, or is from sickness
or infirmity unable to make a complaint. He contends that what applies to the
initiation of the proceeding must also apply to the continuance of the
proceeding. He submits that if cognizance could not be taken unless a complaint
was made in the manner provided in the section, the court cannot proceed with
the inquiry unless the same condition continues to exist. In other words,
because the section insists on a complaint of a person aggrieved, Mr. Keswani
contends that continued presence of the person aggrieved throughout the trial
is also necessary to keep the court invested with its jurisdiction except in
the circumstances mentioned in the proviso and summarised above. We do not
agree. The section 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. If any other restriction was also there the Code
would have said so. Not having said so, one must treat the section as fulfilled
and worked out. There is nothing in the Code or in Chapter XVIII which says
what, if any, consequence would follow if the complainant remains absent at any
subsequent hearing after filing the complaint. In this respect Chapter XVIII is
distinctly dissimilar to the Chapters dealing with the trial of summons and
warrant cases where it is specifically provided what consequence follows on the
absence of the complainant.
Mr. Keswani contends that the Presidency
Magistrate has made a "substitution" of a new complainant and there is
nothing in the Code which warrants the substitution of one complainant for
another. It is true that the Presidency Magistrate has used the word
"substitute" but that is not the effect of the order. What the
Presidency Magistrate has done is to allow the mother to act as the complainant
to continue the prosecution. This power was undoubtedly possessed by the
Presidency Magistrate because of s. 495 of the Code by which courts are
empowered (with some exceptions) to authorise the conduct of prosecution by any
person. The words 'any person' would indubitably include the mother of the
complainant in a case such as this.
Section 198 itself contemplates that a
complaint may be made by a person other than the person aggrieved and there
seems to us no valid reason why in such a serious case we should hold that the
death of the complainant puts an end to the prosecution.
812 In support of his contention Mr. Keswani
has cited some cases of the High Courts in which on the death of the
complainant the prosecution was held to have abated. Chief among them are
Ishwardas v. Emperor, (1) Ramanand v. Crown (2) and Labhu v. Crown (3). The
first of these cases was a prosecution for defamation and the second a trial
for an offence under s. 323, Indian Penal Code. The third followed the second.
The first two cases here mentioned were overruled by the Lahore High Court in
Hazara Singh v.
Crown(4) wherein it was laid down that such
cases do not necessarily abate. Mr. Keswani also relied upon several cases
which arose under s. 417(3) and 476 B of the Code of Criminal Procedure in
which appeals were held to have abated. We need not refer to these cases
because they arose under different circumstances and were certainly not
inquiries with a view to committal under Chapter XVIII of the Code. Mr. Hathi,
who appeared on behalf of the State of Maharashtra, drew our attention to many
later cases in which it has been held (dissenting from the cases relied upon by
Mr. Keswani) that a criminal complaint does not necessarily abate on the death
of the complainant even in those cases where the making of the complaint by the
person aggrieved is made a condition precedent by the Code. We need not analyse
those cases because, in our opinion, unless the Code itself says what is to
happen, the power of the court to substitute another prosecution agency
(subject to such restrictions as may be found) under s. 495 of the Code of
Criminal Procedure is always available. Reference may, however, be made to the
following: Emperor v. Nurmohammed,(5) Emperor v. Mauj Din,(6) U Tin Maung and
another V. The King, (7) Mohammed Azam v. Emperor (8) and In re Ramasamier(9).
None of the cases cited either for the one side or the other directly arose
under s. 198 first part in a committal proceeding.
The later view is distinctly in favour of
allowing the prosecution to continue except in those cases where the Code it
sled says that on the absence of the complainant the accused must be either
acquitted or discharged. The present is not one of those cases and in our judgment
the Presidency Magistrate was right in proceeding with the inquiry by allowing
the mother to carry on the prosecution, and under s. 495 the mother may
continue the prosecution herself or through a pleader. We see no reason why we
should be astute to find a lacunas in the procedural law by which the trial of
such important cases would be stultified by the death of a complainant when all
that the s. 198 requires is the removal of the bar. The appeal fails and it
will be dismissed.
(1)7 Cr.L.J. 290. 40 I.C. 1008.
(3) 52 I.C. 797. (4) I.L.R. 2 Lah. 27.
(5) 8 Cr.L.J. 190. (6) A.I.R. 1924 Lah. 72-4
(7) A.I.R. 1941 Rang. 202.
(8) A.I.R. 1926 Bom. 178.
(9) A.I.R.'16 Cr. L.J. 713.