K. Thackeray & Anr Vs. Shri Venkat @ Babru & Anr  Insc 377 (5 July 2006)
Pasayat & C.K. Thakker Arijit Pasayat, J.
interesting question as to what is the effect of the death of the complainant
arises for consideration in this case.
the matter was listed for hearing, learned counsel for the appellants submitted
that the respondent no.1, who was the complainant has died and, therefore, the
proceedings initiated on the basis of said complainant do not survive.
counsel for the legal heirs of the complainant submitted that they propose to
continue the proceedings and file an appropriate application thereof.
brief reference to the factual aspects would suffice:
@ Babru (hereinafter referred to as the 'complainant') filed a private
complaint bearing No.R.Crl.C No. 107 of 1994 on 7.9.1994 against the appellant
and four others in the Court of Judicial Magistrate, 1st Class, Sailu, District
Parbhani alleging commission of offence punishable under Section 500 read with
Section 34 of the Indian Penal Code, 1860 (in short 'IPC'). Subsequently, the
complaint against the three reporters was withdrawn and proceedings are
continuing against the appellants i.e. the Editor, Printer and Publisher of a
newspaper "Dainik Samna". The allegation in the complaint was that
the accused persons in furtherance of their common intention had published news
in respect of the complainant in their newspaper published from Aurangabad on various dates.
alleged in the complaint that due to the report, the reputation of the
complainant was tarnished and he was defamed. After hearing arguments learned
Magistrate issued process by order dated 15.9.1994. A petition under Section
482 of the Code of Criminal Procedure, 1973 (in short the 'Code') was filed
before the Bombay High Court, Aurangabad Bench which was dismissed by the
judgment impugned in the appeal. The appellants filed Special Leave Petition
(SLP (Crl.) No.4367 of 2003). After notice, the appeal was admitted on
3.2.2005. When the matter was taken for hearing on 31.5.2006 it was pointed out
that the respondent no.1- complainant had died on 3.8.2005.
counsel for the appellants with reference to Section 256 of the Code submitted
that the complaint was to be dismissed on the ground of the death of the
noted above learned counsel for the respondent no.1's legal heirs submitted
that the legal heirs of the complainant shall file an application for
permission to prosecute and, therefore, the complaint still survives
this juncture it is relevant to take note of what has been stated by this Court
earlier on the principles applicable.
Nanubhai Vyas v. The State of Maharashtra
and Anr. (AIR 1967 SC 983) with reference to Section 495 of the Code of
Criminal Procedure, 1898 (hereinafter referred to as the 'Old Code') it was
held that the Magistrate had the power to permit a relative to act as the
complainant to continue the prosecution. In Jimmy Jahangir Madan v. Bolly Cariyappa
Hindley (dead) by Lrs. (2004 (12) SCC 509) after referring to Ashwin's case
(supra) it was held that heir of the complainant can be allowed to file a
petition under Section 302 of the Code to continue the prosecution.
302 of the Code reads as under:-
to conduct prosecution
inquiring into or trying a case may 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 Government Advocate or a Public
Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without
that no police officer shall be permitted to conduct the prosecution if he has
taken part in the investigation into the offence with respect to which the
accused is being prosecuted.
conducting the prosecution may do so personally or by a pleader." To bring
in application of Section 302 of the Code, permission to conduct prosecution
has to be obtained from the Magistrate inquiring into or trying a case. The
Magistrate is empowered to permit 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.
being the position, if any permission is sought for by the legal heirs of the
deceased complainant to continue prosecution, the same shall be considered in
its perspective by the Court dealing with the matter. It is brought to the
notice that by order dated 13.10.2003 further proceedings before the Magistrate
are stayed. In that background, Mr. Adsure submitted that the application shall
be filed before this Court.
when any application is filed the same shall be dealt with appropriately. Ordered