Kamaluddin Syed & Anr Vs. Shaikh Saheblal Mardan (Dead)Through Lrs. & Anr 
Insc 241 (2 March 2007)
C.K. THAKKER & LOKESHWAR SINGH PANT
(arising out of S.L.P. (Criminal) No. 474 of 2006) C.K. THAKKER, J.
The present appeal is filed by the appellants- original accused against the
order passed by the Judicial Magistrate, First Class (Court No. 7), Pune on August 25, 2004, confirmed by 5th Additional Sessions Judge, Pune on July 1, 2005 and also confirmed by the High Court of Bombay on December 15, 2005.
To understand the controversy raised in the appeal, relevant facts may be
stated in brief.
One Shaikh Saheblal Mardan (hereinafter referred to as 'the complainant')
was resident of Pune. Appellant- accused No. 1 Smt. Rashida Kamaluddin Syed is
his daughter, and appellant accused-No.2 Kamaluddin K.
Syed is husband of accused No. 1 and son-in-law of the complainant. It was
the case of the complainant that he was the owner of a bungalow which he sold
in May, 1992 through accused No. 2 and deposited the amount of consideration in
Bank. The accused No. 2 dishonestly represented to the complainant that he was
having some proposals of land for sale and he would get it at a cheaper rate if
the complainant was interested in such investment. It would earn more profit to
the complainant and he would also get exemption from payment of capital gains.
But the complainant wanted to go on Haj (Saudi Arabia) for a month on June 1, 1992.
The accused No. 2 again dishonestly represented to the complainant that he
could very well go to tour and the accused No. 2 would invest the money in
suitable and beneficial proposals. Relying on such dishonest representations by
accused No. 2, the complainant gave him five blank signed cheques as also
withdrawal slips so as to enable appellant No. 2 to invest amount in purchase
of property and to pay such amount to vendors. It was the case of the
complainant that when he returned from Haj, he found that an amount of Rs.
5,15,000/- had already been withdrawn by appellant No.
2 but no property was purchased in the name of the complainant. On further
inquiry, he found that accused Nos. 1 and 2 had joined hands and their common
intention was to grab money of the complainant. He made inquiry to appellant
No. 2 but the latter gave evasive reply. Moreover, the accused purchased an
open plot in the joint name of accused No. 1 and complainant for Rs.2,70,000/-.
Accused No. 1 also sent a notice through her advocate stating therein that the
plot was purchased by her with her own money. She also filed a false complaint
on August 28, 1992 against the complainant and his sons for offences punishable
under Sections 384, 511, 504, 506 read with 34 of Indian Penal Code (IPC)
alleging criminal intimidation and extortion.
The complainant was thus convinced that his daughter and son-in-law (accused
Nos. 1 and 2) had cheated him and committed criminal breach of trust. He,
therefore, filed Criminal Complaint No. 605 of 1993 in the Court of Judicial
Magistrate, First Class (A.C. Court), Pune on March 15, 1993 for offences punishable under Sections 406 and 420 read with 34 IPC. The Judicial Magistrate,
First Class after recording statement of complainant issued process under
Section 204 of Code of Criminal Procedure, 1974 (hereinafter referred to as
During the pendency of the proceedings, however, complainant died in
Three sons of deceased-complainant [(i) Shaikh Shaiuddin, (ii) Shaikh
Nuruddin; and (iii) Shaikh Nizamuddin] made an application (Ex. 21) on January 17, 1997 for permitting them to continue prosecution against the accused persons.
The learned Magistrate by an order below Ex. 21 dated May 23, 1999 granted the
application relying upon a decision of this Court in Ashwin Nanubhai Vyas v.
State of Maharashtra, 1967 (1) SCR 807 : AIR 1967 SC 983 and allowed Shaikh
Sahabuddin respondent No. 1 herein to continue the prosecution against the
accused persons. It appears that the said order had not been challenged by the
accused and it had attained finality. Name of respondent No. 1 was accordingly,
entered on May 14, 2000. Prosecution witnesses were also examined thereafter.
On March 3, 2004, written arguments were submitted by the appellants-accused
praying for their discharge.
On August 4, 2004, an application was made by the appellants-accused under
Section 239 of the Code for their discharge (Ex.1) contending that no case was
made out against them. The said application, however, was rejected by the Trial
Court on August 25, 2004 holding that there was a prima facie case against the
accused. Being aggrieved by the said order, the accused preferred revision
which was also dismissed by the Sessions Court observing that there was a prima
facie case against the accused for offences punishable under Sections 406, 420
read with 34 IPC. A Writ Petition against the said order met with the same
fate, which has been challenged in the present appeal.
On February 6, 2006, when the matter was placed for admission hearing, the
following order was passed by this Court;
"Issue notice returnable within four weeks confined to the question
whether the legal heirs could have continued with the complaint."
Thereafter, on December 4, 2006, the matter was ordered to be placed for
final disposal on a non- miscellaneous day in February, 2007. That is how the
matter has been placed before us.
Reading of the order dated February 6, 2006, extracted hereinabove clearly
shows that notice was confined to the question whether the legal heirs could
have continued with the complaint.
The learned counsel for the appellants submitted that on the death of
complainant on November 19, 1996, the proceedings came to be abated. In the
circumstances, the Court should not have granted prayer of the respondent No. 1
permitting him to continue the prosecution. Such an order is illegal and
unlawful. He also submitted that the application filed by the accused under
Section 239 read with Section 245 of the Code ought to have been allowed and
they ought to have been discharged. Unfortunately, however, the Court committed
an error and the application was rejected. The said order was confirmed by the
revisional Court as well as by the High Court and all the orders, therefore,
deserve to be set aside.
Learned counsel for the respondents, on the other hand, supported the order
submitting that an order permitting the first respondent-son to continue
prosecution could not be said to be illegal or contrary to law. Since the
action was in accordance with law, no fault can be found against it and the
appeal deserves to be dismissed. It was further submitted by the learned
counsel for the first respondent that an application was made by sons of
deceased Shaikh Saheblal in January, 1997 which was allowed by the Trial Court
in May, 1997 and the first respondent was permitted to continue the case
against the accused. The said order was never challenged by the accused and it
has become final. The name of the first respondent was entered in May, 2000 and
even thereafter nothing was done by the appellants.
Witnesses were then examined and an application for discharge was made as
late as in August, 2004 which was rightly rejected. Since the application filed
by sons of deceased Shaikh Saheblal was allowed in May, 1997, there is gross
delay and laches on the part of the appellants in approaching the Court. Even
on that ground, rejection of application of the appellants could not be said to
be improper. It was further stated that in application for discharge what was
contended by the accused was that no prima facie case had been made out against
them for offences punishable under Sections 406 and 420 read with 34 IPC. All
the Courts held that prima facie case had been made out. No grievance was made
against permitting sons to continue the prosecution nor anything was stated regarding
death of original complainant and the appellants cannot now be allowed to raise
such contention. On all these grounds, a prayer was made to dismiss the appeal.
In our opinion, the orders passed by the courts below cannot be said to be
illegal, unlawful or contrary to law. It is submitted by the learned counsel
for the appellants that the Trial Court was wrong in relying upon Ashwin
Nanubhai. In peculiar facts and circumstances of the case and keeping in view
the scheme and relevant provisions of the Code of Criminal Procedure, 1898
('old Code'), this Court granted such permission, but the ratio laid down in
that case would not apply to the case on hand. In Ashwin Nanubhai, a complaint
was filed under Section 198 of the old Code by one Kusum for offences
punishable under Sections 417, 493 and 496 of IPC. It was the case of Kusum
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,
however, he abandoned her and married another. On being questioned, Vyas told
her that he had never married her. According to Kusum, she became pregnant as a
result of cohabitation, but in view of her serious ailment, Vyas took her to a
clinic where under medical advice and on certificate granted by Vyas, an
abortion was carried out. She, therefore, filed a complaint on November 1,
1963. Cognizance was taken by the Court. During the pendency of the case,
however, on November 29, 1963, Kusum died of a heart-attack.
Her mother, therefore, applied to the Court for substitution as a fit and
proper complainant in the case.
She wanted to continue criminal prosecution. The application was strongly
objected to by Vyas contending that the trial of offences under Sections 493
and 496 IPC was governed by Section 198 of the Code and on Kusum's death, the
complaint should be treated as abated. The Presidency Magistrate, however,
turned down the objection and decided to proceed with the case with Kusum's
mother as the complainant. Revision filed by Vyas was dimissed by the High
Court of Bombay.
Aggrieved accused approached this Court.
Considering the scheme of the Code (old Code) in the light of allegations
levelled against the accused, this Court held that proceedings initiated by
Kusum could be continued at the instance of her mother.
The Court stated;
"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
complaint. 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 Sections 411A(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".
Dealing with Section 198 of the old Code, this Court said; "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
493 (a man by deceit 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 person 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 triable 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 filed".
It was further stated; "Mr. Keshwani 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 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
247 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 summons 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".
The Court proceeded to state;
"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
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 Code would
have said what would happen if the complainant remains absent".
The Court also considered the provisions of Section 495 of the Code (similar
to Section 302 of the present Code) and observed that though Presidency
Magistrate used the word 'substitute', it was in effect continuation of
prosecution by the mother. The power was undoubtedly possessed by Presidency
Magistrate under Section 495 of the Code and the Court was empowered to
authorize conduct of prosecution by any person. The Court stated;
".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".
The learned counsel for the appellants submitted that the ratio laid down in
Ashwin Nanubhai would not apply inasmuch as in that case the Court was
concerned with offences punishable under Sections 493 and 496 of IPC. They were
then triable by a Court of Session. In the instant case, we are concerned with
the case punishable under Sections 406 and 420 of IPC, triable by a Magistrate
of First Class. It was also stated that the Court had observed that the
offences punishable under Sections 493 and 496 were serious being punishable with
imprisonment which may extend to ten and seven years respectively.
In our opinion, the submission has no force and cannot be accepted. What was
considered by this Court in Ashwin Nanubhai was whether prosecution could be
continued by any person other than the complainant in view of bar of taking of
cognizance under Section 198 of the Code. Considering the scheme and Sections
198 and 495 of the Code, this Court held that such permission could be granted
and a person other than the complainant could be allowed to prosecute the
complainant. In the instance case, there is no such bar.
Moreover, necessary permission was granted in the year 1997 and we find no
infirmity therein. So far as offences under Sections 406 and 420 are concerned,
they are also serious in nature and are punishable with imprisonment for three
years and seven years respectively.
Our attention has also been invited by the learned counsel for the
respondents to a recent case in Jimmy Jahangir Madan v. Bolly Cariyapa HIndley
(dead) by Lrs., (2004) 12 SCC 509 : JT 2004 (9) SC 558. In Jimmy Jahangir, a
complaint was filed by one B against the accused under Section 138 of the
Negotiable Instruments Act in which cognizance had been taken.
During trial, however, the complainant died leaving behind her son and
daughter who executed General Power of Attorney in favour of two persons. The
Power- of-Attorney holders filed applications under Section 302 of the Code
permitting them to continue the prosecution.
The prayer was contested, but the Magistrate allowed the application
granting permission to continue prosecution.
The High Court confirmed the order of the Trial Court which was challenged
by the accused in this Court.
Though this Court allowed the appeal holding that the courts below were not
justified in granting such permission since it was made by the Power of
Attorney, it was held that a person other than a complainant could continue
prosecution. The Court, therefore, while setting aside the orders granted
liberty to the heirs of the complainant to file fresh application under Section
302 of the Code.
Section 302 of the present Code reads thus;
302. Permission to conduct prosecution. (1) Any Magistrate inquiring into or
trying a case may permit the prosecution to be conducted by any person 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 such permission;
Provided 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.
(2) Any person conducting the prosecution may do so personally or by a
The Court also considered Ashwin Nanubhai and observed;
"The question as to whether heirs of the complainant can be allowed to
file an application under Section 302 of the Code to continue the prosecution
is no longer res integra as the same has been concluded by a decision of this
Court in the case of Ashwin Nanubhai Vyas v. State of Maharashtra and Anr.,
(1967) 1 SCR 807 in which case the Court was dealing with a case under Section
495 of the Code of Criminal Procedure, 1898, which is corresponding to Section
302 of the Code. In that case, it was laid down that upon the death of the
complainant, under the provisions of Section 495 of the said Code, mother of
the complainant could be allowed to continue the prosecution. It was further
laid down that she could make the application either herself or through a
Reference was also made to Balasaheb K.
Thackeray & Anr. v. Venkat @ Babru & Another, (2006) 5 SCC 530 : JT
2006 (7) SC 44, to which one of us (C.K.
Thakker, J.) was a party. In that case, V filed a complaint against the
accused in the Court of Judicial Magistrate, First Class for commission of
offence punishable under Section 500 read with 34 IPC. The complainant,
however, died in 2005 during the pendency of the proceedings in this Court. The
accused, therefore, made an application under Section 256 of the Code for
dismissal of the complaint on the ground of death of complainant. Legal heirs
of the complainant submitted that they would make an application before the
Trial Court where the case was pending as the accused had approached this Court
against an interim order and the proceedings were pending in the Trial Court.
This Court considered the provisions of Section 495 of the old Code and
Section 302 of the present Code as also Ashwin Nanubhai and Jimmy Jahangir and
observed that since the proceedings were pending before the Trial Court, it was
not necessary to express any opinion one way or the other. It was observed that
if any permission would be sought to continue prosecution by the legal heirs of
the deceased, the Court would consider the same in its proper perspective and
take an appropriate decision in accordance with law.
From the above case law, in our opinion, it is clear that on the death of
Shaikh Saheblal, the case did not abate. It was, therefore, open to the sons of
complainant to apply for continuation of proceedings against accused persons.
By granting such prayer, no illegality has been committed by the courts.
There is an additional reason as to why the order should not be interfered
with at this stage. As we have already noted, the complainant died in November,
Immediately thereafter, sons applied for impleadment allowing them to
continue prosecution against the accused persons by the application dated
January 17, 1997. The said application was allowed and permission was granted
by an order dated May 23, 1997. The said order was never challenged by the
appellants and it had become final. Name of the first respondent was entered on
May 14, 2000. Thereafter witnesses were also examined. In so far as application
dated August 4, 2004 of the accused is concerned, it was under Section 239 of
the Code which provides for discharge of accused. The only ground put forward
by the accused was that no prima facie case had been made out against them. In the
light of above facts also, in our opinion, this is not a fit case to exercise
discretionary power under Article 136 of the Constitution.
Finally, the contention that a civil suit is filed by the complainant and is
pending has also not impressed us. If a civil suit is pending, an appropriate
order will be passed by the competent Court. That, however, does not mean that
if the accused have committed any offence, jurisdiction of criminal court would
Both the proceedings are separate, independent and one cannot abate or
defeat the other.
For the foregoing reasons, we are of the view that the courts below were
right in permitting respondent No.1 to continue the prosecution by proceeding
with the complaint filed by Shaikh Saheblal. In taking such decision, the
courts had not committed any error of law which deserves interference by this
Court under Article 136 of the Constitution.
The appeal is, accordingly, dismissed.