T.N.R. Tirumalpad, J.C.
1. This is an application under Section 561-A, Cri.P.C praying that the proceedings in Criminal Case No. 27 of 1960 pending before the S.D.M., I.W.T. may be quashed.
2. One N. Leikhon Singh, filed the said criminal case before the S.D.M. on 7.3.1960 against the petitioners herein alleging, that on 4.3.1960, during his absence from the house, his wife, petitioner No. 2 eloped with petitioner No. 1 carrying away properties and money amounting to Rs. 767/- from, his house, that the petitioners have been since then living as husband and wife and that they were thus guilty under Sections 380, 494 and 496, I.P.C. The names of the prosecution witnesses were also mentioned in the petition of complaint. The Magistrate registered the case under Sections 494 and 109, I.P.C. He fixed the case for appearance of the petitioners to 1.6.1960. In the meantime, the complainant died.
On 1.6.1960, a petition was fifed by the deceased complainant's brother stating that the complainant was murdered by petitioner No. 1 on 31.3.1960, that petitioner No. 1 was in jail custody and that permission may be granted to the brother of the deceased to represent the deceased in the criminal case as complainant. The Magistrate granted the said permission. After that the case underwent 3 to 4 adjournments.
On 10.8.1960, petitioner No. 2 filed a petition before the S.D.M. praying that she may be discharged under Section 259, Cri.P.C. as the complainant was dead. The Magistrate rejected the petition stating that he was unable to go back on his previous order at that stage, as he had allowed the deceased complainant's brother to continue the proceedings.
Thereupon, the petitioners have filed the present application under Section 561-A stating that with the death of the complainant the proceedings abated, that as no witnesses were examined and no charge framed the case fell within the provisions of Section 259, Cri.P.C. since the offence under Section 494 was lawfully compoundable and non-cognizable.
3. Section 259, Cri.P.C. provides that, in a warrant case instituted upon complaint if the complainant is absent on the date of hearing and the offence is compoundable and non-cognizable, the Magistrate may, in his discretion, discharge the accused at any time before the charge has been framed. Section 259 deals with a case where the complainant absents himself on the date of hearing. It does not cover a case where it was brought to die notice of the Magistrate on the date of hearing that, before the date of hearing, the complainant died and was therefore unable to appear on the date of hearing. Certainly, it cannot cover a case where it was brought to the notice of the Magistrate that the complainant was murdered by the accused before the date' of hearing. In such a case, the Magistrate has to summon the witnesses mentioned in the petition of complaint to see if a prima facie case existed against the accused. Where, therefore, any person representing the deceased complainant was prepared to go on with the case and produce the witnesses, it will be the duty of the Magistrate to allow him to go on with the case. There is no provision, in the Cri.P.C. for the abatement of a criminal case on the death of a complainant.
4. My attention was drawn to the decision A.N.M. Ashraf v. Surendra Nath Sen AIR 1949 Cal 252. That was a case where the complainant was dead on the date of hearing in a summons case in which the charge was under Section 426, I.P.C. and the accused were thereupon acquitted by the Magistrate under Section 247, I.P.C. The deceased complainant's son thereafter filed another complaint on the same allegations, but charging the same accused persons under Section 427, I.P.C. It was held in that decision that Section 403, Cri.P.C. cannot be dodged in that fashion and will bar the trial of the subsequent case. It was also stated as an obiter dictum that there was nothing in Section 247, Cri.P.C. to suggest that it did not apply where the complainant was dead. It was pointed out on the basis of that decision that the same principle will apply for Section 259, Cri.P.C. in a case where the complainant is dead and does not appear on the date of hearing.
5. The real question before us is not whether Section 247 or 259 will apply to cases where the complainant is unable to appear in Court on account of his death. Under the two sections, discretion is given to the Magistrate to decide whether he will acquit or discharge the accused respectively for the absence of the complainant for whatever cause the absence may be or whether he will adjourn the hearing to some other day. In a case where it is brought to the notice of the Magistrate that the complainant is dead and hence could not appear on the date of hearing, he has to use his judicial discretion in favour of adjourning the case and not of acquitting or of discharging the accused. In criminal cases and particularly in serious cases, the Court has a duty to see that justice was done and to see whether there was evidence to show conclusively that the accused persons were guilty.
6. In complaint cases, though the proceedings are initiated on private complaints, the matter is not one solely between the complainant and the accused as is civil cases. The Court has got a duty to see that persons guilty of serious criminal offences are convicted and given proper punishment. Thus where serious allegations are made against accused persons in a private complaint, the death of the complainant should not prevent the Court from investigating the matter further by an enquiry to see whether the case against the accused persons has been made out. This is particularly so in warrant cases where the offences are more serious.
7. Criminal Procedure Code makes a distinction in this regard between summons cases and warrant cases and again between warrant cases where the offence is compoundable and non-cognizable and cases where the offence is non-compoundable and cognizable. Thus, Section 247, Cri.P.C. provides that the accused in summons cases can be acquitted for the absence of the complainant, since the offences concerned are not very serious and a second trial of the accused for the same offences subsequently will be barred under Section 403, Cri.P.C. But in compoundable and non-cognizable warrant cases, the accused can only be discharged by the Magistrate under Section 259, Cri.P.C. for the absence of the Magistrate and such discharge will not amount to acquittal under Section 403, Cri.P.C. and a second trial for the same offence will not be barred. This distinction is made because the offences in such cases are more serious than the offences in summons cases.
Again, in non-compoundable and cognizable warrant cases, the accused cannot be discharged by the Magistrate for the absence of the complainant, because in such cases the offences are far more serious. Indeed it is the duty of the Court in such cases to hold an enquiry to see if the case has been made out against the accused.
8. Thus, where it is brought to the notice of the Magistrate that the complainant was dead and hence unable to appear in Court, he should not use his discretion in favour of either acquitting the accused under Section 247, Cri.P.C. in summons oases or in favour of discharging the accused under Section 259, Cri.P.C. in warrant cases involving compoundable and non-cognizable offences. This is all the more so in cases coming under Section 259, Cri.P.C. as the offences are more serious than the offences in summons cases. It goes without saying that where it is brought to the notice of the Magistrate on the date of hearing that the complainant was unable to appear on account of his being murdered by the accused, the Magistrate cannot use his discretion in favour of discharging the accused under Section 259, Cri.P.C. Otherwise it will be encouraging the accused persons to do away with the complainant to avoid a trial of the case. In the case before us, brother of the deceased complainant appeared before the Magistrate and prayed for permission to continue the proceedings. It was the duty of the Magistrate to allow him to do so. What the Magistrate did was perfectly in order. The accused cannot claim as a right that they are entitled to a discharge in such circumstances.
9. The petition is, therefore, dismissed.