1. The question in this application is : first, whether on the death of a complainant the complaint necessarily abates and the accused is entitled to a discharge; and, secondly, whether, in the peculiar circumstances of this case, the learned Magistrate was right in permitting the continuance of the complaint.
2. The deceased complainant was a trustee of a mosque and complained that the petitioner, who was not a trustee, had pulled down the complainant's scaffolding and had erected his own scaffolding for whitewashing the mosque. The complainant charged the accused under Sections 426 and 143 of the Indian Penal Code. Notice was issued in the first instance, subsequently converted into a summons; and after several adjournments, and before evidence was recorded, the complainant died. The petitioners-accused applied for a discharge on the ground that the complaint had abated by reason of the complainant's death. That application was rejected, and it appears that subsequently the learned Magistrate has allowed the proceedings to continue with a certain witness as the complainant.
3. The question of jurisdiction has not been exhaustively argued before us. There can be no question that in the case of cognizable offences, where a complainant and a complaint are not necessary, the death of the injured person makes no difference to the criminal proceedings, which are a matter for the State and which are undertaken by the Government. But even in the case of non-cognizable offences, such as for instance bribery, as is pointed out by this Court in In re Ganesh Narayan Sathe  13 Bom. 600 the Code does not intend to confine prosecutions to the persons directly injured. Similarly, in the case of a sanction, under Section 195 of the Criminal Procedure Code, it was held in In re Thathayya  12 Mad. 47 that once a sanction under Section 195 of the Criminal Procedure Code was granted, there was nothing to restrict the complaint to any particular individual. On the whole we agree with the view of Chamier, C.J., in Damoo Sahu v. Jitan Dusadh  20 C.W.N. 862after considering Madho Chowdhury v. Turab Mian  18 C.W.N. 1211 and Purna Chandra Moulik v. Dengar Chandra Pal  19 C.W.N. 334 that 'it is open to doubt whether Section 247 of the Code was intended to apply to such a case as this. It seems to apply primarily to the case of a complainant who is alive, but does not appear.' Under Section 259, which is perhaps the only other relevant section, the Magistrate may,' not shall ', discharge the accused. We are of opinion, therefore, that in the present case of a non-cognizable offence instituted upon a complaint, the axiom of actio personalis moritur cum persona, in civil law confined to torts, does not apply, and that the trying Magistrate has discretion in proper cases to allow the complaint to continue by a proper and fit complainant, if the latter is willing. The Courts would always be on their guard against needless harassment of an accused by substituting a complainant, who is not a tit person. In the present instance it does not appear to us that it was outside the jurisdiction of the Magistrate to reject the petitioner's application for a dismissal of the complaint and for his own discharge by reason of the death of the complainant. As to his subsequent action, the record is not before us and it is not necessary for us to express any opinion.
4. We dismiss the application.
5. I would only add that there is an unreported case in our Presidency which has some bearing on the present case. It is application for Transfer No. 356 of 1924 from Ahmednagar and it came before the Chief Justice and Mr. Justice Crump on November 12,1924, and before Mr. Justice Pratt and myself on December 4, 1924. The charge was under Sections 477-A and 109 of the Indian Penal Code, for falsification of accounts, but the complainant died after his examination in the committal proceedings. The Magistrate who tried the case had discharged the accused on the merits, but the wife of the deceased complainant appealed to the Sessions Judge praying for a reversal of the order of discharge and for a re-trial. The Sessions Judge allowed this appeal and directed the Magistrate to frame a charge and commit the accused to the Sessions. The matter then came up before the High Court and eventually the trial was directed to be taken by a certain Magistrate. It does not appear that the question of jurisdiction was raised in that case, but it can hardly have been overlooked.
6. Before us, counsel for the accused has not contended that there is no jurisdiction in this Court to substitute a new complainant for a deceased one in a non-cognizable case. He has confined his observations to the facts of this particular case and has argued that the accused should be acquitted.
7. I agree with my learned brother in thinking that the accused ought not to be acquitted. I also agree with the order proposed by him.