K. Jayachandra Reddy, J.
1. An interesting question arises in this case. One Aripireddy Savithramma filed a complaint against eight persons including her husband alleging that he married another lady by name Sumitra, i.e. A-2 and that the other accused abetted the offence punishable under Section 494, I.P.C. Some witnesses were examined. While the trial of the case was in progress, the complainant died on 9-1-1982. Her minor daughter Aripireddy Indiravati, aged seven years, represented by her maternal uncle Settipalle Nara. yana Reddy (brother of late Aripireddy Savithramma) filed Criminal Miscellaneous Petition No. 57 of 1982 seeking permission to continue the proceedings against all the accused. The learned Magistrate, after considering the rival contentions allowed the petition and permitted the minor daughter represented by her maternal uncle to continue the proceedings. Challenging the said order, the accused in the C. C have filed this revision.
2. learned Counsel for the petitioner submits that there is no specific provision under the Cr. P.C. to grant such permission to a minor daughter or to any close relation of the deceased complainant to continue the proceedings on the death of the complainant and that, on the other hand, the proceedings abate on the death of the complainant.
3. learned Counsel appearing for the 1st respondent i. e the minor girl who is permitted to continue the proceedings in the place of the original complainant submits that, when once the complaint is filed as provided under Section 198, Cr. P. C the ptocesdings cannot come to an end and will not abate on the death of the complainant and any one of the relations mentioned under Section 198, Cr. P.C. 1973 can, with the permission of the Court, continue the proceedings.
4. There is no decided case on this point after the new Cr. P. C 1973 has come into force.
5. Section 198 of the Cr. P.C. 1973, to the extent it is relevant for the purpose of this case, reads thus:-
198 (1). No Court shall take cognizance of an offence punishable under Chap. XX of the T. P.C. except upon a complaint made by some person aggrieved by the offence:
(a) and (b) xx xx xx
(c) Where the persons aggrieved by an offence punishable under Section 494 or Section 495 of the I.P.C. is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister, or with the leave of the Court, by any other person related to her by blood, marriage, or adoption.
6. As per this provision, so far as the offence punishable under Section 494, I.P.C. is concerned, the aggrieved person, who can file a complaint can be wife, or on her behalf, her father, mother, brother, sister, son, daughter, or her father's or mother's brother or sister. In the year 1979, it is also added to the section that, with the leave of the Court any other person related to the complainant by blood, marriage or adoption can also file a complaint. There is however no specific provision in the Cr. P.C. providing for the continuance of the proceedings by any relation on the death of the complainant. In State v. Gangamma AIR 1965 Mys 235: 1965 (2) Cri LJ 376 it is observed that the authority given under Section 198 to any relative to file a complaint on behalf of the wife must come to an end on the death of the principal that is the wife. It may be noted that Section 198 of the old Code was different. This decision, does not, in any way, help us. In Subbamma v. Kannappachari AIR 1969 Mys 221 : 1970 Cr LJ 59 a learned single Judge held that the death of the complainant in a case of non-cognizable offence does not abate the prosecution, and that it is within the discretion of the trying Magistrate in a proper case to allow the prosecution to be continued by a relative if he is willing.
Ashwin v. State of Maharashtra : 1967CriLJ943 is a case where during the pendency of the proceedings the complainant died, who was the wife. The accused in that case was the husband. The mother of the complainant therein was permitted to continue the proceedings by the Presidency Magistrate. The husband questioned the order of the Presidency Magistrate but was unsuccessful. Then the matter went up to the Supreme Court which refer--red to some of the earlier cases and pointed out that the Courts have taken two different views and that one view is distinctly in favour of allowing the prosecution to continue except in those cases where the Code itself says that on the absence of the complainant the accused must be either acquitted or discharged. Their Lordships further observed :-
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 Section 495 the mother may continue the prosecution herself or through a pleader. We see no reason why we should be astute to find a lacuna 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 Section 198 requires is the removal of the bar.
7. The principles laid down in this case by their Lordships of the Supreme Court squarely apply to the facts of the case before me. Even under the new Cr. P.C. 1973, Section 198 has widened the meaning of the words 'aggrieved person' and has enabled many relations mentioned therein to file a complaint. It is further added to the section that, with the leave of the Court any other relation also can file a complaint. When on such complaint the proceedings are in progress and the complainant dies, then, as observed by the Supreme Court, proceedings should not be allowed to be stultified, and the Court in its discretion can allow prosecution to be continued by a relation of the deceased complainant. In this view of the matter, it cannot be said that the order passed by the learned Magistrate is erroneous or illegal.
8. learned Counsel for the petitioner, however, submits that the minor daughter who is permitted to continue the proceedings is only aged seven years and it cannot be said that she was willing and volunteered to continue the proceedings. In Subbamma's case AIR 1969 Mys 221 : 1970 Cri LJ 59 the person who wanted to continue the proceedings was willing to do so. Therefore, the person who is to be permitted to continue the proceedings must be willing to continue the proceedings. In Ashwin's case : 1967CriLJ943 also, Kusum's mother was willing to continue the proceedings. Therefore, in the instant case, I find it difficult to hold that the minor girl who is aged about seven years is so mentally developed as to understand the implications so that it can be said that she is willing to continue the proceedings. The order of the learned Magistrate does not indicate how he was satisfied, while exercising his discretion in granting the permission to continue the proceedings, that the minor girl was willing to continue the proceedings.
9. As already held, there is no specific provision under the Cr. P.C. which provides for continuance of proceedings. However, as discussed above Courts have indicated that the trial Court in its discretion can permit a relation of the deceased complainant who is willing, to continue proceedings. In the exercise of such discretion the Court should also keep in mind whether such continuance is only meant to harass the accused, as observed in State v. Gangamma 1965 (2) Cr LJ 376.
10. For the aforesaid reasons, the order of the learned Magistrate is quashed. This does not however, prevent any of the relations, as enumerated in Section 198, Cr. P.C. to continue the proceedings after obtaining necessary permission from the Court.
11. With this direction, the revision is allowed.