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Nathu Jeorakhan Vs. Sheopal Kuppa and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Revn. No. 551 of 1961
Judge
Reported inAIR1963MP47; 1963CriLJ184
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 198 and 259; Indian Penal Code (IPC) - Sections 494
AppellantNathu Jeorakhan
RespondentSheopal Kuppa and ors.
Advocates:P.C. Pathak, Adv.
DispositionRevision dismissed
Cases Referred and R. v. Labouchere
Excerpt:
.....the fact of the death thus had effectively checked the right of shivpal to represent akhatram any more. 7. the next point argued, by shri pathak was that both the courts below had failed to exercise discretion vested in them to discharge the accused under section 259 of the code of criminal procedure. it is obvious that the discretion given to him is a judicial discretion and is required to be exercised in consonance with sound principles of equity, justice and good conscience. in my opinion, this objection is not well founded......by the learned counsel for the applicant, it would be helpful toreproduce , section 198 of the code of criminal procedure. it reads as under:'198. no court shall take cognizance of an offence falling under chapter xix or chapter xxi of the indian penal code or under sections 493 to 496 (both inclusive) of the same code, except upon a complaint made bysome person aggrieved by such offence; 'provided that, where the person so aggrieved is a woman who, according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of eighteenyears or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other oersonmay, with the leave of the court, make a complaint 'on hisor her behalf......
Judgment:
ORDER

S.P. Bhargava, J.

1. This revision petition is directed against: the order, dated 20-7-1961, passed by the Magistrate First Class, Bilaspur, in Criminal Case No. 1554 of 1960.

2. Briefly stated the facts of the case are that non-applicant No. 4, Smt Aghanr, was married to one Akhatram. On the allegation that non-applicants 2 and 3 got her remarried with the applicant Nathu, when the first marriage was subsisting, a criminal prosecution under Sections 494 and 494/114 of the Indian Penal Code was started by Shivpal (non-applicant No. 1) by filing a complaint in the Court of the Magistrate First Class, Biiaspur, against the applicant and the non-applicants 2, 3 and 4. Shivpal is the father of the said Akhatram. He had lodged the complaint with the leave of the Court on behalf of Akhatram the husband of Smt. Aghani, who was unable to make a complaint on account of his sickness. However, a few days after the filing of the complaint by Shivpal. Akhatram died. The applicant, therefore, made an application to the Magistrate on 20-7-1961 requesting that the proceeding should terminate on account of the death of Akhatram. This application was rejected by the Magistrate on the same day and the proceedings were ordered. to continue. The applicant moved the Sessions Court feeling aggrieved by that order but without success. The present revision petition, as already said, is directed against the order of the Magistrate, dated 20-7-1961.

3. To appreciate the arguments advanced by the learned counsel for the applicant, it would be helpful toreproduce , Section 198 of the Code of Criminal Procedure. It reads as under:

'198. No Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Indian Penal Code or under Sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made bysome person aggrieved by such offence;

'Provided that, where the person so aggrieved is a woman who, according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of eighteenyears or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other oersonmay, with the leave of the Court, make a complaint 'on hisor her behalf.

'Provided.....'

4. The main contention advanced on behalf of the applicant is that the prosecution which was initiated with the leave of the Court was on behalf of Akhatram. The words 'on his or her behalf', underlined by me, (here in to ' ') which occur in Section 198, Cr. P. Code, wereemphasized by the learned counsel and it was urged thatif all that was intended was that a prosecution for the offences specified in Section 198 of the Code could beinitiated by any other person with the leave of theCourt, it was wholly unnecessary to use these words in that section. The use of the words clearly indicatesthat though on paper the person to whom leave was given to bring the complaint would figure as complainant, really speaking the complaint was on behalf of the real aggrieved person, in the instant case, Akhatram, the husband of Smt. Aghani. It was further urged that after the death of Akhatram, it could not be said that the complaint was still on his behalf. The fact of the death thus had effectively checked the right of Shivpal to represent Akhatram any more. 1 am unable to agree with this argument in its entirety. I am of the view that Section 198 of the Code of Criminal Procedure only limits the power of Court to initial cognizance of the offence but once the Court had seisin of the case there was nothing to prevent it from proceeding with it (See : U Tin Maung v. The King, AIR 1941 Rang 202). It is further significant to note that there is nothing in the Code of Criminal Procedure to warrant the conclusion that a criminal proceeding abates on the death of the complainant. It is true that a case may be started on the complaint of any particular indivfdual and it may be compounded but it is erroneous to compare a criminal case with a civil action where the cause of action is personal to the plaintiff. The cause of action for a civil suitbears no analogy to an offence. It, therefore, appears to be clear that whether a criminal case is started upon a complaint or not, the proceedings are not required to be terminated merely on the ground that the complainant has died. (See : Hazara Singh v. Emperor, AIR 1922 Lah '227); Musa v. Emperor, AIR 1924 All 666(2); Mohammad Ibrahim v. Shaik Dawood, AIR 1921 Mad 278; Mahomed Azam v. Emperor, AIR 1926 Bom 178 and Panchu Swain v. Emperor, AIR 1943 Pat 379).

5. Shri P.C. Pathak next contended that some of the cases to which reference was made in- the orderpassed by the learned Additional Sessions Judge wereunder Section 323 of the Indian Penal Code and as such had no application to that limited class of cases which could be instituted only within the limitation laid down, ty Section 198 of the Code of Criminal Procedure. It is true that generally speaking any person having knowledgeof the commission of the offence may set the criminal law in motion by lodging a complaint even though he is not a person aggrieved by the offence, yet the effect of limitation prescribed by Section 198 of the Code is only on the right of initiation of proceedings. Once the proceedings are instituted in the manner laid down by Section 198 either by the aggrieved person himself or by somebody else after obtaining leave of the Court on his behalf, there is absolutely no difference in the subsequent stages of proceedings between cases which have been instituted under the general law or those cases which are started with the limitations under Section 198 of the Code of Criminal Procedure. They are all required to be enquired into and adjudicated upon in the same manner.

6. In AIR 1941 Rang 202 (supra), the facts were that the complainant who was a police officer in a case under Section 500 of the I. P. C. lodged a complaint for defamation^ against himself and the police force in general. On the death of the complainant, under Section 259 of the Code of Criminal Procedure, the Court was asked to exercise its discretion not to continue the trial and to discharge the accused. However, the Court came to the conclusion that the only way in which the Magistrate could exercise his discretion under Section 259 was to continue with the trial and not to discharge the accused. Ultimately, an application in revision to quash the prosecution for defamation was made on the ground that the complainant was dead and the proceedings have abated. It was heid that the complainant's death did not abate the Criminal proceedings, though the Magistrate in compoundable or non-cognizable offence under Section 259 has a discretion either to discharge or to continue with the trial on the death of the complainant (See: Madho v. Turab Mian, AIR 1915 Cal 263, Narayana Naick v. Emperor, AIR 1931 Mad 772 (1) and R. v. Labouchere, (1884) 12 QBD 320). It is a mistake to speak of an offence as a purely personal one. In Vol. 9 of Halsbury's Laws or England, at page 232, a crime is said to be an unlawful act or default which is an offence against the public, and renders the person guilty of the act or default liable to legal punishment. I am clear in my mind that once the proceedings had been allowed to be instituted by the Court, the condition of the real aggrieved person being alive till the decision of the trial has not been imposed for continuing the trial. Thus, the order of the learned Magistrate passed on 20-7-1961 which has been left undisturbed by the learned Additional Sessions Judge was absolutely correct.

7. The next point argued, by Shri Pathak was that both the Courts below had failed to exercise discretion vested in them to discharge the accused under Section 259 of the Code of Criminal Procedure. There is no doubt that the offence under Section 494 of the I. P. C. is required to be tried as a warrant case. Section 259 of the Code of Cr. Procedure provides as under:

'Section 259: When the proceedings have been instituted upon complaint, and upon any day fixed for the hearing of the case the complainant is absent and the offence may be lawfully compounded, or is not a cognizable offence, the Magistrate may, in his discretion notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.'

It is clear from the Section that a case instituted upon a complaint where charge has been framed, the Magistrate is without any option and has to proceed with the case although the complainant may not appear on the datefixed for hearing. At earlier stage of the case, the Magistrate has been given an option by the Section to discharge the accused. It is obvious that the discretion given to him is a judicial discretion and is required to be exercised in consonance with sound principles of equity, justice and good conscience. In my opinion, however the provisions of Section 259 of the Code of Criminal Procedure were not attracted in1 the instant case on the death of Akhatram. The complainant on record was Shivpal and not Akhatram. If Shivpal remained absent on any date fixed for hearing, the accused might have made a request to the Court to discharge them and the Court would have considered the request in the light of the provisions made in the said Section but that is not their grievance in the instant case. The contention of the applicants really is that Akhatram being the real aggrieved party and he being dead, the proceedings could not be continued. In my opinion, this objection is not well founded. 'The word 'complaint' has been defined in Section 4(h) of the Code of Criminal Procedure. There is no statutory definition of the term 'complainant' but in the absence of a definition, it can only mean the maker of a complaint. Once the proceedings were started by Shivpal on behalf of the husband Akhatram, he was the complainant in the case. Assuming that on some dates fixed for hearing in the case, Shivpal remained absent and Akhatram was able to come and attended the Court, it could not be said that the complainant was present. Similarly, it is obvious that if the death of Shivpal had occurred, an application under Section 259, Cr. P. C., could be made to persuade the Court to discharge the accused if the case was found to be a fit one. I have already made clear that the words 'on his or her behalf' used in Section 198 of the Code of Criminal Procedure refer to the stage of initiation of proceedings and not to the subsequent stages of inquiry of the case so that throughout the inquiry that person remains the complainant who has lodged the complaint. In the view that I have taken, I see no force in this revision petition.

8. The result is that the application for revision fails and is hereby dismissed.


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