1. In this case the Police preferred a charge sheet against two persons, Shaikh Davood and Mahamed Abu Baker for offences under Section 304 A' or 326 of the Indian Penal Code, by beating one Sultan Marakayar and causing his death. The Magistrate after hearing the prosecution evidence held that death was not the result of the beating and framed a charge under Section 323 of the Indian Penal Code only. Accused entered on their defence and adduced evidence. After the close of the defence evidence the defence pleader drew the magistrate's attention to a ruling of the Punjab Chief Court reported in Labhu v. Emperor (1919) 52 I.C. 797 and argued that owing to the death of the person injured the charge against the accused must be held to have abated. The magistrate accepted this contention and closed the case without recording any judgment of conviction or acquittal.
2. The present revision petition is filed by one Muhammad Ibrahim Sahib, son-in-law of the deceased Sultan Marakayar. He was examined as 4th prosecution witness in the case; and it was he who reported the occurrence to the Village Munsiff and to the Police (vide Exhibits C and D) on 18-2-1919, the day after the occurrence. SultanMrakayar died on 20-2-1919. The Police charged the case on 21-3-1919.
3. It was found impossible to serve the 2nd accused Mahamed Abu Baker, and with the consent of the petitioner, the petition in so far as it affected him was dismissed on 29-10-1920. It remains to consider what orders should be passed as regards the case against the 1st accused, Shaikh Davood.
4. With all respect to the learned Judges of the Punjab Chief Court who have held otherwise in Rama Nand v. Emperor (1917) 40. I.C. 1008 and Labhu v. Emperor (1919) 52 I.C. 797(1919) 52 I.C. 797, I must dissent from the view that a criminal prosecution under Section 323 of the Indian Penal Code abates by reason of the death of the person hurt. It appears to be based on what seems to me a mistakenreading of Section 89 of the Probate and Administration Act (V of 1881) which runs thus:--'All demands whatsoever, and all rights to prosecute or defend any suit or other proceeding, existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators, except causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party, and except also cases where, after the death of the party, the relief sought could not be enjoyed, or granting it would be nugatory '.
5. The provision has no reference to criminal prosecutions but to civil actions only. The right to institute criminal proceedings, subject to certain limitations contained in Sections 195, 199 of the Criminal Procedure Code, with which we are not concerned in this case, is, common to any' person cognisant of the commission of the offence, and does not exist merely in favour of the person injuriously affected by the offence. The word ' prosecute ' which occurs in the section implies no connection with criminal proceedings, but is used in the same sense as in Sections 14 and 16 of the Limitation Act. The use of the term 'cause of action 'a phrase un-known to the criminal law is clearly indicative of the scope of the section. Section 89 of the Probate and Administration Act being inapplicable it makes not the slightest difference whether the offence is compoundable or not.
6. This is in accordance with the views expressed in In re, Ganesh Narayan Sathe I.L.R.(1889) Bom. 600 , Emperor v. Sultan Singh I.L.R.(1909) All. 606 and by this Court in In re Gangamma Dorayya (1892) 2 Weir 418.
7. I have already referred to the provisions of Sections 195 to 198 of the Criminal Procedure Code as provisions with which we are not now concerned, but I would not be understood as suggesting that the death of the complainant after the institution of the proceedings caused any abatement even in such cases. It was held by this Court in In re Gowdar Kottra (1869) 4 M.H.C.R. . 55 that in the case of a criminal prosecution for adultery the death of the husband after he had instituted the prosecution did not cause the prosecution to abate.
8. I would therefore direct the Magistrate to restore the case to his file and to dispose of it according to law, as against 1st accused Shaikh Davood.
Coutts Trotter, J.
9. I entirely agree and I only add a few words of my own because there are two reported decisions of the the Punjab Chief Court which countenance the view that Section 89 of the Probate and Administration Act (V of 1881) applies to criminal as well as to civil proceedings. My Lord has pointed out several considerations that appear to me completely to dispose of such a contention; but there is a further one which reduces it to a positive absurdity. By the section all rights to prosecute or defend any suit or other proceeding survive to and against his executors or administrators' with certain defined exceptions. So that if the Punjab view is correct, an executor or administrator can be put in the dock to answer for the criminal acts of his testator.
10. This of course cannot have been pointed out to learned Judges, but it ought to have occurred to the reporters who put these decisions in the volumes of reports, and who had ample liesure to consider what was involved in them. With six High Courts overburdened with work putting forth a heavy outturn of judgments which they have no time to consider at length except in cases of special importance, some responsibility of discrimination ought to rest on the reporters as to what they select for publication. The present indiscriminate system of reporting everything throws an unnecessary burden on both bench and bar; and these cases seem to me to afford a signal instance of the mischief.