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Ali Dar Vs. Mohd. Sharif and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1966CriLJ412
AppellantAli Dar
RespondentMohd. Sharif and ors.
Cases ReferredU. Tin Maung v. King
Excerpt:
- .....some other high courts have taken the view that the death of a complainant has no effect on the criminal proceedings and they shall continue despite the fact that the original complainant is dead. there is a via media struck by some courts which have held that where the criminal case is based on a wrong to the person of the deceased the death of the complainant will end the criminal prosecution; otherwise the criminal case will continue. some of these cases decided by different high courts will be reviewed at their proper place. but before we discuss the different contradictory and conflicting authorities on this point, we have to keep in view certain basic facts which govern criminal cases.4. a crime is an unlawful act which is not an offence against any particular individual but is.....
Judgment:

J.N. Bhat, J.

1. This case originally came up before one of us, but regard being had to the divergence of opinion amongst the different High Courts on the point of law involved in this case, it was referred to a Division Bench and has been heard by the Division Bench.

2. The facts giving rise to the petition are that one Sultan Dar instituted a complaint underSub-section447, 427 and 506 of the RPC against the respondents Mohd. Sharif and Ors. before the ADM Srinagar on 29th May 1961. The case was transferred to the court of the First Addl. Munsiff Magistrate Stringer. The allegations made in the complaint were that there was a joint land belonging to the complainant and his brother, Ali Dar, which was in their possession and upon which they had planted certain trees. The accused mentioned in the complaint trespassed on this land and felled down certain trees planted on this plot of land by the complainant Sultan Dar and his brother and thereby caused mischief. After examining the complainant and one witness, process underSub-section447, 427 was issued against the accused mentioned in the complaint. When the case was going on, an application was presented on 12th March of 1961 by Ali Dar, brother of Sultan Dar complainant, that he be permitted to continue the complaint lodged by his deceased brother as he was equally interested in the result of the complaint. Objections against this application of Ali Dar were taken by the trial court of the First Addl. Munsiff Magistrate Stringer and after hearing arguments the trial court dismissed the case under Section 259 of the Criminal Procedure Code and discharged the nonapplicants by order dated 20th May 1964. This order was upheld by the learned Addl. District Magistrate Stringer by his order dated 25th February 1965. Both the orders of the courts below are the subjectmatter of this revision.

3. It may be stated without any reserve that the different High Courts in India have taken contrary views in such cases. Some High Courts have held that the death of a complainant in a summons or a warrant case ipso facto terminates the proceedings and the accused are entitled to an acquittal or a discharge as the case may be. Some other High Courts have taken the view that the death of a complainant has no effect on the criminal proceedings and they shall continue despite the fact that the original complainant is dead. There is a via media struck by some courts which have held that where the criminal case is based on a wrong to the person of the deceased the death of the complainant will end the criminal prosecution; otherwise the criminal case will continue. Some of these cases decided by different High Courts will be reviewed at their proper place. But before we discuss the different contradictory and conflicting authorities on this point, we have to keep in view certain basic facts which govern criminal cases.

4. A crime is an unlawful act which is not an offence against any particular individual but is against the public as such and in all criminal proceedings the principle underlying is that a crime is an unlawful act or default which is made against the State and the crown is the virtual prosecutor in every case. ' A crime is 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'. See Mann v. Owen (1829) 9 B and C 595. Similarly in Mogul S.Section Co. v. MacGregor (1889) 23QBD 598 Lord Esher said 'An illegal act which is a wrong against the public welfare, seems to have the necessary elements of a crime.' In Parker v. Green (1862) 2 B and C 299 and Mellor v. Denham (1880) 5 QBD 467 it has been laid down:

'While a crime is often also an injury to a private person, who has a remedy in a civil action, it is as an act or default contrary to the order, peace, and well being of society that a crime is punishable by the State.'

5. A Division Bench of the Calcutta High Court in Mahadeo Lal v. King Emperor 12 Cal WN 750 said : ' The grounds on which we have been asked to set aside the conviction are (1) that the accused has been convicted of attempting to cheat not the complainant but the pleader Suresh Babu; (2) that the act of the accused did not amount to an attempt at cheating, as it was not likely to harm the pleader in any way. The first' of these grounds cannot prevail, because the prosecutor, in all criminal cases is the Crown. The Presidency Magistrate is entitled to convict an accused of any offence which the evidence before him discloses he has committed.

6. These are the cardinal principles governing all criminal prosecutions. Section 4 (c) of the Criminal P.C. defines a complaint as ' the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence but does not include the report of a police Officer.' This definition of the word 'complaint' connotes that a complaint to move the criminal court need not be made by particular person : anybody can either orally or in writing make an allegation before a Magistrate so that the latter takes action under the Criminal P.C. A whole host of authorities has been cited by Chilaley under note 5 to this definition, wherein he states that any person having knowledge of the commission of an offence may set the law in motion by a complaint, even though he is not personally injured or affected by the offence. ( See Gajraj Sinha v. Emperor AIR 1935 All 938, Mehr Singh v. Emperor AIR 1933 Lah 884, Bejoy Chand Mahatab Bahadur v. Kristo Mohini Das ILR 21 Cal 626 etc.

7. The Code however, lays down certain exceptions in making a complaint. They are contained inSub-section195, 196, 198 and 199 of the Criminal P.C. A further exception is in the case of some special or local laws wherein certain persons have been specified as being competent to institute a complaint. It is only in the case of these exceptions that a complainant need be a particular person; otherwise anybody whether he is personally affected by the offence committed or even if he has personal knowledge or not can make a complaint with a view to move a criminal court to take action under the Criminal P.C. We are, therefore, of the view that barring these exceptions a complaint can be lodged by any person and once a complaint is lodged, it has to reach its logical conclusion, except of course if it is compounded (in the case of compoundable offences) and should end in a discharge or an acquittal or else is covered by the provision of Section 247 or 259 of the Cr. P. C.

8. In this case the section relied upon by the lower courts and by the Learned Counsel for the non-applicants is Section 259 of the Criminal P.C. This section lays down:-

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.

9. The offences in this case for which the accused have been summoned are underSub-section447 and 427 of the RPC. Section 447 is a cognizable offence, though offences under both the sections are compoundable. The argument in this case is whether the death of the complainant would bring to an end the criminal complaint lodged by Sultan Dar or that his brother Ali Dar should be permitted to continue the proceedings. The emphasis is on the word ' absent'. In Section 247 which is a section with a similar aim and governs summons cases the words used are ' the complainant does not appear'. It is the interpretation of these two words ' absent' and ' does not appear' that is primarily the subject matter of discussion between the parties. In our opinion ' is absent' or ' does not appear' would govern cases where there is some sort of willful act on the part of the complainant or at least a culpable negligence in keeping himself away from the court on the date fixed for the hearing. In the Oxford dictionary the word ' absent' has been defined as 'keep oneself away'. In the Webster's dictionary the word has been defined as not present or not attending. In our opinion as already stated, the words 'absent' and 'does not appear' come into play when the complainant is in a position to take some decision and either willfully or due to negligence does not exercise his volition in favor of attending the court. But in the case of a person who is dead there can be no question of his keeping away or not appearing before a court or anywhere else. The person is no more and as such he cannot exercise any volition one way or the other in deciding to go to court or keeping himself away from it. This in our opinion should be the interpretation placed on the words ' absent' and ' does not appear.

10. About the authorities on the interpretation ofSub-section247 and 259 of the Criminal P.C. (the principle underlying both the sections being the same) there is a great divergence of opinion. Further in the same High Court different views have been expressed from time to time. Authorities for the three propositions mentioned above will now be cited.

11. In Rama Nand v, Emperor, AIR 1917 Lah 403 which was a case under Section 323 of the I.P.C., it was held that the right to continue the prosecution does not survive to the legal representatives of a deceased person.

In Ishar Das v. Emperor 10 Pun Re 1908 (Cr) p, 80 which was a defamation case it was held that the death of a complainant terminates a prosecution for defamation which is essentially a personal action.

In Labhu v. Emperor AIR 1919 Lah 409 it was stated that in a compoundable offence the absence of the complainant on the date of hearing owing to the death of the complainant would terminate the criminal case.

In A. N. M. Ashraf v. Surendra Nath Sen AIR 1949 Cal 252 it was held that there was nothing to suggest that Section 247 did not apply where the complainant is dead, although this was obiter in that case.

In Puran Chandra v. Dengar Chandra AIR 1915 Cal 708 (1) a complaint under Section 352 was not allowed to be carried on by the nephew of the deceased and the accused were acquitted.

In Appala Naidu v. Emperor AIR 1928 Mad 167 it was held that the accused should be acquitted when the complainant is dead.

In Ram Din v. Emperor AIR 1948 All 135 it was held that a new complaint was competent and, therefore, the accused should be acquitted in the previous complaint.

This is one set of authorities. Contrary to this there is a whole string of authorities.

12. In Panchu Swain v. Emperor AIR 1943 Pat 379 which was a case under Section 323 of the I.P.C. it was held that there is nothing in the Cr. P.C. to warrant the view that there is abatement of the criminal proceedings on the death of the complainant. Though a case may be started on the complaint of any particular individual and though that case may be compoundable, it is erroneous to compare the case to a civil action where the cause of action is personal to the plaintiff. The cause of action for a civil suit bears no analogy to an offence, once a criminal case is started, be it upon a complaint or not, the proceedings must be carried on according to the provisions of the Criminal P, C. Consequently a case under Section 323 Penal Code can be proceeded with in spite of the death of the complainant. Some authorities were also cited in this case.

In Anand Rao v. Gadi AIR 1932 Nag 72 it was held that on the death of a complainant the court had power to continue the trial.

In Mahomed Azam v. Emperor AIR 1926 Bom 178 it was held that in the case of a noncognizable offence instituted upon a complaint, the axiom of actio personalis moritur cum persona, in civil law confined to torts, does not apply, and 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.

In Emperor v. Mauj Din AIR 1924 Lah 72 an abduction case was permitted to be continued on the death of the complainant.

In Musa v. King Emperor AIR 1924 All 666 (2) a case under Section 323 was not terminated on the death of the complainant and it was held that the proceedings did not abate.

Similarly in Inre Ramasamier AIR 1916 Mad 1034 (1) no abatement of the case was held to come into existence on the death of the complainant.

In Mahomed Ibrahim v. Dawood AIR 1921 Mad 278 a case under Section 323 I.P.C. was not permitted to abate on the death of the complainant. In that case it was held that that Section 89 of the Probate and Administration Act did not apply to criminal prosecution.

In U Mo Gaung v. U Po Sin AIR 1929 Rang 14 (2) a non-compoundable and cognizable case was not consigned to records after the death of the complainant.

U. Tin Maung v. King AIR 1941 Rang 202 has discussed some authorities in detail and Mostly J. has in very strong language held that Section 306 of the Succession Act does not apply to criminal prosecutions. In that case his Lordship has further remarked that where the complainant was a police officer and had brought a case of defamation against the accused, the death of the police officer would not terminate the proceedings. Section 198 Criminal P.C. was again considered in that case and it was held that it was limited only to court's power of cognizance and once cognizance had been taken the criminal proceedings must come to its logical conclusion, either in the discharge, acquittal or conviction of the accused.

There are some other authorities also, but they need not be multiplied.

13. As would appear from the authorities cited above, the three conclusions as enunciated in an earlier part of this order are clearly brought out. As indicated earlier, we would prefer the view which lays down that a criminal complaint does not automatically come to an end on the death of the complainant and the accused cannot be discharged or acquitted simply because the complainant is dead and, therefore, is absent on the date of hearing of the case. This view is further strengthened from the following observations.

14. The Civil P.C. lays down a separate order (O. 22) as to what is to happen on the * death of the plaintiff or the defendant, and what should be the fate of a suit when there are more plaintiffs or defendants than one. The same procedure applies to appeals also. The Criminal P.C. is absolutely silent on this point, though the framers of the Code, and the subsequent amendments thereof after its first enactment, should have kept the corresponding provisions of O, 22 in view and made some provision on the subject in the Code. We feel, as already indicated, that under the English Law as well as the Indian Law a crime is an offence not against individuals but against the society or the public as such. When once a complaint has been properly instituted and proceeded with, it is the duty of the Courts to punish the offender if the case is proved against him, the death of the complainant is to have no effect on the proceedings, though in some cases the wrong done is strictly to the person of the complainant or where the complaint can be lodged only by a specified class of persons. As held by Mostly J. in AIR 1941 Rang 202 (Supra) we think that the limitation is there only with respect to the initiation of the proceedings. When the proceedings have been initiated properly the death of the complainant by itself should not cause any abatement of the proceedings.

15. Even otherwise this case stands on a different footing. In this case the complaint clearly states that the property upon which criminal trespass has been committed and whereupon mischief has been done belongs to the deceased Sultan Dar as well as to the present applicant Ali Dar. Ali Dar was as much affected by the wrongful acts (if the complaint is true) as Sultan Dar was. For the sake of convenience and regard being had to the law in force, either of them could set the criminal courts in motion. Therefore, on the death of Sultan Dar, Ali Dar was perfectly justified in requesting the court to allow him to continue the proceedings.

16. We are, therefore, clearly of the opinion that the orders passed by the two courts below cannot be upheld and should be set aside. The orders are hereby set aside and the applicant Ali Dar is allowed to continue the proceedings from the stage where Sultan Dar left them.

J.N. Wazir, C.J.

17. I agree.


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