ASHWIN NANUBHAI VYAS v. STAIB OF MAHARASHTRA & Anr.

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 eighteen years or is an idiot or lunatic,. or is from sickness or infirmity un able to make a complaint, sonie other person may, with the leave of the Court, make a complaint on his or her behalf: Provided further that The complaint of Kusum was filed to remove the bar contained in this section although for the offence under s. 417 no such bar existed. The offences under ss. 493 (a man by decit causing a woman not lawfully married to him to believe that she is lawfully married to him and to cohabit with him in that belief) and 496 (a preson with fraudulent intention going through the ceremony of being that he is not thereby lawfully married) are married, knowing non-cognizable, not compoundable and exclusively triable by Court of Session. They are serious offences, being punishable with imprisonment extending to 10 and 7 years respectively. The Presidency Magistrate,. was not trying the case but only inquiring into it with a view to its committal to the Court of Session if the facts justified a committal. During this inquiry Kusum died. We have to determine what is the effect of the death of a comp lainant on an inquiry under Chapter XVIII in respect of offences requiring a complaint by the person aggrieved, after the complaint has been filed. Mr. Keswani for Vyas, in support of the abatement of the case, relied upon the analogy of s. 431 under which appeals abate and ss. 247 and 259 under which on the complainanrremaining M17Suq.:.I./66-7 - 810 SUPRl!MI! COURT REPORTS [1967] I S.C.R absent, ~l\e court can acquit or discharge the accused. These analogic; do not avail him because they provide for special situa tions. Inquiries and trials before the court are of several kinds. Section 247 occurs in Chapter XX which deals with the trial of summons cases by a Magistrate and s. 259 in Chapter XXI which deals with trial of warrant cases before Magistrates. Under the former, if summon is issued on a complaint and the complainant on any day remains ab.Im! from the court, unless it decides to proceed with the trial, must acquit the accused. This can only hapJA:n in the trial of cases, which are punishable with imprisonment of less than one year. This not being the trial of a summons case but a committal inquiry, s. 247 neitlier applies nor can it furnish any valid analogy. Similarly, s. 259, which occurs in the Chapter on the trial of warrant cases, that is to say, cases triable by a Magistrate and punishable with imprisonment exceeding one year can furnish no analogy. Under s. 259, if the offence being tried as a warrant case is compoundable or is not cogniz.able the Magistrate may discharge the accused before the charge is framed if the complainant remains absent. Once again this section cannot apply because the Presidency Magistrate was not trying the case under Chapter XXJ. This case was being heard under Chapter XVJll which divides committal cases into two classes (a) those commenced on a police report and (b) other cases. The first kind is tried under the pro cedure laid down in s. 207A. With that procedure we are not concerned. The other cases are tried under the procedure as laid the other provisions of Chapter XVIII. Section 208 of this Chapter provides that in any proceeding instituted otherwise than on police report the Magistrate shall "when the accused appears or is brought before him, proceed to hear the complainant (if any) and take in manner hereinafter provided :111 such evidence as may be produced in support of the prosecution or on behalf of the accused, or as may be called for by the Magis trate." The Magistrate then hears evidence for the prosecution unless he makes an order of commitment and after recording the evidence and eumining the accused (if necessary) frames a charge. He may, after hearing further evidence, which the accused may wish 10 produce (unless for reasons to be recorded, the Magistrate deems it unnecessary to do so) either discharge the accused cancel ling the charge or commit him to stand his trial before the Court of Session. There is no provision about the acquittal or discharge of the accused on the failure of the complainant to attend the court. This is not an omission but a deliberate depart'ure from the Chapters on the trial of summons and warrant cases. In such trials, on the absence of the complainant, the accused is either acquitted or dis charged. The intention appears to be that the Magistrate should proceed with the inquiry because had it not been so intended, the A B c D E F G H • A. N. VYAS v. MAHARASHTRA (Hidayatul/ah, J.) 811 A Code would have said what would happen if the complainant remains absent. Mr. Keswani, however, contends thats. 198 provides that the cognizance of the case can only be taken on the complaint of a person aggrieved and the only exception to this general rule is where the complainant 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 eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint. He contends that what applies to the initia tion of the proceeding must also apply to the continuance of the proceeding. He submits that if cognizance could not be taken unless a complaint was made in the manner provided in. the section, the court cannot proceed with the inquiry unless the same condition continues to exist. In other words, because the section insists on a complaint of a person aggrieved, Mr. Keswani contends that con tinued presence of the person aggrieved throughout the trial is also necessary to keep the court invested with its jurisdiction except in the circumstances mentioned in the proviso and summarised. above. We do not agree. The section creates a bar which has to be removed before cognizance is taken. Once the bar is removed, because the proper person has filed a complaint, the section works itself out. If any other restriction was also there the Code would have said so. Not having said so, one must treat the section as fulfilled and worked out. There is nothing in the Code or in Chapter XVIII which says \\·hat, if any, consequence would follow if the complainant remains absent at ·any subsequent hearing after filing the complaint. In this respect Chapter XVIII is distinctly dis-similar to the Chapters dealing with the trial of summons and warrant cases where it is specifically provided what consequence follows on the absence of the complainant. Mr. Keswani contends that the Presidency Magistrate has made a "substitution" of a new complainant and there is nothing in the Code which warrants the substitution of one complainant for It is true that the Presidency Magistrate has used the another. word "substitute" but that is not the effect of the order. What the Presidency Magistrate has done is to allow the mother to act as the complainant to continue the prosecution. This power was undoubtedly possessed by the Presidency Magistrate because of s. 495 of the Code by which courts are empowered (with some exceptions} to authorise the conduct of prosecution by any person. The words 'any person' would indubitably include the mother of the complainant in a case such as this. Section 198 itself contemp lates that a complaint may be made by a person other than the person aggrieved and there seems to us no valid reason .why in such a serious case we should hold that the death of the complainant puts an end to the prosecution. · B c D E F G H 812 SUPlll!ME COUl.T llEPORTS [1967) I S.C.R. In support of his contention Mr. Keswani has cited some cases of the High Courts in which on the death of the complainant the prosecution was held to have abated. Chief among them are Ishwardas v. Emperor, (I) Ramanand v. Crown (2) and Labhu v. Crown (3). The first of t~ese cases was a prosecution for defama tion and the second a trial for an offence under s. 323, Indian Penal Code. The third followed the second. The first two cases here mentioned were overruled by the Lahore High Court in Jlazara Singh v. Crown(4) wherein it was laid down that such cases do not necessarily abate. Mr. Keswani also relied upon several cases which arose under s. 417(3) and 476 B of the Code of Criminal Procedure in which appeals were held to have abated. We need not refer to these cases because they arose under different cir cumstances and were certainly not inquiries with a view to com mittal under Chapter XVIII of the Code. Mr. Hathi, who appeared on behalf of the State of Maharashtra, drew.our attention to many later cases in which it has been held (dissenting from the cases relied upon by Mr. Keswani) that a criminal complaint does not necessarily abate on the death of the complainant even in those cases where the making of the complaint by the person aggrieved is made a condition precedent by the Code. We need not analyse those cases because, in our opinion, unless the Code itself says what is to happen, the power of the court to substitute another prost:cution agency (subject to such restrictions as may be found) under s. 495 of the Code of Criminal Procedure is always avail able. Reference may, however, be made to the following: Emperor v. Nurmohammed,(') Emperor v. Mauj Din,(6) U Tin Maung and another v. 11ie King, (1) Mohammed Azam v. Emperor (') and In re Rama samier('). None of the cases cited either for the one side or the other directly arose under s. 198 first part in a committal proceeding. The later view is distinctly in favour of allowing the prosecution to continue except in those cases where the Code itslef says that on the absence of the complainant the accused must be either acquitted or discharged. The present is not one of those cases and in our Judgment the Presidency Magistrate was right in pro ceeding with the inquiry by allowing the mother to carry on the prosecution, and under s. 495 the mother may continue the prosecu tion 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 comp lainant when all that the s. 198 requires is the removal. of the bar. The appeal fails and it will be dismissed. Y. P. App.:al dismissed. (l) 7 Cr.L.J. 290. (l) 52 l.C. 797. (5) 8 Cr.LJ. 19J. (7) A.I.R. 19~1 Rang. 2J2. (2) 4-0 I.e. 1008. (4) I.LR. 2 lab. 27. (6) A.I.R. 1924 I.ah. 12-4 l ah. 7. (8) A.l.R. 1926 lk>m. 178. (9) A.l.R. 16 Cr. L.l. 713. A B c D E F G H