ORDER
T.P.S. Mann, J.
1. On 22-7-1996, FIR No. 597 was lodged by Rajinder Parsad Singla at Police Station, City Ballabhgarh under Sections 365/342, IPC against Jaininder Jain and others, wherein it was stated that Vivek Garg had been abducted by the accused and secretly and forcibly kept confined by them in their factory premises at Ballabhgarh. After the completion of the investigation, a cancellation report was filed by the police in the Court of Judicial Magistrate 1st Class, Faridabad. On 24-4-2003, Rajinder Parsad Singla filed a protest petition. The said Court summbned the accused for having committed offences under Sections 342/323/383/ 506, IPC read with Section 120B IPC. The summoning order was challenged by Jaininder Jain and Ashok Kumar Sethi by filing a revision, which was, however, dismissed by the Court of Sessions on 28-3-2005, Thereafter, when the proceedings were pending in the Court of Judicial Magistrate, Render Parsad Singla died en 23-6-2005, As the proceedings pertained to the illegal confinement of Vivek Garg, present respondent No. 2, he filed an application for permitting him to continue the criminal proceedings against the accused persons in place of Rajinder Parsad Singla, This application was allowed by Judicial Magistrate 1st Class, Faridabad on 11-5-2006. The said order is under challenge in the present petition.
2. Learned Counsel for the petitioner submitted that Rajinder Parsad Singla, who had lodged FIR No. 597 dated 22-7-1996 against the accused had since expired on 23-6-2005 and, therefore, the application filed by Vivek Garg for continuing the criminal proceedings against the accused persons was not maintainable in the eyes of law. The Investigating Agency had already investigated the case and recommended for its cancellation. Necessary application in that behalf was filed in the Court. The protest petition filed by Rajinder Parsad Singla was then treated as a complaint and the accused summoned to face the trial. There was no provision in the Code of Criminal Procedure (for short ‘the Code for substitution of the complainant and therefore, the application of Vivek Garg could not be entertained. Reference was also made to the provisions of Sections 249 and 256 of the Code to contend that once the complainant is not before the Court, the accused have to be discharged from the case. Accordingly, it was prayed that the impugned order passed by Judicial Magistrate on 11-5-2006, while allowing the application of Vivek Garg, be quashed.
3. Learned Counsel for respondent No. 2 submitted that though Rajinder Parsad Singla had lodged the FIR, but it was Vivek Garg, who was the actual complainant, being the victim. He was abducted by the accused and thereafter confined. Since Rajinder Parsad Singla had passed away, Vivek Garg could request the Court to allow him to continue the criminal proceedings as a complainant in the interest of justice.
4. I have heard learned Counsel for the parties and perused the documents placed before me.
5. Section 249 of the Code deals with the situation where during the trial of a warrant case by Magistrate otherwise than on a police report, the complainant absents himself en any day fixed far hearing of the case, the Magistrate has a discretion to discharge the accused, However, such a discretion has to be exercised only in relate to the of-fences which are lawfully compoundable or non-cognizable. In nature, Section 249 of the code is reproduced hereinbelow:
249, Absence of complainant. When the proceedings have been instituted upon complaint, and on any day fixed far 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.
6. In the present case, not all the offences for which the accused had been summoned were lawfully compoundable or non cognizable. Even otherwise, the Magistrate was not bound to discharge the accused but it had a discretion in doing so.
7. Section 256 of the Code, which deals with trial of summons cases by Magistrates does not confer any such power on the Magistrate to discharge the accused but mandates that if the summons has been issued on a complaint and on the day appointed for the appearance of the accused or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall acquit the accused. The said provision is as follows:
256. Non-appearance or death of complainant.- (1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reasons he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
8. This provision of law is also not applicable to the present case as some of the offences for which the accused have been summoned to face trial falls within the definition of warrant case, Thus, neither under Section 249 nor under Section 288 of the Code the accused could be discharged en account of the absence of the complainant or on account of his death or otherwise.
9. New coming to the situation where the person who had filed the complaint had died, It has to be seen that Vivek Garg was the actual victim of the case, The FIR was initially got registered by Rajinder Parsad Singla, Thereafter, the protest petition was filed by the same person. However, as Rajinder Parsed Singla has now died, therefore, Vivek Garg could ask the learned Magistrate for being substituted as a complainant and allowing him to continue the criminal proceedings.
10. In Ram Kishan v. Smt. Prem Lata 1997 (2) RCR 316 : 1997 Cri LJ 3365, it was held that after the death of the complainant, the Magistrate was not empowered to dismiss the complaint and was duty bound to allow the legal representatives to continue with the proceedings. It was held as under (Para 13 of Cri LJ):
This case has to be viewed from another angle. I stated above that Smt. Prem Lata was definitely an aggrieved party after the death of her husband with regard to the property as she inherited prima facie an interest in the property. Her husband was allegedly dispossessed of the property in an illegal manner and, therefore, Smt. Prem Lata could ask the learned Magistrate that she may be substituted as a complainant. Learned Counsel for the respondent relied upon Balbir Kaur v. Dalip Singh 1987 (2) Recent Criminal Reports 601 : 1987 Cri LJ 1555, and submitted that Smt. Prem Lata was an aggrieved party and, therefore, she has the right to ask the Magistrate for her substitution. I have gone through this citation and I am of the view that it has provided help to me in determining as to whether Smt. Prem Lata is an aggrieved party or not or she has a locus standi to request the learned Magistrate for impleading her as a party. In Amrik Chand (died) reptd. by his LRs. v. Karnail Singh 1994 (2) Recent Criminal Reports 390, the scope of Section 249 of the Code of Criminal Procedure was considered. In this case the accused were summoned for the offences under Sections 420 and 468, Indian Penal Code. Thereafter, the complainant died. In these circumstances it was held that the Magistrate was not empowered to dismiss the complaint and was duty bound to allow the legal representatives of the deceased to continue with the proceedings. Reliance was also placed on Balbir Kaur v. Dalip Singh 1987 (2) RCR 601 : 1987 Cri LJ 1555, referred above. It was categorically stated in this very authority that after the issuance of the summons in a case, which was cognizable and not compoundable, if the complainant becomes absent, it is not open for the Magistrate to discharge the accused. The discretion of discharge only vests in the Magistrate if the offence was not cognizable and was compoundable and the charge has not been framed. This is not the position in the present case. Rather on the contrary, the offences were cognizable and one of the offences was not even compoundable. In this view of the matter, I do not see any infirmity in the impugned judgment of the learned Additional Sessions Judge, Ropar, who simply rectified the illegality commited by the learned Magistrate.
11. In Ashwin Nanubhai Vyas v. The State of Maharashtra and Anr. AIR 1967 SC 983 : 1967 Cri LJ 943 it was held that though a Court could not substitute a new complainant, but had power under Section 495 of the Code of Criminal Procedure, 1898 (equivalent to Section 302 of the Code of Criminal Procedure, 1973) to authorise conducting of prosecution by any person. Concluding portion of the said judgment is reproduced hereinbelow (Para 8):
The later 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. 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 her -self 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.
12. In view of the above, there is no merit in the present petition and the same is, accordingly, dismissed.