ORDER
1. “On the death of the complainant in a criminal case does the prosecution abate” is the question of considerable general interest that is provoked in this Miscellaneous Petition filed by the accused in the case seeking to quash the proceedings in P.R.C. No. 1/83 on the file of the court of the Judicial Magistrate of First Class Vayalapad.
2. The facts and circumstances giving rise to this petition are these : Yalakatru Guruvayya Naidu of Dinnemeedapalli in Chittoor District was murdered on the night of 15-8-1980. His son Yalakaturi Venkataramaiah Naidu went to the Kalakada police Station and gave a complaint. The police registered a case in Crl. No. 40/80 of Kalakada Police Station against six accused persons under sections 302, 457 and 380, IPC. After investigation by the Crime Branch CID the case was referred as undetectable on 30-8-1982. Venkatramaiah Naidu the son of the deceased filed a complaint under S. 190, Cr.P.C., before the Judicial Magistrate of 1st Class, Vayalapad, against the same accused persons for offence punishable under sections 302 and 392, I.P.C. The complainant was examined on 3-1-1983 and the case was taken on file against the accused as P.R.C. No. 1/1983 by the Magistrate. Later on 7-1-1983 the sworn statements of P.Ws. 2, 3 and 4 were recorded under S. 202, Cr.P.C. The complainant viz. Venkatramaiah Naidu was murdered on 1-5-1983. Three more witnesses were examined in the case on 8-6-1983 after the death of the complainant. P.W. 2 the widow of the complainant filed a petition Cr.M.P. No. 334/1983 to permit her to continue the prosecution of the case and it was allowed on 5-7-1983. Thereafter, some more witnesses were examined on 27-7-1983, 26-9-1983 and 1-10-1983. The learned First Class Magistrate after considering the material on record came to the conclusion that there was sufficient ground for proceeding against the accused and for issuing process under S. 204, Cr.P.C. He accordingly ordered issue of the process for appearance of the accused under S. 204, Cr.P.C., for offences punishable under sections 302 and 395, I.P.C. The accused have now filed this petition under S. 482, Cr.P.C., seeking to quash the proceedings against them in P.R.C. No. 1/83 for offences under sections 302 and 396, I.P.C.
3. The main contention of the learned counsel for the accused petitioners is that on the death of the complainant in a criminal case the prosecution abates and that there is no provision in the Criminal Procedure Code which enables the criminal court to bring on record the legal representatives of the deceased complainant and allow them to continue the prosecution. He submits that on the death of a complainant, particularly in a case exclusively triable by a Court of Session, the magistrate who is bound to call upon the complainant alone to produce all his witnesses under the proviso to S. 202(2), Cr.P.C., is bound to dismiss the complaint as there is no complainant who can be asked to produce his witness. It is, therefore, necessary to look at the relevant provisions of the Code. Chapter XIV, Criminal Procedure Code deals with conditions requisite for initiation of proceedings. Section 190 contains the general provision and applies to all offences unless there is any special provision to the contrary. Sections 195, 198, 199, etc., contain special provisions for the prosecution of offences against public justice, for offence of adultery and for defamation respectively.
4. One of the methods of taking cognizance of an offence under S. 190(1)(a), Cr.P.C. by the Magistrate is by receiving a complaint of facts constituting an offence.
5. Chapter XV prescribes the procedure to be followed by the magistrate on receipt of complaints. The object of the procedure under this chapter is the separation of unfounded from substantial cases at the outset and to prevent innocent persons from being brought into court and subjected to annoyance on frivolous charges. On receipt of a complaint, the magistrate may either enquire into the case himself or direct the investigation to be made by a police officer under S. 202(1), Cr.P.C., on examination of the complainant and his witnesses and the result of the enquiry or investigation, if any, the magistrate may dismiss the complaint under S. 203, Cr.P.C., if there is no sufficient ground for proceeding. On the other hand, if he finds that there is sufficient ground for proceeding, he shall order issue of process under S. 204, Cr.P.C. Section 249, Cr.P.C., provides for the discharge of the accused if the complainant is absent in a case triable as a warrant case. Section 256 provides for the consequences of non-appearance of the complainant in a summons case. It provides for the acquittal of the accused in the case of absence of the complainant unless the magistrate for some reason thinks it proper to adjourn the hearing of the case to some other day. Sub-section (2) of S. 256 no doubt provides that the complainant’s death ends proceedings in a summons case. Section 394 only provides that on the death of the accused every appeal under S. 377 or 378 shall abate. There is no provision in the Code that props the proposition that the complainant’s death ends the proceedings in a warrant case or a case exclusively triable by a court of session.
6. Proceedings under Chapter XV, Cr.P.C., are not proceedings between the complainant and the accused. They are proceedings intended for separation of the unfounded from substantial cases at the outset by the magistrate, so that innocent persons may not be brought before the court and subjected to annoyance on frivolous charges. The proceedings are intended to satisfy the magistrate that there is sufficient ground for proceeding with the case and the issue of process against the accused persons. It is only after the issue of process there is commencement of proceedings against the accused. Section 302, Cr.P.C., enables the magistrate enquiring into or trying a case to permit any person to conduct the prosecution.
7. There is no foundation proposition that the prosecution ends on the death of a complainant in a criminal case.
8. The Supreme Court in Ashwin v. State of Maharastra, had occasion to consider the consequence of death of a complainant in a case exclusively triable by a Court of Session. Hidayatullah J. (as he then was) speaking for the Bench observed (at p. 944) of Cri LJ.
“What happens on the dea
th of complainant in a case started on complaint has to be inferred generally from provisions of Code. There is no provision in Criminal Procedure Code or Chapter 18 thereof about acquittal or discharge of accused on failure of complainant or discharge of accused on failure of complainant to attend, which is deliberate department from chapters on trials of summons and warrant cases suggesting that magistrate should proceed with committal enquiry although complainant is absent. Though court cannot substitute a new complainant it has power under S. 495 to authorise conduct of prosecution by any person.”
9. The Madras High Court In Re Narayana Naick AIR 1931 Mad 772(1) held that a private complaint does not abate on the death of the complainant. To the same effect is the decision of Pyling J., In Re. Ramasamier (1915) 16 Cri LJ 713 (Mad) in a more recent case, Krishnaswami Reddy in A. R. Balasubramanian v. Palani 1969 Cri LJ 1297 (Mad) observed (at P. 1298).
“In respect of cognizable offences, any person unless he is specially prohibited under any of the provisions of the Criminal Procedure Code or by any other special law, can prefer a complaint before the magistrate or give information to the police. In a cognizable offence, every citizen of the public is interested to bring the offenders to justice. There cannot be a bar for any member of the public to come forward asking for permission to conduct prosecution, when especially the complainant is not alive or even if alive with the consent of such complainant. There is no provision of the Criminal Procedure Code, for the suggestion that the criminal prosecution abates on the death of the complainant.”
The Mysore High Court in Subbamma v. Kannapachari AIR 1969 Mys 221 : (1970 Cri LJ 59) ruled :
“The death of the complainant in a case of non-cognizable offence does not abate the prosecution. It is with discretion of the trying magistrate in a proper case to allow the complainant to continue by a proper and fit complainant if the latter is willing.”
10. The Patna High Court in Panchu Swain v. Emperor AIR 1943 Pat 379 observed that there is nothing in Criminal Procedure Code to warrant the view that there is abatement of criminal proceedings on the death of the complainant. Though a case may be started on the complainant of any particular individual and though that case may be compoundable, it is erroneous to compare the case to 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, but it upon a complaint or not, the proceedings must be carried on according to the provisions of the Criminal Procedure Code. Consequently a case under S. 323, IPC, can be proceeded with in spite of the death of the complainant. A similar view was expressed by the Bombay High Court in Mahomed Azam v. Emperor AIR 1926 Born 178 : (27 Cri LJ 491) and by the Allahabad High Court in Musa v. Emperor AIR 1924 All 666(2) : (25 Cri LJ 1007).
11. On an examination of all the relevant provisions of the Criminal Procedure Code and the Judicial precedents on the question, the proposition that criminal proceedings abate on the death of the complainant appears to be legally unfounded and unacceptable. Criminal proceedings legally instituted do not terminate or abate merely on the death of the complainant. The cause of action for civil action bears no analogy to complaints of crime.
12. In this case criminal proceedings were legally initiated by Venkata Ramaiah Naidu on 30-12-1982, before the Judicial Magistrate of 1st Class, Vayalapadu, against the accused in PRC No. 1 of 1983. Merely on the death of the complainant. Venkata Ramaiah Naidu on 1-5-1983 the prosecution does not abate.
13. The learned counsel for the petitioner referred to an unreported decision of this court in Musara Narayana Reddy v. Kanakanti Mal Reddy 1976 (2) APLJ 385 : (1977 Cri LJ 1473) wherein the learned Judge held that the non-examination by the Magistrate under S. 202(2), Cr.P.C., in a case triable by the Court of Session of the witnesses cited by the complainant, but subsequently given up, does not vitiate the proceedings. Another decision referred to by the learned counsel is Dr. S. S. Khanna v. Chief Secretary, Patna . In that case the Supreme Court was concerned with the question whether the proceedings under S. 319, Cr.P.C., can be initiated against a person even after enquiry under S. 202, Cr.P.C., and dismissal of the complaint under S. 203, Cr.P.C. The two cases relied upon by the learned counsel do not relate to the question falling for consideration in this case.
14. In the result, the Crl.M.P. is dismissed and the learned Judicial Magistrate of Ist Class is directed to proceed with the enquiry expeditiously.
15. Petition dismissed.