ORDER
1. The petitioners were the accused in Criminal Case No. 181/3 of 1967 in the Court of the First Class Magistrate, Raichur. The offence which had been complained of against them was one punishable under Section 7(1) of the Suppression of Immoral Traffic in Women and Girls Act. Process had been issued against the accused and they appeared in response to the summons and were represented by Advocate. In the meanwhile the complainant having died, an application was made on behalf of her brother’s son praying for permission to continue the prosecution. On behalf of the accused a contention has been raised to the effect that on the death of the complainant, the complaint had abated and that the accused had to be acquitted. In support of this contention, reliance appears to have been placed on the provisions of Section 247 of the Code of Criminal Procedure. The Magistrate rejected the contention which had been raised on behalf of the accused and he permitted the brother’s son of the deceased complainant to lead the evidence in support of the complaint. It is against that order of the Magistrate that the present revision petition had been preferred by the accused persons.
2. I have heard Sri Apparao learned Advocate for the respondent. As pointed out by the Supreme Court in para 3 at page 984 of , Ashwin Nanubhai Vyas v. State of Maharashtra:
“The Code of Criminal Procedure provides only for the death of an accused or an appellant but does not expressly provide for the death of a complainant. The Code also does not provide for the abatement of inquiries and trials although it provides for the abatement of appeals on the death of the accused in appeals under sections 411-A (2) and 417 and on the death of an appellant in all appeals except an appeal from a sentence of fine. Therefore, what happens on the death of a complainant in a case started on a complaint has to be inferred generally from the provisions of the Code.”
3. No uniform view appears to have been taken by the High Courts in India, on the question as to whether on the death of a complainant, the complaint abates and on the ground the accused must necessarily be acquitted. The view taken by Madavkar, J in AIR 1926 Bom 178 is that even in case of non-cognizable offence instituted upon a complaint it would be within the discretion of the trying Magistrate in proper cases to allow the complaint to continue by a proper and fit complainant, if the latter is willing. The learned Judge took the view that Section 247 if the Code was applicable primarily to the case of a complainant who was alive but did not appear; it was doubted whether it applied to the case of a complainant that was not alive. While pointing out that the courts would always be on their guard against needless harassment of an accused by substituting a complainant who is not a fit person the learned Judge stated that the trying Magistrate had the discretion in proper cases to allow the complaint to continue by a proper and fit complainant if the latter was willing. This is what has been state at page 179 of AIR 1926 Bom 178, Mohamed Azam v. Emperor:
“But even in the case of non-cognizable offences, such ad for instance bribery, as is pointed out by this Court In re: Ganesh Narayan Sathe (1889) ILR 13 Bom 600 the Code does not intend to confine prosecutions to the persons directly injured………….. On the whole we agree with the view of Chamier C. J., in Jitan Dusadh v. Damoo Sahu AIR 1916 Pat 152, after considering Madho Chowdhry v. Turab Mian, AIR 1915 Cal 263 and Puran Chandra v. Dengar Chandra, AIR 1915 Cal 708 that “it is open to doubt whether S. 247 of the Code was intended to apply to such a case as this. It seems to apply primarily to the case of a complainant who is alive but does not appear……. We are of opinion, therefore that in the present case of a non-cognisable offence instituted upon a complaint, the axiom of action personalis moritur cum persona, in civil law confined to torts, does not apply and that 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. The Courts would always be on their guard against needless harassment of an accused by substituting a complainant who is not a fit person.”
Having regard to the fact that there is no specific provision to the effect that on the death of the complainant the complaint abates, it seems to me that the view taken in AIR 1926 Bom 178 should be accepted as it us supported by sound reasons, if I may say so with great respect.
4. Thus, the view taken by the learned Magistrate in the present case is sustainable and I find no good ground to interfere with the same in revision. This revision petition is dismissed.
5. Revision Dismissed.
