Legal Heirs Can Substitute Complainant In Complaint Cases & Pursue Prosecution Upon His Death: Orissa High Court

In a landmark decision, the Orissa High Court has ruled that legal heirs of a complainant, where a criminal case is instituted upon complaint, can substitute him upon his death and pursue the case on his/her behalf. A Single Judge Bench of Justice Sashikanta Mishra held,"…notwithstanding absence of a specific provision, the statutory intent of the provisions of the Code is not to foreclose the right of a person to continue with the prosecution upon death of the complainant. In other words, it is impliedly acknowledged that the victim of a crime may die but the crime committed against him does not. Nor does the guilt of the offender get washed away only because the victim is no more. On the contrary, the offender would still remain liable to be prosecuted for his deeds and punished, if found guilty."Brief Facts:The complainant was residing in a house which was registered in the name of his wife. After the death of his wife, who died intestate, the property devolved upon her children. The children executed a registered general power of attorney in favour of the complainant. However, after some days, the mother of his daughter-in-law (wife of his son Sanjit Kumar Mishra) interfered in the matter and allegedly got him evicted from the house. The complainant registered a complaint against such action.After conducting inquiry under Section 200 CrPC, the Trial Court took cognizance of the offence under sections 426/506/34 IPC and summons was issued. The eldest son of the complainant, namely, Ranjit Kumar Mishra was cited as a witness. In the meanwhile, the complainant died while under treatment. Subsequently, his eldest son, Ranjit Kumar Mishra filed a petition seeking to be substituted as a complainant expressing his desire to contest the case. The petition for substitution was opposed by the accused persons, who took the plea that they are eligible to be discharged upon death of the complainant.However, the Court below allowed the petition for substitution by substituting the deceased complainant with Ranjit Kumar Mishra. The accused persons, being aggrieved by such decision of the Trial Court, have preferred the present revision against the order.Petitioners' Contentions:Mr. Devashis Panda, counsel for the petitioners, argued that unlike a civil proceeding, the Code of Criminal Procedure does not recognize substitution of a deceased complainant. Referring to the decision of Ashwin Nanubhai Vyas v. State of Maharashtra, he contended that the Code provides only for dismissal of a complaint upon death of an accused but does not expressly provide for continuance of the complaint thereafter. He submitted that what happens on the death of the complainant, in a case started on a complaint, has to be inferred from the stipulations of the Cr.P.C. Since the Code provides that in the absence of the complainant, the accused must be either acquitted or discharged, the same principle must be applied in the case of death of a complainant.Respondent's Contentions:Ms. Agnisikha Ray, counsel for the respondent, relied upon the decision of the Apex Court in the case of Chand Devi Daga v. Manju K. Humatani (2018) to argue that the provision under Section 249 of the Cr.P.C. which provides for discharge of the accused in the absence of the complainant is applicable only when the offence can be "lawfully compounded or is non-cognizable" but not in respect of non-compoundable offences such as the ones Section 426/506 IPC. She submitted that since the Code is silent as to what would happen in case of death of a complainant in a warrant case, the provision under Section 249 CrPC cannot be made applicable to such cases. Since the original complainant had filed the complaint against the accused persons, the opposite party being the legal heir has got every right to seek continuance of the proceeding upon the death of his father as otherwise, the accused persons would be allowed to go scot-free.Court's Findings:The Court noted that cognizance was taken by the Court below of the offences under sections 426/506/34, IPC. In view of the involvement of Section 506 of IPC, the Court observed that the case is to be tried as per procedure laid down for warrant cases. The Court found substantial force in the argument of counsel for the respondent that there is no direct provision analogous to the one under Section 256 of Cr.P.C, which provides for acquittal of accused in case of summons cases, when the complainant is absent in the time of hearing. Further, the Bench noted that in Balasaheb K. Thackeray & Anr. v. Venkat (2006), it was held that Section 302 CrPC can be invoked to permit the prosecution to be conducted by any person other than a police officer below the rank of inspector; but no person other than the advocate general or the government advocate or a public prosecutor or assistant public prosecutor shall be entitled to do so without such permission of the magistrate. Holding thus, the Apex Court allowed the prayer of the legal heirs of ...

Legal Heirs Can Substitute Complainant In Complaint Cases & Pursue Prosecution Upon His Death: Orissa High Court

Jyoti Prakash Dutta

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