ASHWIN NANUBHAI VYAS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this appeal, by special leave against the judgment and order of the High Court of Bombay, August 25,1965 the appellant Ashwin Nanubhat Vyas is an accused before the Presidency Magistrate's 4th Court at Girgaon, Bombay. The case was started on the complaint under S. 198. Code of Criminal Procedure of one Kusum Vithal Abhyankar, who charged him with offences under Ss. 417, 493 and 496 of the Indian Penal Code. Kusum's complaint was that Vyas went through a sham marriage with her, before a person who posed as an Officer from the office of the Registrar for Marriages. Subsequently, Vyas abandoned her and married another. On being questioned Vyas told her (Kusum) that he had never married her, as the whole affair was a sham. Kusum alleged that she had become pregnant as a result of the cohabitation but in view of her serious heart ailment Vyas took her to a clinic where under medical advice and on certificate granted by Vyas an abortion was caused to save Kusum's life.

(2.) The complaint was filed on November 1, 1963 and Kusum was examined by the Presidency Magistrate. Vyas was then summoned to Court. On November 29, Kusum unfortunately died of a heart attack. Kusum's mother, who is the 2nd respondent in this appeal, then applied to the Court for substitution as a fit and proper complainant in the case. She expressed her willingness to act as a complainant and to continue the proceedings. This application was strongly resisted by Vyas who contended that the trial of offences under Ss. 493 and 496 of the Indian Penal Code was governed by S. 198 of the Code of Criminal Procedure and only the aggrieved person could be the complainant and on Kusum's death the complaint must be treated as abated. The Presidency Magistrate by his order, April 3, 1964, rejected the objection and decided to proceed with the complaint with Kusum's mother as the complainant. Vyas then filed an application for revision in the High Court at Bombay and by the judgment and order now impugned his petition for revision was rejected. The question that arises in this appeal is whether on the death of Kusum the proceedings ipso facto came to an end or could be continued in the manner ordered by the Presidency Magistrate.

(3.) 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 Ss. 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. The Code by Chapter XV, which is to be found in Part VI (Proceedings in Prosecutions provide for the jurisdiction of criminal court in inquiries and trials). This Chapter is divided into two Parts - A (Place of inquiry or Trial) and B (Conditions requisite for initiation of Proceedings). Part B consists of Ss. 190 to 199-B. S. 190 lays down inter alia that any Presidency Magistrate may take cognizance of any offence upon receiving a complaint of fact which constitutes such offence. Sections 195 to 199-B, however, place certain restrictions upon the power of the Chief Presidency Magistrate and other courts to take cognizance of cases. One such restriction is to be found in S. 198. It provides: