JIMMY JAHANGIR MADAN Vs. BOLLY CARIYAPPA HINDLEY

JUDGEMENT

(1.) THIS reference is made under Section 8 of the Karnataka High Court Act by His Lordship Justice S. R. Bannurmath for deciding three questions formulated by him in view of the law of general importance involved in the reference. The Hon'ble Chief Justice has placed this matter before this Bench for appropriate orders.

(2.) THE questions which are referred for our consideration are:

(3.) THESE questions arise in the backdrop of certain facts which came up for consideration in the said revisions. One Mrs. Bolly Cariappa hindley, an Indian Christian presented a complaint under Section 200 of the Criminal Procedure Code against the accused persons in the court of VI Additional Chief Metropolitan Magistrate, Bangalore, initiating proceedings for an offence punishable under Section 138 of the negotiable Instruments Act ("the Act" for short ). The learned Magistrate has taken cognizance of the offence alleged in the complaint. The complainant died during the pendency of the proceedings. Her son and daughter viz. , respondents herein who are presently staying in United states of America through their general power of attorney holder filed an application under the provisions of Section 302 (1) of the Criminal procedure Code seeking permission to conduct the prosecution initiated by the deceased complainant. This application was opposed by the petitioner-accused inter alia contending that the application is not maintainable; that the provisions of Section 302 deal with the prosecution to be conducted by any person other than the police officer and the present criminal proceeding not being of such nature, the application itself is not maintainable. This proceeding initiated by the complainant for the offence under Section 138 of the Act is the personal litigation and the present applicants cannot come on record as legal representatives, one like under Civil Procedure Code. The complainant being a Christian is governed by the Indian Succession Act and in the absence of probate in the matter, the respondents cannot come on record. At any rate the present application filed by the general power of attorney holder of the applicants itself is not maintainable even if it is held that the applicants are entitled to prosecute the case. The learned Magistrate has rejected all these contentions and allowed the application filed by the respondents, the legality of which is questioned before the learned Single judge in these revisions.