KRISHNAJI Vs. BHIMAJI

JUDGEMENT

(1.) This revision is directed against the order of the Munsiff-Magistrate, Hangal and raises a short but important question of law. One Bhimaji Shreepad Tatti filed a complaint under S.500 IPC, against Krishnaji Hanumanth Kamadolli, and the offence was said to be relating to a certain question put to the complainant during the course of a Civil Proceeding. Since Bheemaji Shreepad Tatti was the person aggrieved, he filed the complaint under S.500 IPC. But subsequent to the filing of the complaint, he died. Thereafter, his son Laxman Bhimaji Tatti filed the application before the learned Magistrate that he would pursue the complaint and 'the learned Magistrate allowed that application. The contention on behalf of the accused was that the offence vis-a-vis Bhimaji Sreepad Tatti was a personal one and therefore no longer survived after his death. In short, the argument was that the son of the original complainant could not proceed with the prosecution.

(2.) The learned Magistrate referred to a decision in 17. Tin Maung v. The King AIR. 1941 Rang. 202. and held that the discretion was with the Magistrate to continue with the complaint for which the procedure of a Warrant case was prescribed. The learned counsel for the petitioner, also brought to my notice a decision of the Supreme Court in Ashwin v. State of Maharashtra AIR. 1967 SC. 083. In that case, the complaint was filed by a person aggrieved for the offence under Ss.493 and 496 IPC. exclusively triable by the Sessions. The complainant died and an application was made by his heirs to pursue that complaint. The learned Judges held that the Magistrate could exercise the discretion to proceed with the complaint even at the instance of the heirs of the deceased complainant. They also referred to S.495 of Crl.PC, which authorised conduct of prosecution by any other person. It can however be stated that while deciding that case, their Lordships observed that there was no provision in the Crl.PC or Chapter 18 thereof about the total discharge of the accused on failure of the complainant to attend the proceedings. That was no doubt so in the case "before their Lordships. But in the instant case, as the learned counsel pointed out S.259 which is applicable to a trial of a warrant case, provided for a discretion on the part of the Magistrate to discharge the accused in the event of failure of the complainant to attend the proceeding. Thus, it may not be entirely correct to say that the Crl.PC did not provide, for any provision to discharge the accused on any date the complainant fails to attend the proceeding. But at the same time, S.259 itself indicates that the discretion is left with the Magistrate to proceed with the complaint filed in the absence of the complainant or to discharge the accused. In the instant case, the learned Magistrate has chosen to proceed with the complaint and it cannot be stated that he exercised his discretion in any faulty manner. The learned counsel for the petitioner-accused did not even argue out the case on that question.

(3.) In this view of the matter, the order of the learned Magistrate can neither be considered illegal nor perverse, and no interference need be made in exercise of revisional Jurisdiction. The petition is therefore dismissed.