SUBBAMMA Vs. V KANNAPPACHARI

JUDGEMENT

(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 AIR1967 SC 983 , (1967 )69 BOMLR308 , 1967 CriLJ943 , [1967 ]1 SCR807 , Ashwin Nanubhai Vyas v. State of Maharashtra:

(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: