NASEEM Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) By means of present application under Section 482 Cr.P.C., the applicants seek to quash/set aside the order dated 22.03.2014, passed by learned Judicial Magistrate, Roorkee, District Haridwar, as also entire proceedings of complaint case no. 85/2014, under Section 386 IPC, pending before Judicial Magistrate, Roorkee, District Haridwar.

(2.) Complainant instituted a criminal complaint case against the accused. During the pendency of said criminal complaint, at the stage of Section 244 Cr.P.C., complainant died. Complainant's son sought permission to prosecute the accused, which was allowed by the trial court vide order dated 203.2014. Hence present application under Section 482 Cr.P.C.

(3.) Hon'ble Apex Court in Ashwin Nanubhai Vyas v. State of Maharashtra and another, AIR 1967 SC 983, in a similar controversy has held that there is no provision in Code of Criminal Procedure or Chapter 18 thereof about acquittal or discharge of accused on failure of complainant to attend, which is deliberate departure from Chapters on trial of summons and warrant cases, and Magistrate should proceed with committal enquiry although complainant is absent. Bar of Section 198 is removed when aggrieved person files complaint and his presence throughout trial is not necessary. Though Court cannot substitute a new complainant, it has power under Section 495 to authorise conduct of prosecution by any person. Committal enquiry of accused, who was charged for an offence punishable under Indian Penal Code, did not abate on account of complainant's death after filing of complaint and that mother of complainant could be allowed to conduct the prosecution.