RAVIKUMAR RAJNIKANTBHAI PATEL Vs. VISHAL MANSUKHLAL BHAVANI

JUDGEMENT

(1.) Heard Mr. Ajay Jagirdar, learned advocate for the appellant, Mr. Joshi, learned advocate for the respondent no.1 and Mr. Bhargav Pandya, learned Additional Public Prosecutor for the respondent State.

(2.) This appeal is filed at the instance of the mother of the deceased complainant who has reported to have expired on 25/4/2018, challenging the order dtd. 16/1/2020 passed by the learned Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat in Criminal Case No5570 of 2018, whereby, the learned Judge has dismissed the complaint by treating it as abated in absence of original complainant.

(3.) Mr. Jagirdar, learned advocate for the appellant has invited attention of this Court to the impugned order and has submitted that the Code of Criminal Procedure does not prescribe the proceedings to be abated upon death of the complainant. He further referred to Sec. 394 of the Code of Criminal Procedure which provides for abatement of appeal in case of death of the accused. He therefore, submitted that in absence of any provision of abatement in the case of death of the complainant, the learned Magistrate ought not to have disposed the complaint. He also invited attention of this Court to Sec. 256 of the Code of Criminal Procedure, more particularly, he referred to and relied upon sub-sec. (2) of Sec. 256 and submitted that in case of non appearance of complainant due to his death, at the most the Magistrate could have followed the procedure prescribed under sub- sec. (1) of Sec. 256 . While referring to the Rojkam, he submitted that it was the present applicant who had invited attention of the Magistrate reporting about death of her son pending the proceeding before the trial Court. Learned advocate representing the original complainant had reported to the trial Court about the death of the complainant on 25/11/2019 and after recording aforesaid fact, matter was kept on 16/1/2020. He, therefore, submitted that in absence of the deceased, without giving sufficient opportunity to seek permission under Sec. 302 of the Code of Criminal Procedure, the Magistrate proceeded to treat the proceedings abated by the impugned order dtd. 16/1/2020. He, therefore, urge this Court that the appeal be allowed the impugned order be quashed and set aside.