HARIGANGABEN W/O HARIKISHAND Vs. ALI MUSA MAROTHI

JUDGEMENT

(1.) This application is filed by the widow of the deceased appellant who was the complainant in Criminal Case 1429 of 1980 for an offence punishable under section 500. IPC (defamation). The learned Magistrate had acquitted the accused and hence the complainant had preferred the aforesaid Criminal Appeal which has been admitted. Thereafter the complainant appellant has expired on 1st December 1982. The widow has filed this application on 18th February 1983 for being joined as appellant as the heir of the deceased appellant.

(2.) The learned counsel for the applicant has contended that once a criminal appeal is admitted, it would not abate on the death of the appellant and, therefore, the heir and widow of the appellant can apply for being joined as an appellant. The learned counsel has relied on the case of Khedu Mohton and others v. State of Bihar 1970 (2) SCC 450 In that case the Supreme Court held that once an appeal against an acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact that the appellant either does not choose to prosecute or is unable to prosecute it for some reason or the other. This judgment does not lay down that anyone else can be substituted for the appellant or that the heirs can be brought on record for the deceased appellant.

(3.) In the present case the prosecution was for an offence under Section 500 in Chapter XXI of I.P. Code. Section 199 of Cr. P.C. provides that no court shall take cognizance of an offence punishable under Chapter XXI of the IPC except upon a complaint made by some person aggrieved by the offence. Having regard to this provision only the defamed person can complain to the criminal court and, therefore, only an aggrieved person, namely, the defamed person, can maintain an appeal in such an event. Section 378(4) gives a right of seeking leave to appeal to the complainant and in and offence of defamation, the complainant could only be the aggrieved and the defamed person and, therefore, no one can be substituted in his place.