ABDUL HAKIM Vs. STATE

JUDGEMENT

(1.) A complaint was filed under Section 500 I. P. C. by one Mohammad Ishaq against opposite parties Abdul Hakim and Abdul Karim in the Court of Judicial Officer City Meerut. The Court took cognizance of the offence and recorded the statement of the complainant. Process was issued to the opposite parties. It appears that Mohammad Ishaq died on 11th May, 1969. An application was filed on 13. 9. 1969 by Rafeeq Ahmad son of Mohammad Ishaq for permission to continue the prosecution. An objection was filed thereto by the Opposite parties to the effect that in view of Section 198 Cr. P. C. Rafeeq Ahmad should not be allowed to continue the proceedings. The Judicial Officer City held that the provisions of Section 198 Cr. P. C. were not attracted as they referred only to the initial jurisdiction of a court to take cognizance of an offence. He therefore, allowed the application of Rafeeq Ahmad to proceed with the case by his order dated 3rd June, 1970. Abdul Hakim and Abdul Karim being aggrieved by the aforesaid order filed a revision before the Sessions Judge Meerut. Their revision was dismissed on 11. 8. 1970. Now they have come up in revision before this Court.

(2.) I have heard learned Counsel for the parties at considerable length and have also perused the record of the case. On behalf of the applicants it is contended that having regard to the various provisions of the Criminal Procedure Code, the order Passed by the courts below is not warranted in law. Reference has been made to Section 247 Cr. P. C. which authorises a court in a summons case to acquit the accused if the complainant does not appear on the date fixed. Reliance is also placed on Sections 259 Cr. P. C. which authorises a court in a warrant case which is instituted upon complainant, to discharge the accused before framing a charge, if on the date fixed the complainant is absent and the offence is non-cognizable and can be lawfully compounded. I have been referred to a ruling reported in AIR 1916 Patna 152 : 18 Cri LJ 151, Jeetan Dusadh v. Domo Saho. In that case the accused was being tried for an offence under Sections 379, 147 and 323 I. P. C. The complainant had died in the course of the trial His son applied for permission to continue the proceedings. The Magistrate declined to grant the permission and acquitted the accused holding that under Section 247 Cr. P. C. he had no option but to acquit the accused. On reference by the District Magistrate, holding that the matter was one which affected the tranquility of the district it was decided, by the High Court of Patna that Section 247 Cr. P. C. applies primarily to the case of a complainant who is alive and not to the case of a complainant dying before the trial. As Section 247 did not apply at all to a case of this kind, there was nothing to prevent the Magistrate from going on with the proceedings.

(3.) THE next case referred by counsel is reported in A. I. R. 1932 Nag. 72 : 33 Cri LJ 407, Anand Rao v. Gadi. The view expressed in this case was as follows: