VIMAL KISHORE KHANNA Vs. GANESH BEHARI AND ORS.

JUDGEMENT

(1.) THIS is an application under Section 482 Code of Criminal Procedure by Vimal Kishore Khanna for setting aside an order dated 7th July 1975 passed by the IV Additional Munsif Magistrate, Allahabad, in Criminal case No. 303 of 1975.

(2.) THE facts giving rise to the petition that Dr. Kishun Prasad Srivastava made a complaint under Sections 504 and 506 IPC against the Petitioner Vimal Kishore Khanna in the Court of the Judicial City Magistrate, Allahabad. When the case was pending in that Court the complainant Dr. Kishun Prasad Srivastava died and an application was made by the counsel for the complainant that Dr. Kishun Prasad having died he may be allowed to proceed with the case. On 7th July 1975 the learned Magistrate passed on order allowing the learned Counsel for the complainant to proceed with the case under the provisions of Section 256(2) Code of Criminal Procedure 1973. It is against this order that this petition is directed.

(3.) IT follows from the provisions of sub -section (2) of Section 256 that when the complainant has died and cannot appear the Magistrate can adjourn the hearing of the case or may dispense with the personal attendance of the complainant. In the present case the order may be deemed to be one allowing adjournment to the learned Counsel for the complainant. Though the order is not technically correct because after the death of the complainant the learned Counsel for the complainant cannot represent him but under the provisions of Section 256(2) Code of Criminal Procedure he could apprise the Court of the death of the complainant and pray for adjournment of the case. The representatives of the complainant in the course of time could also apply for being impleaded and for permission to prosecute the case. The order, therefore, cannot substantially be said to be illegal.