NANILAL SAMANTA Vs. RABIN GHOSH

JUDGEMENT

(1.) This appeal against an order of acquittal passed by a Magistrate of Alipore on November 21, 1961, was preferred in this Court on January 16, 1961, by the complainant Nanilal Samanta upon obtaining special leave under Section 417(3) of the Code of Criminal Procedure. That leave was granted on February 13, 1962 and by the same order the appeal was admitted on preliminary hearing. Notice of the appeal was served on the accused Respondent on March 4, 1962 and appearance was entered on behalf of Respondent No. 1 on March 13, 1962, by filing a Vakalatnama through Mrs. Archana Sen Gupta Advocate.

(2.) When the 'appeal was remaining pending in this Court on April 1, 1963, an application on behalf of one Premada Samanta (widow, of Nanilal Samanta) was filed stating therein that the complainant appellant Nanilal Samanta died on March 18, 1962 and praying "To allow your petitioner to prosecute the appeal after substituting her name in place of deceased appellant and after serving the copy of this petition on the accused respondents as also on the other legal heir of the deceased namely the appellant's son Satish Chandra Samanta." This application was made after giving notice to Satish Chandra Samanta by registered post and also to the Advocate for Respondent No. 1, and was filed by Mr. Arun Kumar Mukherjee Advocate who was the learned Advocate through whom the appeal had been filed on January 16, '1961; but no Vakalatnama executed by Premada Samanta, on whose behalf the application was made, was filed with that application by the learned Advocate Mr. Arun Mukherjee. On that application my learned brother K.C. Sen J. directed a Rule to issue in terms of the prayer on April 4, 1963. Upon an office report dated April 5, 1963, it was 'directed by that teamed Judge that a Vakalatnama should be filed within time granted by the order. That Vakalatnama has been filed on April 10, 1963. That Rule came up for hearing before me on May 16, 1963 and (directed the Rule to be heard along with the appeal the point involved in the Rule is the same that arises on the preliminary objection in the appeal.

(3.) The Rule and the appeal were heard together on May 29, 1963. Mr. J.M. Banerjee leading Mrs. Archna Sen Gupta on behalf of Respondent No. 1 in the appeal has opposed the Rule for substitution and also took the preliminary point in the appeal by raising the contentions that (1) The complainant to whom the right of appeal has been given by Section 417 (3) of the Code of Criminal Procedure having died, the appeal has abated and should be dismissed on that ground. (2) There is no provision In Criminal Procedure Code for substitution in place of a deceased party and so the prayer for substitution cannot be made in the appeal and the Rule should be discharged. This point needs be disposed of first. Mr. Banerjee's contention that right of appeal under Section 417(3) of the Code of Criminal Procedure is a personal right given to the person on whose complaint cognizance was taken of the alleged offence is borne out by the clear language, of that sub-section which reads: