HIRAK KUMAR GHOSH Vs. JITENDRA KUMAR MANSATA

JUDGEMENT

(1.) THIS Rule is directed against an order of the learned Metropolitan Magistrate, calcutta, dated 9. 9. 76 rejecting an application filed by the petitioner on 21. 7. 76. whereby he, on behalf of a trust wanted to be substituted in place of the previous complainant, Rabindra nath Bhowmick. The complainant, rabindra Nath Bhowmick, filed a petition of complaint on behalf of a trust, winch is named as Rai Bahadur bisseswarlal Motilal Halwasiya Trust-a Public Charitable Trust-having its office at 15, India Exchange Place, calcutta-1, as authorised agent of the said trust making allegations wader sections 427 and 430, I. P. C. against the opposite parties. The complainant retired on 1. 2. 76 and thereupon the present application was filed by the present petitioner for being substituted in place of the previous complainant and to carry on the proceeding on behalf of the trust. In that application dated 21. 7. 76 the present petitioner stated that the complainant had retired and further that he was old and suffering from such illness that he could not come to Court and as such he desired to be substituted to carry on the proceedings against the opposite parties. The opposite parties had no objection to his substitution to represent the trust but they prayed that a condition be imposed that he should be debarred from examining himself as a witness because he was not cited as a witness in the petition of complaint. It, however, appears from the application made by the petitioner that he is actually an eye-witness to the whole occurrence and as such he is competent to depose about what happened on the relevant date of the incident but whether not being cited as a witness in the complaint he should be permitted to the evidence that is for consideration of the learned Magistrate.

(2.) THE learned Magistrate, however, under erroneous belief that the complainant had filed the petition of complaint in his personal capacity having no connection with the trust except as an employee, did not allow his substitution nor even permitted him to carry on the proceedings on behalf of the trust as according to the learned Magistrate there is no provision in the Criminal Procedure Code for substitution of the complainant while he is alive. In the Criminal Procedure Code there is no provision even for substitution in a case where the complainant is dead. But here some explanation has been given by the petitioner why the previous complainant could not attend Court and the explanation given is quite reasonable. The charges are under sections 427 and 430, I. P. C. for causing damage and domination of supply of drinking water in the trust property. These offences are compoundable and can be compounded by the trustee of the said trust. The learned Metropolitan Magistrate seemed to think that as the complainant, Rabindra Nath Bhowmick, had no authority to compound the said offence the present, petitioner also not being a trustee of the said trust who alone is competent to compound an offence and not having any interest in the said trust except as an employee on remuneration, cannot be substituted in place of the complainant who was unable to attend court due to his old age and illness. It is true that the case reported in AIR 1967 S. C. 983 does not apply to the present case inasmuch as that was a case where the offences were sessions trouble, and the commitment enquiry was going on at that time. It was held that there was no bar to carrying on the commitment proceeding in that case although the complainant was dead. But on principle, i think, that case applies. If a criminal case can be filed by a person who is actually not aggrieved, I do not see why the complainant cannot be substituted by another complainant if he is dead or in a case where he is unable to come to court on account of his old age and illness. As the present petitioner desires to be represented on behalf of the trust, surely he can compound the offences which are compoundable with the sanction and authority of the trustees. Therefore, I see no reason why he should not be permitted to be substituted in place of the previous complainant. Moreover, I find, the learned Magistrate had ample powers under section 302, sub-section (1) and (2) of the Code of Criminal procedure. According to those provisions (1) "any Magistrate inquiring into and trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector and (2) Any person conducting the prosecution may do so personally or by a pleader". Therefore, he could have permitted the prosecution to be carried on by the present petitioner also under the provisions of that section.

(3.) IN view of what I have stated above. I set aside the impugned order and send the case back to the earned magistrate to substitute the present petitioner in place of the previous complainant. As there is no provision for substitution of a complainant in the whole of the Criminal Procedure Code, i think, even under my inherent powers tinder section 482 of the Criminal Procedure Code in a proper case I could have mode this order for substitution. The Rule is accordingly made absolute. Let the records be sent down to the court below forthwith.