LOURIYAM LEIPAL SINGH Vs. MANIPUR ADMINISTRATION

JUDGEMENT

(1.) THIS is an application under Section 561 -A, Criminal Procedure Code praying that the proceedings in Criminal Case No. 27 of 1960 pending before the S. D. M., I. W. T. may be quashed.

(2.) ONE N. Leikhon Singh, filed the said criminal case before the S. D. M. on 7.3.1960 against the petitioners herein alleging that on 4.3.1960, during his absence from the house, his wife, petitioner No. 2 eloped with petitioner No. 1 carrying away properties and money amounting to Rs. 767/ - from his house, that the petitioners have been since then living as husband and wife and that they were thus guilty under Sections 380, 494 and 496, I. P. C. The names of the prosecution witnesses were also mentioned in the petition of complaint. The Magistrate registered the case under Sections 494 and 109, I. P. C. He fixed the case for appearance of the petitioners to 1.6.1960. In the meantime, the complainant died. On 1.6.1960, a petition was filed by the deceased complainant's brother stating that the complainant was murdered by petitioner No. 1 on 31.3.1960, that petitioner No. 1 was in jail custody and that permission may be granted to the brother of the deceased to represent the deceased in the criminal case as complainant. The Magistrate granted the said permission. After that the case underwent 3 to 4 adjournments. On 10.8.1960, petitioner No. 2 filed a petition before the S. D. M. praying that she may be discharged under Section 259, Criminal Procedure Code as the complainant was dead. The Magistrate rejected the petition stating that he was unable to go back on his previous order at that stage, as he had allowed the deceased complainant's brother to continue the proceedings. Thereupon, the petitioners have filed the present application under Section 561 -A stating that with the death of the complainant the proceedings abated, that as no witnesses were examined and no charge framed, the case fell within the provisions of section 259, Criminal Procedure Code since the offence under Section 494 was lawfully compoundable and non -cognizable.

(3.) SECTION 259, Criminal Procedure Code provides that, in a warrant case instituted upon complaint if the complainant is absent on the date of hearing and the offence is compoundable and non -cognizable, the Magistrate may, in his discretion, discharge the accused at any time before the charge has been framed. Section 259 deals with a case where the complainant absents himself on the date of hearing. It does not cover a case where it was brought to the notice of the Magistrate on the date of hearing that, before the date of hearing, the complainant died and was therefore unable to appear on the date of hearing. Certainly, it cannot cover a case where it was brought to the notice of the Magistrate that the complainant was murdered by the accused before the date of hearing. In such a case, the Magistrate has to summon the witnesses mentioned in the petition of complaint to see if a prima facie case existed against the accused. Where, therefore, any person representing the deceased complainant was prepared to go on with the case and produce the witnesses, it will be the duty of the Magistrate to allow him to go on with the case. There is no provision in the Criminal Procedure Code for the abatement of a criminal case on the death of a complainant.