ASHOK KUMAR Vs. ABDUL LATIF

JUDGEMENT

(1.) Father of the petitioner Rishi Ram filed a complaint against the respondents under Ss.323, 427 and 451 RPC in the trial Court of Sub-Registrar Judicial Magistrate, Jammu on 25-4-1982. During the pendency of the proceedings, the complainant died and his son Ashok Kumar the present petitioner filed an application in the trial Court on 26-11-1984 for permission to continue criminal prosecution against the accused persons which was launched by his father. The trial magistrate vide his order dt. 24-4-1985 directed the prosecuting officer to conduct the proceedings on behalf of the complainant and proceeded with the case till date when the complaint was dismissed allegedly on the ground of the absence of the complaint. Petitioner preferred a revision petition and the learned 1st. Addl. Sessions Judge, Jammu, vide the order of reference has recommended for setting aside the order of the trial Court and prosecution of the complaint in accordance with the provisions of law.

(2.) I have heard the learned counsel for the petitioner and Perused the record. No one has appeared for the respondents.

(3.) It is true that there is no provision for bringing on record the legal representatives of a party in criminal proceedings but as the penal offence committed by a person unless from the nature of it is personal to the complainant is an offence against the society land has to be prosecuted in accordance with the provisions of law till its final disposal. S.495, Cr.P.C. authorises the magistrate to permit any person to conduct the prosecution on behalf of the complainant. The application filed by the son of the complainant namely Ashok Kumar appears to have not been decided and the Prosecuting Officer directed to appear on behalf of the complainant for conducting the case. Once the Prosecuting Officer was directed to appear for to complainant there was no question for dismissing the complaint for the alleged absence of the complainant either under Ss.247 or 259 of the Cr.P.C. Merely on the death of the complainant, the complaint filed by him cannot be dismissed nor the accused acquitted or discharged under S.247 or 259 Cr.P.C. A Division Bench of Calcutta High Court in Smt. Mayabati Haldar v. Rent Controller, Calcutta dealt with the matter and held : AIR 1981 Cal 118 :