My client approached me after he received a summon and a copy of final report filed by police in a criminal complaint that his late father was fighting during his lifetime against the perpetrators for committing fraud and forgery. My client wanted to continue the prosecution despite the final report.
The question of law involved was “whether legal heir may substitute the deceased complainant in a criminal complaint and pursue it further.”
Case – Chand Devi Daga v. Manju K. Humatani, (2018) 1 SCC 71
Bench – Justice Dr. A.K.Sikri and Justice Ashok Bhushan
Research – Even in case of trial of summons case it is not necessary or mandatory that after the death of complainant the complaint is to be rejected, in exercise of the power under proviso to Section 256(1), the Magistrate can proceed with the complaint. More so, the present is a case where offence was alleged under Sections 420, 467, 468, 471, 120-B and 201 read with Section 34 IPC for which procedure for trial of summons case was not applicable and there is no provision in Chapter XIX “Trial of warrant cases by Magistrates” containing a provision that in the event of death of the complainant the complaint is to be rejected. The Magistrate under Section 249 has power to discharge a case where the complainant is absent. The discharge under Section 249, however, is hedged with condition that “the offence may be lawfully compounded or is not a cognizable offence”. Had the 1973 Code intended that in case of death of complainant in a warrant case the complaint is to be rejected, the provision would have indicated any such intention which is clearly absent.
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