Ganga Prasd vs Tara Prasad

N.K. Gupta, J.—Heard the learned counsel for the parties finally. The applicant has challenged the order dated 27.10.2010 passed by the learned J.M.F.C. Rewa in Criminal Case No. 4100/09, whereby the application of the applicant was dismissed in which it was prayed that the complaint may be dismissed because the complainant has expired and the concerned sale deed was not declared null and void by the competent Court therefore, the complaint cannot be prosecuted.

After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it would be apparent that the order dated 27.10.2010 was passed on the application filed by the applicant when the respondents have already applied to prosecute with the complaint on behalf of their father, who expired earlier. If the provisions of Section 256 of Cr.P.C. is perused then, it is mentioned that the complaint may be proceeded in absence of the complainant, if the same is represented by an Advocate. If the trial Court finds that the presence of the complainant is not required then, it shall proceed in his absence. The same provision is applicable in the death of the complainant. Under such circumstances, if the legal representative of the complainant are willing to prosecute with the complaint then, due to death of the complainant, the applicant cannot be acquitted and the complaint cannot be dismissed.

The learned counsel for the applicant has placed his reliance upon the order passed by the Single Bench of Karnataka High Court in the case of Subbanna Hegde and Others Vs. Dyavappa Gowda, ] in which, it is laid that in case of death of the complainant, the Magistrate must acquit the accused. However, the order passed by the learned Single Bench of Karnatka High Court does not appear to be a good law because in case of Rashida Kamaluddin Syed and Another Vs. Shaikh Saheblal Mardan (Dead) through Lrs. and Another, in which, the Hon''ble Apex Court has laid that where the prosecution was for the offence punishable under Sections 406 and 420 of IPC, on the death of the complainant pending trial, his sons were allowed to continue the prosecution.

Under such circumstances, in the light of the aforesaid judgment, the order of the Single Bench of any High Court has no force, if it is contrary to law laid by the Hon''ble Apex Court. The learned counsel for the applicant is advised, not to show such an old case law which is impliedly over ruled by the Hon''ble Apex Court. Hence, it cannot be said in general that due to death of the complainant and according to the provisions of Section 256 of Cr.P.C., the complaint would have been dismissed.

So far as the point raised by the learned counsel for the applicant is concerned, that the disputed sale deed is not declared null and void by any competent Court then, the criminal proceedings on the basis of such sale deed cannot be prosecuted but unfortunately, the learned counsel for the applicant could not show any case law in that respect. The Civil and Criminal proceedings are different and such type of criminal proceeding can be prosecuted though, the sale deed is not declared to be null and void. Under such circumstances, there is no illegality or perversity visible in the order dated 27.10.2010 passed by the J.M.F.C. Rewa. There is no basis by which the revision filed by the applicant can be accepted and hence, it is hereby dismissed.