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Bombay High Court

SHABANA SARFARAZ QURESHIversusSARFARAZ IMTIYAZ QURESHI

Decided
Disposal
Dismissed

Holding

The order allowing the legal heir to be substituted as complainant and the prosecution to continue is valid.

Summary

The original complainant, Imtiaz Zahur Ahmed Qureshi, filed a private defamation complaint under IPC sections 499 and 500 against the petitioner, Shabana Sarfaraz Qureshi. After the complainant's death, his son applied to be substituted as the complainant, and the trial court allowed this substitution. The petitioner challenged the order via a writ petition, arguing that the death of the complainant should terminate the prosecution. The High Court examined Sections 256(2) and 302 of the CrPC and relevant precedents, concluding that a legal heir may be substituted and continue the prosecution as an "aggrieved person" under Section 199. The court held that the application was effectively filed under Section 302 and that the trial court's order was proper. Consequently, the writ petition was dismissed.

Issues considered

  • Whether a legal heir of a deceased complainant can be substituted as complainant in a private complaint under the IPC.
  • Whether the substitution permits continuation of prosecution under Sections 256(2) and 302 of the CrPC.

Legislation cited

Subjects

  • defamation
  • private complaint
  • substitution of complainant
  • legal heir
  • CrPC
  • Section 302
  • Section 256
  • Section 199
  • IPC 499
  • IPC 500

Judgment

SMITA       Digitally signed by
            SMITA JOHNSON
JOHNSON     GONSALVES
            Date: 2026.09.24
GONSALVES   18:12:34 +0530




                                  sg                                                                                            wp5069-24

                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CRIMINAL APPELLATE JURISDICTION
                                              WRIT PETITION NO. 5069 OF 2024

                                  Mrs. Shabana Sarfaraz Qureshi

                                  Age: 33 years, Occ.:Housewife
                                  R/o: Arhan Mansion, Room No. 10,
                                  Second Floor, Near Good Luck Dairy,                                           .. Petitioner
                                  Kurla (W), Mumbai 400070.
                                                  Versus
                                  Sarfaraz Imtiyaz Qureshi

                                  Age: Adult, Occ: Business,
                                  R/o: 98, Sayyed Manzil, 3rd floor,
                                  Room NO. 65, S.V.P. Road,
                                  Null Bazar, Mumbai 400003.              .. Respondent
                                                                 …
                                  Mr. Ashif Husain, a/w Mr. Huzer Qureshi and Ms. Shamsunnisa
                                  Khan, for the Petitioner
                                  Mr. Vikas A. Tiwari for the Respondent.
                                  Mr. Tanveer Khan APP for the State.
                                                                                …
                                                     CORAM                                      : ASHISH S. CHAVAN, J.

                                                     RESERVED                                     : 18th SEPTEMBER 2026

                                                     PRONOUNCED:24th SEPTEMBER 2026


                                  JUDGMENT :-
                                  1.  Rule. The Rule is issued by the consent of both parties and

                                  the Petition is taken up for final disposal at the stage of


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admission. The Ld. Counsel for the Respondent waives service

on behalf of the Respondent.

2.   The Petitioner (Original Accused) has challenged an Order

dated 31.08.2023 passed by Ld. Metropolitan Magistrate 69 th

Court, Mazgaon (“Ld. Trial Court”) arising out of an Application

filed by the Respondent for bringing on record legal heir of the

Original Complainant on account of his death.

3.   The Original Complainant, one Imtiaz Zahur Ahmed

Qureshi had filed a private complaint before the Ld. Trial Court

against the Petitioner (Original Accused) for offences punishable

u/s 499 r/w 500 of the Indian Penal Code, 1860 (“IPC”). The

gist of the allegations in the Complaint was that the Petitioner

had implicated the Original Complainant allegedly in a false case

and addressed a communication to the Police Authority

containing several averments which, by the contention of the

Respondent were ex-facie defamatory. This defamatory matter

was also part of Complaint filed by the Petitioner to various

authorities, thereby, defaming the Original Complainant                            and



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lowering his esteem in the eyes of society. Ld. Trial Court issued

process to the Petitioner (Accused) for offences punishable u/s

499 r/w 500 of IPC. During the course of the trial, Original

Complainant Mr. Imtiaz Zahur Ahmed Qureshi expired and his

son, the Respondent herein moved an Application before the Ld.

Trial Court seeking to be substituted in the place of his father as

the Complainant.

      Ld. Trial Court allowed the Application vide the Order

impugned dated 31.08.2023. The Petitioner has invoked the

Writ Jurisdiction of this Court to quash and set aside the

impugned order.

4.    Heard Mr. Husain for the Petitioner, Mr. Tiwari for the

Respondent and Mr. Khan, APP for the State. Perused the

record.

5.    The short point that arises for my consideration is whether

the legal heir of the Complainant in a private complaint for

offences punishable under the IPC can, upon the death of the

Complainant     be substituted in his place and stead and can



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continue to prosecute the Complaint. With the assistance of the

Ld. Counsels for the respective parties, I have perused the

Application preferred by the Respondent, son of the Original

Complainant dated 29.11.2022 making a prayer to be

substituted in the name and stead of his late father. I have also

perused the impugned order dated 31.08.2023. The application

for substitution of the Complainant is premised on the

contention that death of the Complainant does not ipso facto

terminate the prosecution. The legal heir is as much aggrieved as

his father by the imputations made by the Accused because by

those imputations the reputation of the family is at stake, his

close relations who are directly or indirectly affected would be

covered by the expression “aggrieved person” as set out in

Section 199 of Code of Criminal Procedure, 1973 (“CrPC”). The

impugned order relies on the settled position of law as

enunciated in Chand Devi Daga & Ors. vs. Manju K Humatani

& Ors.1 which holds that in the event of the death of the

Complainant in a private Complaint, the Complaint need not be


1. 2018 (1) SCC 71


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rejected and a joint reading of Sections 256 (2) and Section 302

of the CrPC certainly empowers the Ld. Trial Court to continue

with the prosecution through legal heir of the Complainant.

6.     The position of law as set out herein above is no longer res

integra. In the case of Chand Devi Daga (supra), the Hon’ble

Apex Court, relying upon another judgment in the case of

Balasaheb K Thackeray & Anr. vs. Venkat @ Babru 2, while

dealing with the issue of whether legal heirs of Complainant can

continue the prosecution, has observed in the conspectus of

Section 256 and 302 of CrPC as under :

       “13. This Court had occasion to consider Sections
       256 and 302 in Balasaheb K. Thackeray & Anr. Vs.
       Venkat @ Babru, (2006) 5 SCC 530. In the above
       case complaint was filed under Section 500 read with
       Section 34 IPC. A petition was filed under Section
       482 of the Code 1973 against the order of issue of
       process in the High Court which was dismissed. SLP
       was filed in this Court in which notice was issued and
       during the pendency of the appeal it was noted that
       complainant had died. It was contended that the
       complaint be dismissed on the ground that
       complainant is dead. This Court in the above context
       referred to Sections 256 and 302. This Court
       repelled the argument of the appellant that complaint
2. 2006 5 SCC 530


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     be dismissed on the ground that complainant had
     died. Following was held in paragraphs 3 to 6:


       "3. Learned counsel for the appellants with
       reference to Section 256 submitted that the
       complaint was to be dismissed on the ground
       of the death of the complainant. As noted
       above learned counsel for Respondent 1's legal
       heirs submitted that the legal heirs of the
       complainant shall file an application for
       permission to prosecute and, therefore, the
       complaint still survives consideration.

       4. At this juncture it is relevant to take note of
       what has been stated by this Court earlier on
       the principles applicable. In Ashwin Nanubhai
       Vyas v. State of Maharashtra with reference to
       Section 495 of the Code of Criminal
       Procedure, 1898 (hereinafter referred to as
       "the old Code") it was held that the Magistrate
       had the power to permit a relative to act as the
       complainant to continue the prosecution. In
       Jimmy Jahangir Madan v. Bolly Cariyappa
       Hindley after referring to Ashwin case it was
       held that heir of the complainant can be
       allowed to file a petition under Section 302 of
       the Code to continue the prosecution.

       5. Section 302 of the Code reads as under:
       "302. Permission to conduct prosecution.-(1)
       Any Magistrate inquiring into or trying a
       case may permit the prosecution to be

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        conducted by any person other than a police
        officer below the rank of Inspector; but no
        person, other than the Advocate General or
        Government Advocate or a Public Prosecutor
        or Assistant Public Prosecutor, shall be
        entitled to do so without such permission:

        Provided that no police officer shall be
        permitted to conduct the prosecution if he
        has taken part in the investigation into the
        offence with respect to which the accused is
        being prosecuted.

        (2) Any person conducting the prosecution
        may do so personally or by a pleader."

        6. To bring in application of Section 302 of
        the Code, permission to conduct the
        prosecution has to be obtained from the
        Magistrate inquiring into or trying a case.
        The Magistrate is empowered to permit the
        prosecution to be conducted by any person
        other than a police officer below the rank of
        Inspector; but no person other than the
        Advocate General or the Government
        Advocate or a Public Prosecutor or Assistant
        Public Prosecutor shall be entitled to do so
        without such permission."


7.   Although, the Ld. Counsel for the Petitioner contended

that the Application does not disclose under which provision of


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law it was filed, a perusal of the Application clearly reveals that it

is filed to seek leave of the Court to bring on record the legal

heir of the Original Complainant. It also sets out the date of

death of the Complainant, accompanied by a copy of the death

certificate along with proof of identity of the proposed

Complainant. In form and substance, the Application can be

construed as an Application u/s 302 of the CrPC. In any event,

whether the substituted Complainant answers the definition of

“aggrieved person” as required by Section 199 as a pre-cursor to

initiate the prosecution for defamation, is a triable issue which

the Petitioner is at liberty to agitate, however, no fault can be

found with the order impugned by the Petitioner. Consequently,

the challenge to the impugned order fails and resultantly, the

Writ Petition is dismissed. Rule stands discharged.




                                                 (ASHISH S. CHAVAN, J.)




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