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
- Code of Criminal Procedure, 1973 — s. 199, 256(2), 302
- Indian Penal Code — s. 499, 500
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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