Holding

The courts below correctly allowed the heirs to continue the prosecution and did not commit any error of law, so the appeal is dismissed.

Summary

The complainant Shaikh Saheblal Mardan filed a criminal complaint under IPC sections 406, 420 and 34 against his daughter Rashida Kamaluddin Syed and son‑in‑law Kamaluddin K. Syed for cheating and breach of trust. The complainant died in 1996 while the case was pending. His three sons applied for permission to continue the prosecution; the trial court allowed this on 23 May 1999, relying on the precedent set in Ashwin Nanubhai Vyas. The order was never challenged and became final. The accused later sought discharge under Section 239 of the CrPC, claiming no prima facie case; the trial court, revisional court and High Court rejected the application. The Supreme Court was approached under Article 136. The Court held that the death of the complainant does not abate the proceeding, that the heirs could validly seek continuation of prosecution, and that the lower courts had not erred in granting permission. Consequently, the appeal was dismissed.

Issues considered

The death of the complainant abates or does not abate criminal proceedings under Sections 406 and 420 IPC.
Whether the legal heirs of a deceased complainant may obtain permission to continue prosecution under Section 302/239 CrPC.
Whether the trial court erred in rejecting the accused's application for discharge on the ground of no prima facie case.
Whether the Supreme Court should entertain the appeal under Article 136.

Legislation cited

Code of Criminal Procedure, 1973s. 204, s. 239, s. 256, s. 302, s. 495
Indian Penal Code, 1860s. 34, s. 406, s. 420

Subjects

criminal breach of trustcheatingdeath of complainantcontinuation of prosecutionSection 239 CrPCArticle 136prima facie caseheir's right

Judgment

) RASHIDA KAMALUDDIN SYED AND ANR. A
v.
SHAIKH SAHEBLAL MARDAN (DEAD) THROUGH LRS. AND ANR.

MARCH 2, 2007

[C.K. THAKKERAND LOKESHWAR SINGH PANTA, JJ.] B

Penal Code, 1860:
•
ss. 406, 420134-Complaint under-Death of complainant-Trial Court
granted permission to son of complainant to continue the prosecution- C
Correctness of-Held, correct-Courts below had not committed any error-
Hence not a fit case for interference under Art.136-Constitution of India,
1950-Code of Criminal Procedure, 1973.

Code of Criminal Procedure, 1973:
D
s.239-Discharge under-Permission granted to son to continue
prosecution on death of complainant-Said order not challenged hence
attained finality-Application for discharge by accused-Dismissed on the
ground that prima facie case was made out against accused-Held, not a fit
case to exercise discretionary jurisdiction under Art.136 of the Constitution. E
Prosecution case was that the appellants who are daughter and son-in-
Iaw of complainant cheated him and also committed breach of trust. He filed
complaint for offences punishable under ss. 406 and 420 r.w. s. 34 IPC. The
trial Court issued process under s. 204 Cr.P.C. During the pendency of the
proceedings complainant died. F
On 23.5.1999, trial Court allowed the application of respondent no.l,
the son of deceased seeking permission to continue prosecution against the
accused persons. That order was not challenged and had attained finality.

On 4.8.2004, appellants-accused made an application under s. 239 G
Cr.P.C. for discharge contending that no case was made out against them.
,. \, The trial Court rejected the application holding that there was a primafacie
case against the accused. The said order was confirmed by the Revisi9nal
Court as well as the High Court. Hence the present appeal.

533 H
534 SUPREME COURT REPORTS [2007] 3 S.C.R.

A Dismissing the appeal, the Court

HELD: 1. The courts below were right in permitting respondent No.I to
continue: the prosecution by proceeding with the complaint. In taking such
decision, the courts had not committed any error of law which deserves
interfernncc by this Court under Article 136 of the Constitution. jPara 271
B [544-F-G]

2.]. The contention of appellant is that the ratio laid down in Ashwin
Nanubhai* would not apply inasmuch as in that case the Court was concerned
with offences punishable under Sections 493 and 496 IPC. The contention
has no force and cannot be accepted. What was considered in Ashwin
c Nanubhai was whether prosecution could be continued by any person other
than the complainant in view of bar of taking of cognizance under Section
198 Cr.P.C. Considering the scheme and Sections 198 and 495 of the Code,
this Court held that such permission could be granted and a person other
than the complainant could be allowed to prosecute the complainant. In the
D instance case, there is no such bar. Moreover, necessary permission was
granted in the year 1997 and there is no infirmity in it. So far as offences
under Sections 406 and 420 are concerned, they are also serious in nature
and are punishable with imprisonment for three years and seven years
respectively. [Paras 17 and 1811541-G; 542-A-B]

£ *Ashwin Nanubhai Vyas v. State of Maharashtra, [19671 I SCR 807
and Jimmy Jahangir Madan v. Bally Cariyapa Hindley (dead) by Lrs., 12004]
12 sec 509, relied on.

K. Thackeray & Anr. v. Venkat @ Babru & Anr., [20061 5 SCC 530,
refern~d to.

F
2.2. On the death of complainant, the case did not abate. It was, therefore,
open to the sons of complainant to apply for continuation of proceedings against
accused persons. By granting such prayer, no illegality has been committed
by the courts. (Para 24] 1544-A-B]

G :3. There is an additional reason as to why the order should not be
interfiered with at this stage. The complainant died in November, 1996.
Immediately thereafter, sons applied for impleadment allowing them to
continue prosecution against the accused persons. The said application was
allow1~d and permission was granted by an order dated 23.5.1997. The said
order was never challenged by the appellants and it had become final. Name
H of the first respondent was entered on 14.5.2000. Thereafter witnesses were
RASHIDA KAMALUDDIN SYED'' SHAIKH SAllEBLAL ~l..IRDAN (DEAD) THROUC.H LRS. fTHAKKER, JJ 535

also examined. In so far as application dated 4.8.2004 of the accused is A
) concerned, it was under Section 239 of the Code which provides for discharge
of accused. The only ground put forward by the accused was that no prima
facie case had been made out against them. In the light of above facts also,
this is not a fit case to exercise discretionary power under Article 136 of the
Constitution. (Para 25) (544-B-D)
B
4. The contention that a civil suit is filed by the complainant and is
pending is also not acceptable. If a civil suit is pending, an appropriate order

- _l
will be passed by the competent Court. That, however, does not mean that if
the accused have committed any offence, jurisdiction of criminal court would
be ousted. Both the proceedings are separate, independent and one cannot abate
or defeat the other. (Para 26) (544-E-F]
c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 283 of
2007.

From the Judgment and Final Order dated 15.12.2005 of the High Court
D
of Judicature at Bombay in Criminal Writ Petition No. 1814 of2005.

Makarand D. Adkar, Vijay Kumar and Vishwajit Singh for the Appellants.·
~
l
Pooja Nanekar, Uday Kumar Sagar, Bina Madhavan (for Lawyer's Knit
& Co.), Sushi! Karanjakar, Gautam Godara (for Ravindra K. Adsure),Aniruddha
E
P. Mayee for the Respondents.

The Judgment of the Court was delivered by

C.K. THAKKER, J. 1. Leave granted.

2. The present appeal is filed by the appellants- original accused against
F
the order passed by the Judicial Magistrate, First Class (Court No. 7), Pune
_.j
on August 25, 2004, confirmed by 5th Additional Sessions Judge, Pune on
July I, 2005 and also confirmed by the High Court of Bombay on December
15, 2005.
G
3. To understand the controversy raised in the appeal, relevant facts
may be stated in brief.
... \
4. One Shaikh Saheblal Mardan (hereinafter referred to as 'the
complainant') was resident of Pune. Appellant-accused No. I Smt. Rashida
Kamaluddin Syed is his daughter, and appellant accused-No.2 Kamaluddin K. H
536 SUPREME COURT REPORTS [2007] 3 S.C.R.

A Syed is husband of accused No. I and son-in-law of the complainant. It was
the case of the complainant that he was the owner of a bungalow which he (
sold in May, 1992 through accused No. 2 and deposited the amount of
consideration in Bank. The accused No. 2 dishonestly represented to the
complainant that he was having some proposals of land for sale and he would
get it at a cheaper rate if the complainant was interested in such investment.
B It would earn more profit to the complainant and he would also get exemption
from payment of capital gains. But the complainant wanted to go on Haj
(Saudi Arabia) for a month on June I, 1992. The accused No. 2 again
dishonestly represented to the complainant that he could very well go to tour
.l. .._
and the accused No. 2 would invest the money in suitable and beneficial
c proposals. Relying on such dishonest representations by accused No. 2, the
complainant gave him five blank signed cheques as also withdrawal slips so
as to enable appellant No. 2 to invest amount in purchase of property and
to pay such amount to vendors. It was the case of the complainant that when
he returned from Haj, he found that an amount of Rs. 5,15,000/- had already
been withdrawn by appellant No. 2 but no property was purchased in the
D name of the complainant. On further inquiry, he found that accused Nos. I
and 2 had joined hands and their common intention was to grab money of
the complainant. He made inquiry to appellant No. 2 but the latter gave ~
evasive reply. Moreover, the accused purchased an open plot in the joint r:
name of accused No. I and complainant for Rs.2,70,000/-. Accused No. I also
E sent a notice through her advocate stating therein that the plot was purchased
by her with her own money. She also filed a false complaint on August 28,
1992 against the complainant and his sons for offences punishable under
Sections 384, 511, 504, 506 read with 34 oflndian Penal Code (!PC) alleging
criminal intimidation and extortion. The complainant was thus convinced that
his daughter and son-in-law (accused Nos. I and 2) had cheated him and
F committed criminal breach of trust. He, therefore, filed Criminal Complaint No.
605 of 1993 in the Court of Judicial Magistrate, First Class (A.C. Court), Pune
on March 15, 1993 for offences punishable under Sections 406 and 420 read ~

with 34 !PC. The Judicial Magistrate, First Class after recording statement of
. .;,

complainant issued process under Section 204 of Code of Criminal Procedure,
G 1974 (hereinafter referred to as "the Code"). During the pendency of the
proceedings, however, complainant died in November, 1996.

5. Three sons of deceased-complainant [(i) Shaikh Shaiuddin, (ii) Shaikh
Nuruddin; and (iii) Shaikh Nizamuddin] made an application (Ex. 21) on January
,, ..
17, 1997 for permitting them to continue prosecution against the accused
H persons. The learned Magistrate by an order below Ex. 21 dated May 23, 1999
RASHIDA KAMALUDDIN SYED'· SHAIKH SAHEBLAL MARDAN (DEAD) THROUGH LRS. [THAKKER, J.] 53 7

granted the application relying upon a decision of this Court in Ashwin A
... •t Nanubhai Vyas v. State of Maharashtra, [ 1967] I SCR 807 : AIR (1967) SC
983 and allowed Shaikh Sahabuddin respondent No. I herein to continue the
prosecution against the accused persons. It appears that the said order had
not been challenged by the accused and it had attained finality. Name of
respondent No. 1 was accordingly, entered on May 14, 2000. Prosecution
witnesses were also examined thereafter. On March 3, 2004, written arguments B
were submitted by the appellants-accused praying for their discharge.

;
6. On August 4, 2004, an application was made by the appellants-
.Jt
accused under Section 239 of the Code for their discharge (Ex. I) contending
that no case was made out against them. The said application, however, was
rejected by the Trial Court on August 25, 2004 holding that there was a prima
c
facie case against the accused. Being aggrieved by the said order, the accused
preferred revision which was also dismissed by the Sessions Court observing
that there was a prim a facie case against the accused for offences punish ab le
und.er Sections 406, 420 read with 34 IPC. A Writ Petition against the said
order met with the same fate, which has been challenged in the present D
appeal.

7. On February 6, 2006, when the matter was placed for admission
hearing, the following order was passed by this Court;

"Issue notice returnable within four weeks confined to "the question E
whether the legal heirs could have continued with the complaint."

- 8. Thereafter, on December 4, 2006, the matter was ordered to be placed
r
for final disposal on a non-miscellaneous day in February, 2007. That is how
the matter has been placed before us.
F
9. Reading of the order dated February 6, 2006, extracted hereinabove
~ clearly shows that notice was confined to the question whether the legal heirs
could have continued with the complaint.

10. The learned counsel for the appellants submitted that on the death
.of complainant on November 19, 1996, the proceedings came to be abated. In G
the circumstances, the Court should not have granted prayer of the respondent
-. ...
No. 1 permitting him to continue the prosecution. Such an order is illegal and
unlawful. He also submitted that the application filed by the accused under
Section 239 read with Section 245 of the Code ought to have been allowed
and they ought to have been discharged. Unfortunately, however, the Court
H
II

538 SUPREME COURT REPORTS (2007] 3 S.C.R.

A committed an error and the application was rejected. The said order was
confirmed by the revisional Court as well as by the High Court and all the
orders, therefore, deserve to be set aside.
...
11. Learned counsel for the respondents, on the other hand, supported
the order submitting that an order permitting the first respondent-son to
B continue prosecution could not be said to be illegal or contrary to law. Since
the action was in accordance with law, no fault can be found against it and
the appeal deserves to be dismissed. It was further submitted by the learned
counsel for the first respondent that an application was made by sons of
deceased Shaikh Saheblal in January, 1997 which was allowed by the Trial
C Court in May, 1997 and the first respondent was permitted to continue the
case against the accused. The said order was never challenged by the accused
and it has become final. The name of the first respondent was entered in May,
2000 and even thereafter nothing was done by the appellants. Witnesses were
then examined and an application for discharge was made as late as in
August, 2004 which was rightly rejected. Since the application filed by sons
'
D of deceased Shaikh Saheblal was allowed in May, 1997, there is gross delay
and )aches on the part of the appellants in approaching the Court. Even on
that ground, rejection of application of the appellants could not be said to
be improper. It was further stated that in application for discharge what was
contended by the accused was that no prima facie case had been made out
E against them for offences punishable under Sections 406 and 420 read with
34 !PC. All the Courts held that prima facie case had been made out. No
grievance was made against permitting sons to continue the prosecution nor
anything was stated regarding death of original complainant and the appellants
cannot now be allowed to raise such contention. On all these grounds, a -'
prayer was made to dismiss the appeal.
F
12. In our opinion, the orders passed by the courts below cannot be
said to be illegal, unlawful or contrary to law. It is submitted by the learned
counsel for the appellants that the Trial Court was wrong in relying upon
Ashwin Nanubhai. In peculiar facts and circumstances of the case and keeping
in view the scheme and relevant provisions of the Code of Criminal Procedure,
G 1898 ('old Code'), this Court granted such permission, but the ratio laid down
in that case would not apply to the case on hand. In Ashwin Nanubhai, a
complaint was filed under Section 198 of the old Code by one Kusum for
offences punishable under Sections 417, 493 and 496 ofIPC. It was the case
of Kusum that Vyas went through a sham marriage with her, before a person
H who posed as an Officer from the office of the Registrar for Marriages.
RASHIDA KAMALUDDIN SYED,., SHAIKH SAHEBLAL MARDAN (DEAD) THROUGH LRS. (THAKKER, J] 539

,.~
Subsequently, however, he abandoned her and married another. On being A
questioned, Vyas told her that he had never married her. According to Kusum,
she became pregnant as a result of cohabitation, but in view of her serious
ailment, Vyas took her to a clinic where under medical advice and on certificate
granted by Vyas, an abortion was carried out. She, therefore, filed a complaint
on November I, 1963. Cognizance was taken by the Court. During the pendency
of the case, however, on November 29, 1963, Kusum died of a heart-attack.
B
Her mother, therefore, applied to the Court for substitution as a fit and proper
complainant in the case. She wanted to continue criminal prosecution. The
~A application was strongly objected to by Vyas contending that the trial of
offences under Sections 493 and 496 JPC was governed by Section 198 of the
Code and on Kusum 's death, the complaint should be treated as abated. The c
Presidency Magistrate, however, turned down the objection and decided to
proceed with the case with Kusum's mother as the complainant. Revision filed
by Vyas was dismissed by the High Court of Bombay. Aggrieved accused
approached this Court.

13. Considering the scheme of the Code (old Code) in the light of D
allegations levelled against the accused, this Court held that proceedings
initiated by Kusum could be continued at the instance of her mother.

The Court stated;

"The Code of Criminal Procedure provides only for the death of E
an accused or an appellant but does not expressly provide for the
death of a complainant. The Code also does not provide for the
abatement of inquiries and trials although it provides for the abatement
of appeals on the death of the accused, in respect of appeals under
Sections 411 A(2) and 417 and on the death of an appellant in all F
appeals except an appeal from a sentence of fine. Therefore, what
~
\ happens on the death of a complainant in a case started on a complaint
has to be inferred generally from the provisions of the Code".

14. Dealing with Section 198 of the old Code, this Court said; "The
complaint of Kusum was filed to remove the bar contained in this section G
although for the offence under s. 417 no such bar existed. The offences under
ss. 493 (a man by deceit causing a woman not lawfully married to him to
~ \ believe that she is lawfully married to him and to cohabit with him in that
belief) and 496 (a person with fraudulent intention going through the ceremony
of being married, knowing that he is not thereby lawfully married) are non-
H
cognizable, not compoundable and exclusively triable by Court of Session.
540 SUPREME COURT REPORTS [2007] 3 S.C.R.

A They are serious offences, being punishable with imprisonment extending to
lO and 7 years respectively. The Presidency Magistrate, was not trying the ;.-.
case but only inquiring into it with a view to its committal to the Court of
Session ifthe facts justified a committal. During this inquiry Kusum died. We
have to determine what is the effect of the death of a complainant on an
B inquiry under Chapter XVIII in respect of offences requiring a complaint by
the person aggrieved, after the complaint has been filed".

15. It was further stated; "Mr. Keshwani for Vyas, in support of the
abatement of the case, relied upon the analogy of s. 431 under which appeals
abate and ss. 247 and 259 under which on the complainant remaining absent,
C the court can acquit or discharge the accused. These analogies do not avail
him because they provide for special situations. Inquiries and trials before the
court are of several kinds. Section 24 7 occurs in Chapter XX which deals with
the trial of summons cases by a Magistrate and s. 259 in Chapter XXI which
deals with trial of warrant cases before Magistrates. Under the former, if
summons is issued on a complaint and the complainant on any day remains
D absent from the court, unless it decides to proceed with the trial, must acquit
the accused. This can only happen in the trial of cases, which are punishable
with imprisonment of less than one year. This not being the trial of a summons
case but a committal inquiry, s. 247 neither applies nor can it furnish any valid
analogy. Similarly, s. 259, which occurs in the Chapter on the trial of warrant
E cases, that is to say, cases triable by a Magistrate and punishable with
imprisonment exceeding one year can furnish no analogy. Under s. 259, ifthe
offence being tried as a warrant case is compoundable or is not cognizable
the Magistrate may discharge the accused before the charge is framed if the
complainant remains absent. Once again this section cannot apply because
the Presidency Magistrate was not trying the case under Chapter XXI".
F
The Court proceeded to state;

"This case was being heard under Chapter XVIII which divides
committal cases into two classes (a) those commenced on a police
report and (b) other cases. The first kind is tried under the procedure
G laid down in s. 207 A. With that procedure we are not concerned. The
other cases are tried under the procedure as laid down in the other
provisions of Chapter XVIII. Section 208 of this Chapter provides that
in any proceeding instituted otherwise than on police report the •.? -
Magistrate shall 'when the accused appears or is brought before him,
proceed to hear the complainant (if any) and take in manner hereinafter
H provided all such evidence as may be produced in support of the
RASHIDA KAMALUODIN SYED'· SHAIKH SAHEBLAL MARDAN (DEAD) THROUGH LRS. [THAKKER. J.] 54 J
.... prosecution or on behalf of the accused, or as may be called for by A
,-1
the Magistrate.' The Magistrate then hears evidence for the
prosecution unless he. makes an order of commitment and after recording
the evidence and examining the accused (if necessary) frames a charge.
He may, after hearing further evidence, which the accused may wish
to produce (unless for reasons to be recorded, the Magistrate deems
it unnecessary to do so) either discharge the accused cancelling the B
charge or commit him to stand his trial before the Court of Session.
There is no provision about the acquittal or discharge of the accused
.,~ ....
on the failure of the complainant to attend the court. This is not an
omission but a deliberate departure from the Chapters on the trial of
summons and warrant cases. In such trials, on the absence of the c
complainant, the accused is either acquitted or discharged. The
intention appears to be that the Magistrate should proceed with the
inquiry because had it not been so intended, the Code would have
said what would happen if the complainant remains absent".

16. The Court also considered the provisions of Section 495 of the Code D
(similar to Section 302 of the present Code) and observed that though
Presidency Magistrate used the word 'substitute', it was in effect continuation
of prosecution by the mother. The power was undoubtedly possessed by
Presidency Magistrate under Section 495 of the Code and the Court was
empowered to authorize conduct of prosecution by any person. The Court
stated; E

" ..... The words 'any person' would indubitably include the mother of
the complainant in a case such as this. Section 198 itself contemplates
that a complaint may be made by a person other than the person
aggrieved and there seems to us no valid reason why in such a F
serious case we should hold that the death of the complainant puts
~ an end to the prosecution".

17. The learned counsel for the appellants submitted that the ratio laid
down in Ashwin Nanubhai would not apply inasmuch as in that case the
Court was concerned with. offences punishable under Sections 493 and 496 G
of !PC. They were then triable by a Court of Session. In the instant case, we
..
-1:
are concerned with the case punishable under Sections 406 and 420 of !PC,
triable by a Magistrate of First Class. It was also stated that the Court had
observed that the offences punishable under Sections 493 and 496 were
serious being punishable with imprisonment which may extend to ten and
seven years respectively. H
542 SUPREME COURT REPORTS [2007] 3 S.C.R.

A 18. In our opinion, the submission has no force and cannot be accepted.
What was considered by this Court in Ashwin Nanubhai was whether
prosecution could be continued by any person other than the complainant
in view of bar of taking of cognizance under Section 198 of the Code.
Considering the scheme and Sections 198 and 495 of the Code, this Court held
B that such permission could be granted and a person other than the complainant
could be allowed to prosecute the complainant. In the instance case, there is
no such bar. Moreover, necessary permission was granted in the year 1997
and we find no infirmity therein. So far as offences under Sections 406 and
420 are concerned, they are also serious in nature and are punishable with ~ ·1-
imprisonment for three years and seven years respectively.
c 19. Our attention has also been invited by the learned counsel for the
respondents to a recent case in Jimmy Jahangir Madan v. Bally Cariyapa
Hindley (dead) by Lrs., [2004] 12 SCC 509 : JT (2004) 9 SC 558. In Jimmy
Jahangir, a complaint was filed by one B against the accused under Section
138 of the Negotiable Instruments Act in which cognizance had been taken.
D During trial, however, the complainant died leaving behind her son and
daughter who executed General Power of Attorney in favour of two persons.
The Power-of-Attorney holders filed applications under Section 302 of the
Code permitting them to continue the prosecution. The prayer was contested,
but the Magistrate allowed the application granting permission to continue
E prosecution. The High Court confirmed the order of the Trial Court which was
challenged by the accused in this Court.

20. Though this Court allowed the appeal holding that the courts below
were not justified in granting such permission since it was made by the Power
of Attorney, it was held that a person other than a complainant could continue
JF prosecution. The Court, therefore, while setting aside the orders granted
liberty to the heirs of the complainant to file fresh application under Section
302 of the Code.

Section 302 of the present Code reads thus;

G 302. Permission to conduct prosecu!ion.-{l) Any Magistrate
inquiring into or trying a case may permit the prosecution to be
conducted by any person 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;
H
- RASHIDA KAMALUDDIN SYED v. SHAIKH SAHEBLAL MARDAN (DEAD) THROUGH LRS. [THAKKER. J

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.
1543

A

(2) Any person conducting the prosecution may do so personally
or by a pleader.
B
21. The Court also considered Ashwin Nanubhai and observed;

"The question as to whether heirs of the complainant can be allowed
to file an application under Section 302 of the Code to continue the
prosecution is no longer res integra as the same has been concluded
by a decision of this Court in the case of Ashwin Nanubhai Vyas v. C
State of Maharashtra and Anr., [1967] 1 SCR 807 in which case the
Court was dealing with a case under Section 49 5 of the Code of
Criminal Procedure, 1898, which is corresponding to Section 302 of the
Code. In that case, it was laid down that upon the death of the
complainant, under the provisions of Section 495 of the said Code,
mother of the complainant could be allowed to continue the D
prosecution. It was further laid down that she could make the
application either herself or through a pleader".

22. Reference was also made to Balasaheb K. Thackeray & Anr. v.
Venkat@Babru & Anr., [2006] 5 sec 530 : JT 2006 (7) SC 44, to which one E
of us (C.K. Thakker, J.) was a party. In that case, V filed a complaint against
the accused in the Court of Judicial Magistrate, First Class for commission
of offence punishable under Section 500 read with 34 !PC. The complainant,
however, died in 2005 during the pendency of the proceedings in this Court.
The accused, therefore, made an application under Section 256 of the Code
for dismissal of the complaint on the ground of death of complainant. Legal F
heirs of the complainant submitted that they would make an application
before the Trial Court where the case was pending as the accused had
approached this Court against an interim order and the proceedings were
pending in the Trial Court.

23. This Court considered the provisions of Section 495 of the old Code G
and Section 302 of the present Code as also Ashwin Nanubhai and Jimmy
Jahangir and observed that since the proceedings were pending before the
Trial Court, it was not necessary to express any opinion one way or the other.
It was observed that if any permission would be sought to continue prosecution
by the legal heirs of the deceased, the Court would consider the same in its H
544 SUPREME COURT REPORTS [2007] 3 S.C.R.

A proper perspective and take an appropriate decision in accordance with law.
24. From the above case law, in our opinion, it is clear that on the death
of Shaikh Saheblal, the case did not abate. It was, therefore, open to the sons
of complainant to apply for continuation of proceedings against accused
persons. By granting such prayer, no illegality has been committed by the
B courts.

25. There is an additional reason as to why the order should not be
interfered with at this stage. As we have already noted, the complainant died
in November, 1996. Immediately thereafter, sons applied for impleadment ~
C allowing them to continue prosecution against the accused persons by the
application dated January 17, 1997. The said application was allowed and
permission was granted by an order dated May 23, 1997. The said order was
never challenged by the appellants and it had become final. Name of the first
respondent was entered on May 14, 2000. Thereafter witnesses were also
examined. In so far as application dated August 4, 2004 of the accused is
D concerned, it was under Section 239 of the Code which provides for discharge
of accused. The only ground put forward by the accused was that no prima
facie case had been made out against them. In the light of above facts also,
in our opinion, this is not a fit case to exercise discretionary power under
Article 136 of the Constitution.

E 26. Finally, the contention that a civil suit is filed by the complainant
and is pending has also not impressed us. If a civil suit is pending, an
appropriate order will be passed by the competent Court. That, however, does
not mean that if the accused have committed any offence, jurisdiction of
criminal court would be ousted. Both the proceedings are separate,
F independent and one cannot abate or defeat the other.

27. For the foregoing reasons, we are of the view that the courts below
were right in permitting respondent No. I to continue the prosecution by 1
proceeding with the complaint filed by Shaikh Saheblal. In taking such llecision,
the courts had not committed any error of law which deserves interference
G by this Court under Article 136 of the Constitution.

28. The appeal is, accordingly, dismissed.

D.G. Appeal dismissed.

H