BALASAHEB K THACKERAY Vs. VENKAT ALIAS BABRU WAMANRAO DESHPANDE CHARTHANKAR
LAWS(SC)-2006-7-83
SUPREME COURT OF INDIA (FROM: BOMBAY)
Decided on July 05,2006

BALASAHEB K.THACKERAY Appellant
VERSUS
VENKAT @ BABRU S/O WAMANRAO DESHPANDE CHARTHANKAR Respondents





Cited Judgements :-

RAVIKUMAR RAJNIKANTBHAI PATEL VS. VISHAL MANSUKHLAL BHAVANI [LAWS(GJH)-2023-4-1181] [REFERRED TO]
MRIDULA SINGH VS. STATE OF BIHAR [LAWS(PAT)-2019-3-71] [REFERRED TO]
CHAND DEVI DAGA VS. MANJU K. HUMATANI [LAWS(SC)-2017-11-4] [REFERRED TO]
UJJAL GHOSH VS. STATE OF WEST BENGAL [LAWS(CAL)-2023-1-19] [REFERRED TO]
RASHIDA KAMALUDDIN SYED VS. SHAIKH SAHEBLAL MARDAN [LAWS(SC)-2007-3-8] [REFERRED TO]
SUMIT KANDHARI VS. SURYA INDUSTRIES AND ANOTHER [LAWS(P&H)-2018-11-63] [REFERRED TO]
SUSHILA VS. STATE OF RAJASTHAN [LAWS(RAJ)-2006-10-61] [REFERRED TO]
K CHATHUKUTTY VS. K S PRASANNA VENKATESAN [LAWS(KER)-2006-11-4] [REFERRED TO]
SHRI BABAN VS. KARAN CHANDRAKANT AGRAWAL [LAWS(BOM)-2020-1-365] [REFERRED TO]
NANAK CHAND GAUTAM VS. STATE OF U. P. [LAWS(ALL)-2022-7-228] [REFERRED TO]
BABU RAO VS. NANJUNDA SETTARU [LAWS(KAR)-2012-7-372] [REFERRED TO]
SANJIT KUMAR MISHRA VS. RANJIT MISHRA [LAWS(ORI)-2022-9-143] [REFERRED TO]
KAVITA DEVI VS. STATE OF JHARKHAND [LAWS(JHAR)-2015-8-7] [REFERRED TO]
SAI MOURYA ESTATES & PROJECTS PVT , LTD, & OTHERS VS. STATE OF A P , REP , BY ITS PUBLIC PROSECUTOR,HIGH COURT OF A P , HYDERABAD & ANOTHER [LAWS(APH)-2018-4-12] [REFERRED TO]
BAL KRISHAN JOSHI VS. STATE OF UTTARANCHAL [LAWS(UTN)-2011-8-47] [REFERRED TO]


JUDGEMENT

Arijit Pasayat, J. - (1.)An interesting question as to what is the effect of the death of the complainant arises for consideration in this case. When the matter was listed for hearing, learned Counsel for the appellants submitted that the respondent No. 1, who was the complainant has died and, therefore, the proceedings initiated on the basis of said complainant do not survive. Learned Counsel for the legal heirs of the complainant submitted that they propose to continue the proceedings and file an appropriate application thereof.
(2.)A brief reference to the factual aspects would suffice: Shri Venkat @ Babru (hereinafter referred to as the complainant) filed a private complaint bearing No. R.Crl.C. No. 107 of 1994 on 7.9.1994 against the appellant and four others in the Court of Judicial Magistrate, 1st Class, Sailu, District Parbhani alleging commission of offence punishable under Section 500 read with Section 34 of the Indian Penal Code, 1860 (in short IPC). Subsequently, the complaint against the three reporters was withdrawn and proceedings are continuing against the appellants i.e. the Editor, Printer and Publisher of a newspaper "Dainik Samna". The allegation in the complaint was that the accused persons in furtherance of their common intention had published news in respect of the complainant in their newspaper published from Aurangabad on various dates. It was alleged in the complainant that due to the report, the reputation of the complainant was tarnished and he was defamed. After hearing arguments learned Magistrate issued process by order dated 15.9.1994. A petition under Section 82 of the Code of Criminal Procedure, 1973 (in short the Code) was filed before the Bombay High Court, Aurangabad Bench which was dismissed by the judgment impugned in the appeal. The appellants filed Special Leave Petition (SLP (Crl.) No. 4367 of 2003). After notice, the appeal was admitted on 3.2.2005. When the matter was taken for hearing on 31.5.2006 it was pointed out that the respondent No. 1-complainant had died on 3.8.2005.
Learned Counsel for the appellants with reference to Section 256 of the Code submitted that the complainant was to be dismissed on the ground of the death of the complainant. As noted above learned Counsel for the respondent No. 1s legal heirs submitted that the legal heirs of the complainant shall file an application for permission to prosecute and, therefore, the complainant still survives consideration.

(3.)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. The State of Maharashtra and Anr. 1967 CriLJ 943 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 (dead) by Lrs. 2005 CriLJ 112 after referring to Ashwins case (supra) 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. Section 302 of the Code reads as under:
Permission to conduct prosecution - (1) Any Magistrate inquiring into or trying a case may 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 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.

To bring in application of Section 302 of the Code, permission to conduct prosecution has to be obtained from the Magistrate inquiring into or trying a case. The Magistrate is empowered to permit 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.



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