- (1.) We had, by our order dated 29.7.2013, framed question regarding the maintainability of the petition filed by one Ajay Kumar claiming himself to be the daughter's son of complainant Bhagwani @ Bhanwati, who had initially preferred the appeal, to continue the appeal in the light of the reported death of the original appellant or the complainant. While framing the issue, we had very well referred to Sections 394 and 302 Cr.P.C. and we had required the learned counsel appearing for the said Ajay Kumar to enlighten us as to whether any legal heir of the complainant could be allowed to be impleaded in place of the appellant in an appeal against acquittal as the provisions of Section 394 Cr.P.C. permit the prosecution of the appeal only against conviction after the death of the appellant by any of his legal heirs after he had, within specified time, sought leave of the Court to prosecute the appeal.
(2.) Sri Dinesh Kumar Yadav, has placed before us unreported Judgment of Bombay High Court in Criminal Misc. Application No. 116 of 1998, Helen Pinheiro Vs. Kamaxi Steel Products, which is dated 15.1.1999 by which the learned Judge, who passed the Judgment, has referred to Section 256 Cr.P.C. and has observed that that particular provision by analogy permitted the impleadment of the heir of the complainant in his place to prosecute the application seeking leave of the court to appeal.
(3.) Section 256 of the Cr.P.C. reads as under:- "256.Non-appearance or death of complainant.- (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.";