J.P. Chaturvedi, J. - (1.) THIS is an application under Section 482 Code of Criminal Procedure by Vimal Kishore Khanna for setting aside an order dated 7th July 1975 passed by the IV Additional Munsif Magistrate, Allahabad, in Criminal case No. 303 of 1975.
(2.) THE facts giving rise to the petition that Dr. Kishun Prasad Srivastava made a complaint under Sections 504 and 506 IPC against the Petitioner Vimal Kishore Khanna in the Court of the Judicial City Magistrate, Allahabad. When the case was pending in that Court the complainant Dr. Kishun Prasad Srivastava died and an application was made by the counsel for the complainant that Dr. Kishun Prasad having died he may be allowed to proceed with the case. On 7th July 1975 the learned Magistrate passed on order allowing the learned Counsel for the complainant to proceed with the case under the provisions of Section 256(2) Code of Criminal Procedure 1973. It is against this order that this petition is directed. The application has been opposed on behalf of the opposite party Sri Ganesh Behari, Advocate, who had represented the complainant in the trial Court. Appearance has also been put in by Vipin Chandra Srivastava son of the deceased Dr. Kishun Prasad Srivastava complainant. It has been pointed out that Vipin Chandra Srivastava has moved an application in the trial Court for impleading him as a complainant and for allowing him to prosecute the case. Section 256 Code of Criminal Procedure 1973 provides : (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 herein before 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 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 provision 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.
(3.) IT follows from the provisions of sub -section (2) of Section 256 that when the complainant has died and cannot appear the Magistrate can adjourn the hearing of the case or may dispense with the personal attendance of the complainant. In the present case the order may be deemed to be one allowing adjournment to the learned Counsel for the complainant. Though the order is not technically correct because after the death of the complainant the learned Counsel for the complainant cannot represent him but under the provisions of Section 256(2) Code of Criminal Procedure he could apprise the Court of the death of the complainant and pray for adjournment of the case. The representatives of the complainant in the course of time could also apply for being impleaded and for permission to prosecute the case. The order, therefore, cannot substantially be said to be illegal.;