A.S.NEHRA, J. - (1.) THIS revision petition is directed against order dated 3.1.1992 passed by the Additional Sessions Judge, Ropar by which the revision petition filed by the respondents was allowed and the order passed by the Judicial Magistrate First Class, Ropar dated 29.7.1991 was set aside.
(2.) BRIEFLY stated the facts of the case are : Accused-respondents had been summoned to stand their trial under Sections 420, 467 and 468 of the Indian Penal Code. Bachan Singh filed an application before the learned Magistrate for impleading him as legal representative of Amrik Chand complainant and to allow him to pursue the complaint filed by Amrik Chand against the accused under Sections 420/467 and 468 of the Indian Penal Code. Bachan Singh has stated in the application that Amrik Chand, complainant had died and before his death he had executed a will dated 10.11.1990 in his favour in lieu of services rendered by him and on the basis of that Will he was the legal heir of the deceased complainant. He further submitted in his application that the complaint cannot be dismissed on the ground of non-appearance of the complainant as he had died and, therefore, he is entitled to be impleaded as legal representative and pursue the complaint. Application filed by Bachan Singh was contested by the accused. They have stated in the reply that there is no provision of impleading the legal representatives on the death of the complainant in the Criminal Procedure Code and that the application filed by Bachan Singh does not lie and deserves to be dismissed on that ground. After hearing the counsel for the parties, application of Bachan Singh was allowed and he was permitted to pursue the complaint by the Judicial Magistrate Ist Class, Ropar on 29.7.1991. The offences mentioned in the complaint for which the accused were summoned are triable as warrant case. The procedure applicable was in Chapter XIX and the relevant provision is Section 249 which reads as under :- "249. Absence of complaint-when the proceedings have been instituted upon complaint and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused." The Magistrate has been given discretion to discharge the accused if the following conditions are satisfied: 1. The complainant is absent: 2. The offence is compoundable; or 3. is not a cognizable offence and 4. charge has not been framed. The discretion conferred is to discharge the accused. It follows by necessary implication that where the complainant is not absent or where the offence is either cognizable or is not compoundable, it is not open to the Magistrate to discharge the accused. The word 'absent' was interpreted by a Division Bench of Jammu and Kashmir High Court in Ali Dar v. Mohd. Sharif and others, AIR 1966 J&K 60. It was held that the words 'absent' and 'does not appear' come into play when the complainant is in a position to take some decision and either wilfully or due to negligence does not exercise his volition in favour of attending the Court. It is further held that in the case of a person who is dead, there can be no question of his keeping away or not appearing before the Court or anywhere else. In other words it was held that where the complainant had died, he could not be deemed to be absent in the sense explained by the learned Judges of the Division Bench. It is, therefore, concluded that Section 259 of the old Code which is analogous to Section 249 of the present Code, did not empower the Magistrate to dismiss the complaint on account of death of the complainant. The above authority was followed by a learned Judge of this Court in Balbir Kaur v. Dalip Singh, 1987(2) Recent Criminal Reports 601. A comparison of Section 249 with Section 259 of the Code further reveals that while sub-Section (2) of Section 259 expressly lays down that non-appearance of the complainant on account of death is tantamount to non-appearance for the purpose of sub-section (1) of Section 256 of the Code, there is no such provision made in Section 249 of the Code. In Subbamma and another v. V. Kannappachari, AIR 1969 Mysore 221, it was held that the death of the complainant in a case of non-cognizable offence does not abate the prosecution. It was further held that it is within the discretion of the trying Magistrate in a proper case to allow the complaint to continue by a proper and fit complainant if the latter is willing.
(3.) IN view of the interpretation of Section 249 of the Code, it is clear that this provision applies only to a case where the complainant is absent and in that case too the discretion is given to the trial Court to discharge the accused or to continue the proceedings. In a case where the complainant dies, this provision is not attracted. The trial Court, in this case, in the ends of justice allowed Bachan Singh to continue the proceedings in the complaint and the discretion has been judicially exercised by the trial Court. No illegality in the order of the trial Court has been pointed out and the order of the trial Court was justified. In view of the above discussion, I hold that the Additional Sessions Judge, Ropar has erred in law in setting aside the order passed by the trial Court on 29.7.1991. The order under revision passed by the Additional Sessions Judge Ropar dated 3.1.1992 is set aside and the case is remanded to the trial Court for further proceedings in the complaint. Order accordingly;