- (1.) THIS is a criminal reference by the Additional District Magistrate of Alwar.
(2.) INDER Singh filed a complaint against Rupnarain and 5 others on the 26th of August, 1953, in the Court of the Sub-Divisional Magistrate,rajgarh, with the allegations that the complainant was in possession of land Khasra No. 93/23-4 in village Khoharpuri, and that the accused persons on the 10th of July, 1953, wrongfully and with the use of force dispossessed him. The complaint was transferred by the Sub-Divisional Magistrate to the second Extra Magistrate First Class, Alwar On a number of days which were fixed by the learned Magistrate from time to time the evidence of the complainant was recorded and 16th of March, 1954, was fixed for the remaining witnesses of the complainant on which date the complainant failed to appear and his son appeared in his place and filed an application that INDER Singh, his father, had died on 20th February, 1954, and that his name be substituted in his place and the proceedings continued. The learned Magistrate did not allow the request of INDER Singh's son for bringing him on the record and dismissed the complaint under sec. 247 of the Criminal Procedure Code. Gajraj Singh son of INDER Singh then went to the court of the Additional District Magistrate, Alwar, who has made this reference through the Sessions Judge of Alwar. The point at issue is whether sec. 247 of the Code of Criminal Procedure applies to the cases where a complainant fails to appear on account of his death. It appears that there is a conflict of opinion on this point amongst the High Courts in India. In A. N M Ashraf vs. Surendra Nath Sen (l) Henderson J , after discussing the two decisions of that court in Madho Chowdhuri vs. Turab Mani (A. I. R. 1915 Calcutta 263) and Puran Chandra Moulik vs. Dengar Chandra Pal (A. I. R. 1915 Calcutta 708) observed that there was nothing in the wordings of the section (Sec. 247 Cr. P. C.) to suggest that it had no application when a complainant was dead and that the view taken in Puranchandra Moulik's case had received considerable support in other courts. The learned Judge held that sec. 247 applied even in a case where the complainant failed to appear on account of his death, though on merits the learned Judge held that the dispute was of a civil nature and did not call for interference by that court. In Bontu Appala Naidu vs. Emperor (2) Devadoss J. placed his reliance on the decision in Puran Chandra Moulik vs. Dengar Chandra Pal (A. I. R 1915 Cal. 708) and held that if in "a summons case the complainant is dead during the course of the enquiry, the Magistrate should acquit the accused and should not proceed with the enquiry. In that case the Magistrate had adjourned the case in order to enable the complainant's son to be brought on the record and the High Court held that the action of the Magistrate was Ultra Vires. Similarly, in Hazara Singh vs. Emperor (3) a Division Bench of the Lahore High Court, after having discussed the language of secs. 247 and 259 of the Criminal Procedure Code, observed that these sections would of course apply if the complainant died during the course of proceedings and was, therefore, necessarily absent on the date of the hearing of the case. In that case as the court had taken cognizance of the case on a police report sec. 247 or 259 Cr. P. C. were held not to apply to the case and the Magistrate was, therefore, had to possess jurisdiction to convict the accused persons under sec. 323 I P. C. inspite of the fact that the complainant who had received injuries had died. On the facts of the case the decision is, however, distinguishable but the observation of the learned Judges in that case are very clear in laying down the aforesaid proposition. A contrary opinion has been expressed in Mahomed Azam vs. Emperor (4) in which it has been held that the trying magistrate has discretion in proper cases to allow the son of a complainant to continue the proceedings and that the maxim Actions Personalis Moriour Cum Persona was to apply to civil cases only and not to criminal proceedings. Doubt was expressed as to whether sec. 247 of the Criminal Procedure Code was intended to apply to cases of death of the complainants, and it was further observed that the provision of sec. 247 was intended to apply primarily to the case of a complainant who was alive but failed to appear. In Anand Rao vs. Gadi (5) Jackson J. C. observed that it was doubtful whether sec. 247 applied in a case where the complainant died and the learned Judge further observed that even if sec. 247 applied to such a case there was nothing in the Code to prevent an adjournment of the case to enable another complainant to be substituted in his place. Consequently, it was held that in summons case if the complainant's son appears and states that his father is dead but asks that the case should be proceeded with, the Court can properly grant his request. The decision in Mahomed Azam vs. Emperor (4) was followed. The discussion in the aforesaid decision would show that the provision of sec. 247 has been a subject of controversy. Sec. 247 is as follows - "if the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto, to which the bearing may be adjourned, the complainant does not appear, the Magistrate shall, not withstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day: Provided that, where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance, and proceed with the case. " It may be noted that the language of the section contemplates failure of attendance on the part of the complainant so as to authorise the Magistrate to pass an order of acquittal of the accused. The word "the complainant does not appear" imply volition on the part of the complaint which can be exercised only when he is alived. The complainant, who is dead, cannot be supposed to appear and the framers of sec. 247 could not have conceived of the application of that section in cases of the death of the complainant. I am inclined to hold that provision of sec. 247 has no application to a case where the complaint fails to appear on account of his death and his son or representative in interest applies for bringing his name of the record on the date fixed for the hearing of the case and diligently prosecutes it. In such a case it is open to a magistrate to proceed further with the case and it is not obligatory for him to record an order of acquitted. Upon a notice having been issued against the accused persons to show cause why the order of acquittal passed in their favour by the magistrate be not set aside, they have failed to appear before his court and to show any cause in their favour Gajraj Singh had already made an application before the Magistrate for bringing his name on the record in place of the complainant and to permit him to continue in his place and there was no reason for the magistrate not to have permitted Gajraj Singh to continue the proceedings. This reference is accepted and the order acquittal passed by the Magistrate is set aside and the Extra Magistrate First Class Alwar, is directed to proceed further with the case according to law. after substituting the name of Gajraj Singh in place of that of his father. .;