# Kodai v. State of U.P. & Anr

- **Citation:** (2025) 5 ILRA 1578
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-09
- **Case number:** Criminal Misc. Writ Petition No. 2588 of 2023
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kodai-v-state-of-u-p-anr-54613
- **Pages:** 7

## Headnote

Criminal Procedure Code, 1973 - Sections
256 & 302 - Death of complainant during
pendency of complaint case - Whether
complaint abates - Legal representative
on basis of Will - Permissibility to
continue prosecution - Held, death of
complainant does not ipso facto terminate
prosecution - Magistrate may, under
Section 302 Cr.P.C., permit any person
including legal heir or legatee to continue
proceedings - No abatement of inquiry or
trial on complainant's death - Heir by Will
entitled to pursue complaint - Petition
dismissed. (Paras 9, 11, 12, 13, 15 and 18)

HELD:
Section 256(1) Cr.P.C. provides that if the
summons have been issued on complaint, and
on the day appointed for appearance of the
accused, or any day subsequent thereto, the
complainant does not appear, the Magistrate
shall 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 the
opinion that the personal attendance of the
complainant is not necessary, the Magistrate
may dispense with his attendance and proceed
with the case. It has been provided in
subsection (2) of Section 256 that the provisions
of sub Section (1) of Section 256 shall, so far as
may be, apply also to cases where the nonappearance of the complainant is due to his
death. (Para 9)

In view of above, on the death of the
complainant, the criminal prosecution does not
put to end and the prosecution can be permitted
to be continued by the Magistrate, before whom
the proceedings are pending and it may be
permitted to be continued through Advocate
General or Government Advocate or a Public
Prosecutor or Assistant Public Prosecutor as
there is no provision of abatement of inquiry
and trial in absence of the complainant, whereas
the provision has been made for abatement of
appeal or trial on the death of the accused. It is
for this reason, it does not provide abatement of
the proceedings on death of the complainant,
rather if the complainant does not appear, the
Magistrate shall acquit the accused unless for
some reason he thinks it proper to adjourn the
hearing of the case to some other date;
5 All. Kodai Vs. State of U.P. & Anr.
1579
Provided that the Magistrate is of the opinion
that personal attendance of the complainant is
not necessary and may proceed with the case
dispensing his attendance. It is also in the cases
where the nonappearance of the complainant is
due to his death. The prosecution may be
permitted to be conducted by any person
personally or by a pleader. Thus, on the death
of complainant, his legal representative may
move application for prosecuting the case,
therefore, a legal representative cannot be
debarred only because he is on the basis of a
will in his favour. (Para 11)

Adverting to the facts of the present case, the
complaint has been filed on the ground that the
petitioner, showing himself to be the son after
death of the husband of the complainant, got
his name recorded in the revenue records as
heir, whereas they had no issue and the
accused/petitioner along with his two brothers is
son of Bechai. It is not in dispute that the Will
was executed by the complainant Atwari in favour
of the respondent no.2 in regard to the property,
on which the name had been got recorded by the
petitioner fraudulently as alleged during pendency
of the application of the complainant for mutation
before the Consolidation Officer and after filing of
the
application
by
the
complainant,
the
proceedings in consolidation are going on and the
respondent no.2 is in possession of the property in
dispute of the complainant on the basis of Will.
Thus, he is her legal representative and entitled for
the property-in-dispute on the basis of Will and
entitled to continue with the proceedings on behalf
of the complainant. (Para 18)

Application allowed. (E-14)

List o

## Text

1578 INDIAN LAW REPORTS ALLAHABAD SERIES

35. In view of above discussions, we
alter/modify
the
conviction
of
the
appellants under Sections 302 read with
Section 34 IPC to Section 304-II IPC.
Further the conviction of the appellants
under Section 323 read with Section 34 IPC
is hereby affirmed.

36. Accordingly, the appeal is partly
allowed. The conviction and sentence of
the appellants is altered/modified from
Section 302 read with Section 34 IPC to
Section 304-II IPC. The appellants are
hereby convicted under Section 304-II IPC
and sentenced to undergo seven years
imprisonment and with fine of Rs.10,000/-
each.
All
the
sentences
shall
run
concurrently. The period already undergone
by the appellants shall be adjusted. After
completion of the sentence as has been
modified/altered
by
this
Court,
the
appellants shall be released, if they are not
wanted in any other case.
----------
(2025) 5 ILRA 1578
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.05.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Criminal Misc. Writ Petition No. 2588 of 2023

Kodai ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Durga Prasad

Counsel for the Respondents:
G.A., Alok Singh Chauhan, Anil Kumar, Dr.
Surendra Singh Chauhan

Criminal Procedure Code, 1973 - Sections
256 & 302 - Death of complainant during
pendency of complaint case - Whether
complaint abates - Legal representative
on basis of Will - Permissibility to
continue prosecution - Held, death of
complainant does not ipso facto terminate
prosecution - Magistrate may, under
Section 302 Cr.P.C., permit any person
including legal heir or legatee to continue
proceedings - No abatement of inquiry or
trial on complainant's death - Heir by Will
entitled to pursue complaint - Petition
dismissed. (Paras 9, 11, 12, 13, 15 and 18)

HELD:
Section 256(1) Cr.P.C. provides that if the
summons have been issued on complaint, and
on the day appointed for appearance of the
accused, or any day subsequent thereto, the
complainant does not appear, the Magistrate
shall 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 the
opinion that the personal attendance of the
complainant is not necessary, the Magistrate
may dispense with his attendance and proceed
with the case. It has been provided in
subsection (2) of Section 256 that the provisions
of sub Section (1) of Section 256 shall, so far as
may be, apply also to cases where the nonappearance of the complainant is due to his
death. (Para 9)

In view of above, on the death of the
complainant, the criminal prosecution does not
put to end and the prosecution can be permitted
to be continued by the Magistrate, before whom
the proceedings are pending and it may be
permitted to be continued through Advocate
General or Government Advocate or a Public
Prosecutor or Assistant Public Prosecutor as
there is no provision of abatement of inquiry
and trial in absence of the complainant, whereas
the provision has been made for abatement of
appeal or trial on the death of the accused. It is
for this reason, it does not provide abatement of
the proceedings on death of the complainant,
rather if the complainant does not appear, the
Magistrate shall acquit the accused unless for
some reason he thinks it proper to adjourn the
hearing of the case to some other date;
5 All. Kodai Vs. State of U.P. & Anr.
1579
Provided that the Magistrate is of the opinion
that personal attendance of the complainant is
not necessary and may proceed with the case
dispensing his attendance. It is also in the cases
where the nonappearance of the complainant is
due to his death. The prosecution may be
permitted to be conducted by any person
personally or by a pleader. Thus, on the death
of complainant, his legal representative may
move application for prosecuting the case,
therefore, a legal representative cannot be
debarred only because he is on the basis of a
will in his favour. (Para 11)

Adverting to the facts of the present case, the
complaint has been filed on the ground that the
petitioner, showing himself to be the son after
death of the husband of the complainant, got
his name recorded in the revenue records as
heir, whereas they had no issue and the
accused/petitioner along with his two brothers is
son of Bechai. It is not in dispute that the Will
was executed by the complainant Atwari in favour
of the respondent no.2 in regard to the property,
on which the name had been got recorded by the
petitioner fraudulently as alleged during pendency
of the application of the complainant for mutation
before the Consolidation Officer and after filing of
the
application
by
the
complainant,
the
proceedings in consolidation are going on and the
respondent no.2 is in possession of the property in
dispute of the complainant on the basis of Will.
Thus, he is her legal representative and entitled for
the property-in-dispute on the basis of Will and
entitled to continue with the proceedings on behalf
of the complainant. (Para 18)

Application allowed. (E-14)

List of Cases cited:

1. Ashwin Nanubhai Vyas Vs St. of Maharashtra
reported in AIR 1967 Supreme Court 983

2. Balasaheb K. Thackeray & anr. Vs Venkat @
Babru, s/o Wamanrao Deshpande Charthankar
& anr. reported in (2006) 5 Supreme Court
Cases 530

3. Jimmy Jahangir Madan vesus Bolly Cariyappa
Hindley (dead) by Lrs. reported in (2004) 12
Supreme Court Cases 509

4. Smt. Saroj Gupta & anr. Vs St. of U.P. & anr.
reported in 2006 ADJ 446 (All)

5. Habib Vs St. of U.P. & anr. reported in 2013
(8) ADJ 369

6. Laly Thomas Vs St. of Kerla & ors.; 2010 SCC
Online KER 4988

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Sri Durga Prasad, learned
counsel for the petitioner, learned AGA and
Sri Anil Kumar, learned counsel for the
respondent no.2.

2. This petition has been filed
challenging the order dated 31.01.2023
passed in Criminal Revision No.24 of
2022 (Kodai versus State of U.P. and
others) by Additional District & Sessions
Judge, Court No.3, Ambedkar Nagar and
the order dated 11.01.2022 passed in
Complaint No.883 of 2018 (Atwari versus
Kodai) by Civil Judge (Junior Division)/
Judicial Magistrate, Tanda, Ambedkar
Nagar.

3.
Learned
counsel
for
the
petitioner submits that the complaint can
not be allowed to be prosecuted after death
of the complainant by the person having a
Will in his favour as he can not be said to
be a legal heir of the complainant but
without considering it, the learned trial
court allowed the application of the
respondent no.2 and permitted him to
pursue the complaint. He further submits
that the petitioner challenged the said order
in the revision and the revisional court also
without considering it and the grounds
raised in the revision dismissed the revision
upholding the order passed by the trial
court. Thus, the impugned orders are not
sustainable in the eyes of law and liable to
be set aside.
1580 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Per contra, learned counsel for
the respondent no.2 submits that the
respondent no.2 is entitled for all the
movable and immovable properties of the
complainant on the basis of the Will
executed by her. He further submits that the
complaint was lodged on the ground that
the petitioner has got his name recorded in
the revenue records by playing fraud after
death of her husband, showing him to be
the son, whereas they had no issue. He
further submits that the respondent no.2 has
been
substituted
in
the
pending
Consolidation proceedings in place of the
complainant, which is pending. Thus, the
submission is that respondent no.2 is
entitled to prosecute the case after death of
the complainant as he is the only person to
inherent the properties of respondent no.2
on the basis of will. The learned trial court
has rightly and in accordance with law
permitted him to prosecute the case. The
revisional court has also rightly dismissed
the revision in accordance with law. This
petition has been filed on misconceived and
baseless grounds, which is liable to be
dismissed.

5.
Having
considered
the
submissions of learned counsel for the
parties, I have perused the records.

6. An application under Section
156(3)
of
Criminal
Procedure
Code
(hereinafter referred as 'Cr.P.C.') was filed
by Atwari wife of late Bahaoo alleging
therein that there was no issue of herself
and Bahaoo. After death of husband
Bahaoo
of
the
applicant,
the
accused/petitioner; Kodai showing himself
to be son and with the forged statement and
signatures of the then Gram Pradhan got his
name recorded in the revenue records,
while the Consolidation proceedings were
going on. The applicant after death of her
husband, being the sole legal heir, had
applied
for
mutation
before
the
Consolidation Officer, Jalalpur. During
pendency
of
her
application,
the
accused/petitioner has been treated his legal
heir, whereas he has two other brothers,
namely, Ram Avatar and Ram Pratap and
all the three are sons of Bechai, resident of
Makarha, Police Station
- Atrauliya,
District - Azamgarh.

7.
Admittedly,
the
application
under Section 156(3) Cr.P.C., filed by
Atwari, was registered as a complaint case
and after recording her statement, summons
were issued. The summoning order was
challenged before this court in a petition
under Section 482/378/407 No.453 of 2019
(Kodai versus State of U.P. and another).
Initially, an interim order was passed in the
said petition but subsequently, the said
petition was disposed of by means of the
order dated 24.08.2022 with direction to
appear before the trial court. However, the
petitioner
moved
an
application
for
anticipatory bail before this Court and he
has been granted anticipatory bail by means
of the order dated 21.07.2023 passed in
Criminal
Misc.
Anticipatory
Bail
Application U/S 438 Cr.P.C. No.1621 of
2023.

8. During pendency of the trial, the
complainant
Atwari
had
died
on
12.03.2019, therefore, an application for
continuing the prosecution was filed by the
respondent no.2 on 16.05.2019, on which
after inviting objections and considering,
the application was allowed on the ground
that after summoning of the accused. There
is
no
need
of
appearance
of
the
complainant for deciding the complaint on
merit and the respondent no.2 was
permitted to pursue the matter by means of
the order dated 11.01.2022. The aforesaid
5 All. Kodai Vs. State of U.P. & Anr.
1581
order was challenged by the petitioner in a
revision before the Sessions Court. The
revisional court, considering the pleadings
and grounds taken by the petitioner,
dismissed the revision by means of the
order dated 31.01.2023. Hence, this petition
has been filed.

9. Section 256(1) Cr.P.C. provides
that if the summons have been issued on
complaint, and on the day appointed for
appearance of the accused, or any day
subsequent thereto, the complainant does
not appear, the Magistrate shall 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
the opinion that the personal attendance
of the complainant is not necessary, the
Magistrate
may
dispense
with
his
attendance and proceed with the case. It
has been provided in sub-section (2) of
Section 256 that the provisions of sub
Section (1) of Section 256 shall, so far as
may be, apply also to cases where the
non-appearance of the complainant is due
to his death. Section 256 of the Code of
Criminal
Procedure
is
extracted
hereunder:

"256. Non-appearance or death
of complaint- (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."

10. Section 302 Cr.P.C. provides
that the Magistrate may permit the
prosecution to be conducted by any person
as provided and any person conducting the
prosecution may do so personally or by a
pleader. Section 302 is extracted hereunder:

"302.
Permit
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."

11. In view of above, on the death of
the complainant, the criminal prosecution
does not put to end and the prosecution can
be permitted to be continued by the
Magistrate, before whom the proceedings
are pending and it may be permitted to be
1582 INDIAN LAW REPORTS ALLAHABAD SERIES
continued through Advocate General or
Government
Advocate
or
a
Public
Prosecutor or Assistant Public Prosecutor
as there is no provision of abatement of
inquiry and trial in absence of the
complainant, whereas the provision has
been made for abatement of appeal or trial
on the death of the accused. It is for this
reason, it does not provide abatement of the
proceedings on death of the complainant,
rather if the complainant does not appear,
the Magistrate shall acquit the accused
unless for some reason he thinks it proper
to adjourn the hearing of the case to some
other date; Provided that the Magistrate is
of the opinion that personal attendance of
the complainant is not necessary and may
proceed with the case dispensing his
attendance. It is also in the cases where the
non-appearance of the complainant is due
to his death. The prosecution may be
permitted to be conducted by any person
personally or by a pleader. Thus, on the
death
of
complainant,
his
legal
representative may move application for
prosecuting the case, therefore, a legal
representative can not be debarred only
because he is on the basis of a will in his
favour.

12. The Hon'ble Supreme Court, in
the case of Ashwin Nanubhai Vyas versus
State of Maharashtra reported in AIR
1967 Supreme Court 983, which is by a
three Hon'ble Judges, bench, has held that
there is no provision about the acquittal or
discharge of the accused on the failure of
the complainant to attend the court and in
such trials, on the absence of the
complainant, the accused is either acquitted
or discharged. It has further been observed
that the intention appears to be that the
Magistrate should proceed with the inquiry
because had it not been intended, the Code
would have said what would happen if the
complainant remains absent.

13. The Hon'ble Supreme Court, in
the case of Balasaheb K. Thackeray and
another versus Venkat Alias Babru, s/o
Wamanrao Deshpande Charthankar and
another reported in (2006) 5 Supreme
Court Cases 530, has held that heir of the
complainant can file a petition under
Section 302 of the Code to continue with
the prosecution and the Magistrate is
empowered to permit the prosecution to be
conducted by any person other than a
police officer below the rank of Inspector;
but no person other than Advocate General
or the Government Advocate or the Public
Prosecutor or Assistant Public Prosecutor
shall be entitled to do so without such
permission. Thus, if any, permission is
sought by the legal heirs of the deceased
complainant to continue prosecution, the
same shall be considered in its perspective
by the court dealing with the matter. The
relevant paragraphs no.4, 6 and 7 are
extracted hereunder:

"4. 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 another (AIR 1967 SC
983) 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. (2004 (12) SCC 509)
after referring to Ashwin's 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.
5 All. Kodai Vs. State of U.P. & Anr.
1583

5. Section 302 of the Code reads
as under:

..............................................................
.........................

6. 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.

7. Above being the position, if any
permission is sought for by the legal heirs
of the deceased complainant to continue
prosecution, the same shall be considered
in its perspective by the court dealing with
the matter. It is brought to the notice that
by
order
dated
13.10.2003
further
proceedings before the Magistrate are
stayed. In that background, Mr. Adsure
submitted that the application shall be filed
before this Court. If and when any
application is filed the same shall be dealt
with appropriately. Ordered accordingly."

14. The Hon'ble Supreme Court, in
the case of Jimmy Jahangir Madan vesus
Bolly Cariyappa Hindley (dead) by Lrs.
reported in (2004) 12 Supreme Court
Cases 509, in which the question for
consideration was as to whether an
application under Section 302 of the Code
to continue the prosecution can be filed by
Power-of-Attorney holders or heirs of the
complainant,
considering
the
relevant
provisions and the law on the issue held
that as provided under Section 2(q) of the
Code, the application to continue the
prosecution can be made by the party
himself or by a legally qualified person,
who is authorized to practice in the court
under Advocates Act; or by any other
person which would obviously include a
Power-of-
Attorney
holder
in
which
eventuality such permission can be granted
by the court where the prosecution is
pending only if it is sought by the person
who is entitled to continue the prosecution
and not by the Power-of-Attorney holder.

15. This Court, in the case of Smt.
Saroj Gupta and another versus State of
U.P. and another reported in 2006 ADJ
446 (All), has held that there is no
provision of abatement of inquiries and
trials in absence of the complainant.
Relevant paragraphs 6 and 7 are extracted
hereunder:-

"6. It is, thus, evident that the
death of the complainant does not ipso
facto put an end to a criminal prosecution.

"Actio personalis moritur cum
persona:- Death of complainant does not
terminate a criminal prosecution. The
maxim actio personalis moritur cum
persona of Section 306 of Succession Act,
1925
does
not
apply
to
criminal
prosecutions."

7. There is no provisions of
abatement of inquiries and trials in
absence of the complainant although it
provides abatement of appeal or trial on
the death of the accused, therefore, what
happens on the death of the complainant, in
a case started on a complaint, has to be
inferred generally from the provisions of
the Code."

16. This Court, in the case of
Habib versus State of U.P. and another
reported in 2013 (8) ADJ 369, has taken
the similar view as above. Relevant
paragraph-23 is extracted hereinbelow:
1584 INDIAN LAW REPORTS ALLAHABAD SERIES
 "23.
From
perusal
of
the
aforesaid judgements of the Apex Court, it
is now well settled that on the death of the
complainant, under Section 256(2) Cr.P.C.
cannot
ipso
facto
bring
about
the
termination of the criminal proceeding and
in that case the learned Magistrate is
authorised to exercise his power under
Section 302 Cr.P.C by allowing any person
or prosecution agency for conducting of the
criminal case merely on the death of the
complainant, the complaint filed by him
cannot be dismissed nor the accused
acquitted or discharged under Section 256
or 258 Cr.P.C."

17. The Kerala High Court, in the
case of Laly Thomas versus State of
Kerla and others; 2010 SCC Online
KER 4988, held that a reading of Section
256 of Code itself makes it clear that the
case is proceeded with even after death of
complainant, only because the Magistrate
forms
an
opinion
that
complainant's
attendance is not necessary and attendance
of the complainant is dispensed with.
Therefore, mere Will be no justification in
acquitting accused under Section 256(1) of
the Code on the ground that the
complainant is absent.

18. Adverting to the facts of the
present case, the complaint has been filed
on the ground that the petitioner, showing
himself to be the son after death of the
husband of the complainant, got his name
recorded in the revenue records as heir,
whereas they had no issue and the
accused/petitioner along with his two
brothers is son of Bechai. It is not in
dispute that the Will was executed by the
complainant Atwari in favour of the
respondent no.2 in regard to the property,
on which the name had been got recorded
by the petitioner fraudulently as alleged
during pendency of the application of the
complainant for mutation before the
Consolidation Officer and after filing of the
application
by
the
complainant,
the
proceedings in consolidation are going on
and the respondent no.2 is in possession of
the property in dispute of the complainant
on the basis of Will. Thus, he is her legal
representative and entitled for the propertyin-dispute on the basis of Will and entitled
to continue with the proceedings on behalf
of the complainant.

19. In view of above, learned
courts below have
rightly
and
in
accordance
with
law
passed
the
impugned orders and permitted to the
petitioner to pursue/ do pairvi of the
proceedings of complaint case after
death
of
complainant
Atwari.
The
impugned orders have been passed in
accordance with law by reasoned and
speaking orders, which does not call for
any interference by this Court. The
petition is misconceived and lacks merit.

20. The petition is, accordingly,
dismissed.
----------
(2025) 5 ILRA 1584
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2025

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Election Petition No. 11 of 2022

Prem Pal Singh ...Petitioner
Versus
Prem Pal Singh Dhangar & Ors.
 ...Respondents

Counsel for the Petitioner:
Sanjay Kumar Srivastava, Virendra Singh