# Nanak Chand Gautam v. State of U.P. & Anr

- **Citation:** (2022) 8 ILRA 38
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-12
- **Case number:** Application U/S 482 No. 4470 of 2013
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nanak-chand-gautam-v-state-of-u-p-anr-48775
- **Pages:** 5

## Headnote

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 256 & 302 -
Complainant died in a complaint case filed
u/s 138 N.I. Act - Effect - While legal
heirs
of
the
complainant
sought
permission u/s 302 to continue the
prosecution,
the
accused
moved
application
u/s
256
to
dismiss
the
complaint - Application u/s 256 was
rejected and permission u/s 302 was
allowed - Validity challenged - In case of
death of the complainant, the legal heirs
of the complainant could be allowed to
continue
the
prosecution
and
the
complaint cannot be dismissed on the
aforesaid ground - Chand Devi Daga's
case relied upon - High Court found no
error in the impugned order of the trial
court in rejecting the application u/s 256
Cr.P.C. and allowing the legal heirs of the
complainant to prosecute the complaint
under Section 138 N.I. Act. (Para 13 and
14)
Application dismissed. (E-1)
Cases relied on :-

## Text

38 INDIAN LAW REPORTS ALLAHABAD SERIES
not surrender and if the fine has been paid
by him, the State shall refund the amount of
fine.

17. Record and proceedings be sent
back to the Court below forthwith.

18. This Court is thankful to both the
learned Advocates for ably assisting the
Court.
----------
(2022) 8 ILRA 38
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.07.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 4470 of 2013

Nanak Chand Gautam ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rahul Chaturvedi, Sri Jitendra Kumar, Sri
Prasoon Tomar

Counsel for the Respondents:
Govt. Advocate, Sri Suresh Chandra Pandey

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 256 & 302 -
Complainant died in a complaint case filed
u/s 138 N.I. Act - Effect - While legal
heirs
of
the
complainant
sought
permission u/s 302 to continue the
prosecution,
the
accused
moved
application
u/s
256
to
dismiss
the
complaint - Application u/s 256 was
rejected and permission u/s 302 was
allowed - Validity challenged - In case of
death of the complainant, the legal heirs
of the complainant could be allowed to
continue
the
prosecution
and
the
complaint cannot be dismissed on the
aforesaid ground - Chand Devi Daga's
case relied upon - High Court found no
error in the impugned order of the trial
court in rejecting the application u/s 256
Cr.P.C. and allowing the legal heirs of the
complainant to prosecute the complaint
under Section 138 N.I. Act. (Para 13 and
14)
Application dismissed. (E-1)
Cases relied on :-
1. Ashwin Nanubhal Vyas Vs St. of Mah.; AIR
1967 SC 983
2. Jimmy Jahangir Madan Vs Bolly Cariyappa
Hindley; (2004) 12 SCC 509
3. Balasaheb K. Thackeray & anr. Vs Venkat @
Babru; (2006) 5 SCC 530
4. Chand Devi Daga & ors. Vs Manju K.
Humatani & ors.; (2018) 1 SCC 71
(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Prasoon Tomar, learned
counsel for the applicant, Mr. Suresh
Chandra Pandey, learned counsel for the
opposite party no.2 and Mr. Pankaj Kumar
Srivastava and Amit Singh Chauhan,
learned A.G.A for the State and perused the
material available on record.

2. The present application under
Section 482 Cr.P.C. has been filed to quash
the impugned order dated 08.11.2012 by
which the learned Magistrate has rejected
the application No.115B U/s 256 Cr.P.C. in
Criminal Case No.1336/IX/2008 (Radhey
Shyam Agarwal Vs. Nanak Chand Gautam)
U/s 138 N.I. Act, Police Station-Kotwali,
Mathura, pending in the Court of VIth
Judicial Magistrate, Mathura.

3. The records go to show that a
complaint under Section 138 N.I. Act was
filed by Late Radhey Shyam Agrawal
8 All. Nanak Chand Gautam Vs. State of U.P. & Anr.
39
against the applicant, challenging the
proceedings an application No.13672 of
1993 (Nanak Chand Vs. State of U.P.) was
filed before the Hon'ble Court and the
Hon'ble Court on 13.09.1993 stayed the
further proceedings of the criminal case
No.2955/IX/1992, filed under Section 138
N.I. Act. Subsequently, the aforesaid case
was dismissed in default and stay order was
vacated on 02.09.1997. Earlier, on an
application of the applicant, the trial Court
vide order dated 13.03.2006 closed the
evidence of defence of the applicant and
fixed 24.03.2006 as the date for argument.
Thereafter, on 14.04.2006 the applicant
moved an application with the prayer to
provide opportunity for producing evidence
in his defence, on which on 10.09.2008,
last
opportunity
was
given
to
the
applicant/accused for producing evidence
in his defence. On 20.02.2009, the
application of the applicant was rejected
and opportunity for producing evidence
was closed by a detailed order. A Criminal
Revision was filed against the order dated
20.02.2009 in the Court of Sessions Judge,
Mathura on 15.04.2009 and the same was
also dismissed.

4. The complaint was filed by father
of opposite party no.2 on 15.11.1990 and
the
applicant
was
summoned
on
15.08.1991 but due to delaying tactics of
the applicant, the case could not be
decided.
During
pendency
of
the
aforesaid case, the complainant namely,
Radhey
Shyam
Agarwal
expired,
therefore, an application under Section
256 Cr.P.C. was moved by the applicant
on 04.02.2010 before the Court of
Judicial
Magistrate,
Mathura
for
dismissal of the complaint on the ground
of complainant's death. On 05.07.2010,
an objection was filed by son of the
complainant stating therein that the
complaint does not come to an end in
case of death of the complainant on
account of relevant provisions as laid
down in Code of Criminal Procedure.

5. The son of the complainant
namely, Rajeev Agarwal moved an
application dated 20.08.2010 in the Court
concerned for impleading him as legal
representative as the complainant in the
proceedings under Section 138 N.I. Act
being his father had expired. The
application moved by the applicant on
04.02.2010 under Section 256 Cr.P.C. has
been rejected by order dated 08.11.2012
against which the present case has been
filed.

6. Learned counsel for the applicant
submits that in the Code of Criminal
Procedure, 1973 (hereinafter referred to
as "the 1973 Code") there is no provision
which permits legal representatives of
complainant
to
be
substituted
for
prosecuting
the
complaint.
Placing
reliance upon the Section 256 Cr.P.C., he
further submits that the complaint was to
be dismissed on the ground of death of
the complainant. On the other hand,
relying upon provisions of Section 256
Cr.P.C., Section 302 Cr.P.C. as well as the
1973 Code, learned counsel for the
opposite party as well as learned A.G.A.
submit that the 1973 Code does not
contain any provision that on death of
complainant, the complaint cannot be
allowed to be prosecuted by any other
person
including
the
legal
representatives.

7. Learned counsel for the opposite
party no.2 submits that the application
moved for substituting him in place of
complainant, has already been allowed in
the year 2010 and the trial is going on.
40 INDIAN LAW REPORTS ALLAHABAD SERIES

8. I have considered the submissions
made by counsel for the parties and perusal
the records.

9. Before looking into the facts of the
present case, it would be appropriate to
place the extract of Section 256 of the Code
of Criminal Procedure, 1973 as contained
in Chapter XX, which is 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."

10. It would be also appropriate to
discuss the analogous provision to
Section 256 of the 1973 Code as
contained in Section 247 of the Criminal
Procedure Code, 1898. The proviso to
Section 247 was added in 1955 which
said that "where the Magistrate is of the
opinion that personal attendance is not
necessary, he may dispense with such
attendance". By the aforesaid proviso,
the whole thing was left to the discretion
of the Court. Sub Section (1) of 256
contains the above proviso in the similar
manner. Thus, even in case of trial of
summons,
it
is
not
necessary
or
mandatory that after the death of the
complainant the complaint is to be
rejected, in exercise of the power under
proviso to Section 256(1), the Magistrate
can proceed with the complaint. At this
juncture, it is relevant to place the
principles applicable as discussed by this
Court in case of Ashwin Nanubhal Vyas
v. State of Maharashtra with reference
to
Section
495
of
Cr.P.C.
1898
(hereinafter
referred
as
old
code),
reported in AIR 1967 SC 983, wherein it
was held that the Magistrate has power
to permit a relative as complainant to
continue the prosecution. In case of
Jimmy Jahangir
Madan v. Bolly
Cariyappa Hindley, reported in 2004
12 SCC 509, after referring to Ashwin
case, 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, it would be
appropriate to extract Section 302 of the
Code, which reads as under:-

"302. Permission 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
8 All. Nanak Chand Gautam Vs. State of U.P. & Anr.
41
respect to which the accused is being
prosecuted.

(2) Any person conducting the
prosecution may do so personally or by a
pleader."

11. Thus, 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.
Sections 256 and 302 have been considered
in case of Balasaheb K. Thackeray And
Another v. Venkat Alias Babru, reported
in 2006 5 SCC 530, wherein dealing with
the aforesaid provisions, the Court held that
the complaint cannot be dismissed on the
ground that complainant had died.

12. The following has been held in
paragraph 3 to 6 of the aforesaid
judgement, which are as under:

"3. Learned counsel for the
appellants with reference to Section 256 of
the Code submitted that the complaint was
to be dismissed on the ground of the death
of the complainant. As noted above the
learned counsel for Respondent 1's legal
heirs submitted that the legal heirs of the
complainant shall file an application for
permission to prosecute and, therefore, the
complaint still survives consideration.

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. State of
Maharashtra 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 after referring to Ashwin case 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. Section 302 of the Code reads
as under: "302. Permission 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."

6. To bring in application of
Section 302 of the Code, permission to
conduct the prosecution has to be obtained
from the Magistrate inquiring into or trying
a case. 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 the Advocate General or the
Government
Advocate
or
a
Public
Prosecutor or Assistant Public Prosecutor
shall be entitled to do so without such
permission."

13. While dealing with the issue as to
what is the effect of death of the
complainant, the Court in case of Chand
Devi Daga and others v. Manju K.
Humatani and others, reported in 2018 1
SCC 71 has held that in case of death of
the complainant, the legal heirs of the
complainant could be allowed to continue
42 INDIAN LAW REPORTS ALLAHABAD SERIES
the prosecution and the complaint cannot
be dismissed on the aforesaid ground.

14. In view of the above discussion,
this Court is of the opinion that the Court
concerned did not commit any error in
rejecting the application of the applicant
and allowing the legal heirs of the
complainant to prosecute the complaint
under Section 138 N.I. Act.

15. This Court does not find any error
in the order dated 08.11.2012, accordingly,
the application under Section 482 Cr.P.C. is
dismissed. Interim order, granted earlier
stands discharged.

16. However, the concerned Court is
directed to conclude the trial within six
months from the date of production of a
certified copy of this order.

17. Office is directed to communicate
about this order to the Court concerned
forthwith.
----------
(2022) 8 ILRA 42
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Special Appeal No. 117 of 2022

Ghaziabad Development Authority
 ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sri Satendra Tripathi

Counsel for the Respondents:
C.S.C., Sanjay Kumar Mishra, Sri Vibhu Rai,
Sri Anoop Trivedi (Senior Adv.)

A.
Service
Law
-
UP
Development
Authorities
Centralized
Services
Retirement Benefits Rules, 2011 - R. 2(1)
- Pension and other retirement benefit -
Entitlement - Earlier the petitioner was
appointed
on
the
post
of
the
Law
Assistant,
which
was
subsequently
merged and re-designated as Law Officer
- Denial of the Pensionary benefit on the
ground of non-fulfillment of 20 years
qualifying service - Legality challenged -
Division Bench found no error in Judgment
of
Single
Judge
holding
that
writ
petitioner had rendered the qualifying
service of more than 20 years and as such
the decision to deny the writ petitioner
the retiral benefits could not be sustained.
(Para 7 and 9)
Special Appeal dismissed. (E-1)
List of Cases cited:-
1. Special Leave to Appeal (C) No. 1109 of
2022; St. of Guj. & ors. Vs Talsibhai Dhanjibhai
Patel decided on 18.2.2022; 2022 Live Law (SC)
187
(Delivered by Hon'ble Pritinker Diwaker, J.
&
Hon'ble Ashutosh Srivastava, J.)

1. Sri Satendra Tripathi, learned
counsel for the appellant, learned Standing
Counsel for the State-respondents and Sri
Anoop Trivedi, learned Senior Advocate
assisted by Sri Vibhu Rai, learned counsel
for respondent No.2.

2. The present intra Court Appeal has
been
filed
questioning
the
legality,
propriety and correctness of the judgement
and order of the learned Single Judge dated
22.9.2021 passed in Writ-A No. 63 of 2020
(Rajendra Kumar Tyagi vs. State of U.P.
and another) whereby and whereunder the