# Smt. Saroj Gupta & another v. State of U.P. & another

- **Citation:** (2006) 2 ILRA 755
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-12-07
- **Case number:** Criminal Misc. Application No.15530 of 2005
- **Bench:** Mrs. Poonam Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-saroj-gupta-another-v-state-of-u-p-another-40588
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 256not appearance of complainant-after
filing the protest application-through
counsel-the complainant died-presence
of complainant not mandatory-complaint
can not be dismissed out rightly.

Held: Para 8

In the circumstances, merely because
the complainant is dead, the complaint
can
not
be
dismissed
outright.
Admittedly the complainant is being
represented by a pleader and it is for the
Magistrate
to
decide
whether
the
attendance
of
the
complainant
is
necessary,
it
is
discretion
of
the
Magistrate
to
dispense
with
his
attendance and proceed in the case.
Case law discussed:
AIR 1967 SC-983
2005 (1) ACR-478 SC

## Text

2 All] Smt. Saroj Gupta and another V. State of U.P. and another
755
13. It is pointless to send the matter
back to the District inspector of Schools
for reconsideration, as on two occasions
the District inspector of Schools has gone
on a witch hunt and rejected the claim of
the petitioner. Consequently, a mandamus
is issued to the District Inspector of
Schools, Mainpuri, respondent no.3 to
grant approval to the appointment of the
petitioners within one month from 'the
date of production of a certified copy of
this order
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.12.2005

BEFORE
THE HON'BLE MRS. POONAM
SRIVASTAVA, J.

Criminal Misc. Application No.15530 of
2005

Smt. Saroj Gupta & another ...Applicants
Versus
State of U.P. & another...Opposite Parties

Counsel for the Applicants:
Sri B.B. Jauhari

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 256not appearance of complainant-after
filing the protest application-through
counsel-the complainant died-presence
of complainant not mandatory-complaint
can not be dismissed out rightly.

Held: Para 8

In the circumstances, merely because
the complainant is dead, the complaint
can
not
be
dismissed
outright.
Admittedly the complainant is being
represented by a pleader and it is for the
Magistrate
to
decide
whether
the
attendance
of
the
complainant
is
necessary,
it
is
discretion
of
the
Magistrate
to
dispense
with
his
attendance and proceed in the case.
Case law discussed:
AIR 1967 SC-983
2005 (1) ACR-478 SC

(Delivered by Hon'ble Mrs. Poonam Srivastava, J.)

1. Heard Sri B.B. Jauhari, learned
counsel for the applicant and learned
A.G.A. for the State.

2. Inherent power of this Court has
been invoked challenging the proceedings
in criminal case No.3674 of 2004, Ram
Ratan Vs. Dev Nath Gupta and others,
under Section 420, 467, 468, 471, 406
I.P.C. Police Station Sadar Bazar, District
Shahjahanpur
and
also
order
dted
4.8.2005 passed by Additional Chief
Judicial
Magistrate,
Shahjahanpur
summoning the applicants.

3. The brief of the case are that one
Sri
Ram
Ratan
Gupta
moved
an
application under Section 156 93) Cr.P.C.
and an order was passed on 28.2.2003 for
registration of the first information report
and to investigate the matter. In pursuance
to the order of the Magistrate, the police
investigated and submitted a final report
stating therein that no case is made out
against the accused on 19.4.2003. A
protest
petition
was
filed
by
the
complainant Ram Ratan Gupta but the
proceedings on the basis of protest
petition was being considerably lingered
as such Sri Ram Ratan Gupta approached
this Court for an expeditious disposal of
the protest petition. A direction was given
by this Court on 5.10.2004 to the Chief
Judicial
Magistrate,
Shahjahanpur to
decide the protest petition within a period
of three months. Thereafter the case was
756 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
registered as complaint case by the
Additional Chief Judicial Magistrate on
13.1.2005.
The
statement
of
the
complainant was recorded under Section
200 Cr.P.C. on 20.1.2005. Sri Ram Ratan
Gupta died on 8.5.2005 and after his
death, the statement only on 22.6.2005.
The statement under Section 200 and 202
Cr.P.C. is annexed as Annexure-6 to the
affidavit. A perusal of the statement of
PW-I Suresh Chandra Gupta shows that
he has mentioned that Ram Ratan Gupta
is dead. After the statement of the
witnesses, the applicants were summoned
vide order dated 4.8.2005 which is under
challenge in this application.

4. It is emphatically argued by
counsel for the applicants that since the
complainant is dead and offences for
which
the
applicants
have
been
summoned, are cognizable offences and
that
charge
has
not
been
framed,
therefore, on the death of the complainant,
the proceedings of the complaint are
liable to be dropped. The summoning
order has been challenged on the ground
that after the death of the complainant, the
provisions of Section 302 Cr.P.C. will
come into play because no permission
was sought from the Chief Judicial
Magistrate for conducting the prosecution
after the death of the complainant. In the
circumstances, the entire proceedings in
the complaint case are liable to be
quashed. In support of this contention;
reliance has been placed on two decisions
of the Apex Court, Ashwin Nanubhai
Vyas Vs. State of Maharashtra, A.I.R.
1967 S.C., 983. This case deals with the
offences under Section 493 and 496 I.P.C.
and what happens on the death of the
aggrieved person after filing of the
complaint. The Apex Court dealt the
matter relating to a matrimonial offence,
as such I do not find any support to the
argument advanced by the counsel for the
applicant Reliance has also been placed
on another decision, Jimm Jahangir
Madan Vs. Bolly Cariyappa Hindley
(D) by legal representatives, 2005 (1)
ACR 478 (S.C.). In this case the Supreme
Court has dealt with question as to
whether
the
prosecution
could
be
conducted by a power of attorney
executed by the heirs of the complainant
after his death and the court can continue
with the prosecution; Supreme Court
answered in negative. This is not the fact
in the present case where the heirs of the
complainant have executed a power of
attorney on the basis of which the
prosecution is being conducted. In the
circumstances, I feel that this decision
also has no applicability to the facts of the
present case, on the contrary, perusal of
the observations of the Apex Court in the
case of Jimmy Jahangir Madan (Supra)
shows that Supreme Court was of the
view that since an accused can abstain
from the court during the proceedings
after getting his personal appearance
dispensed with under Section 205 Cr.P.C.
and
appearance
through
pleader
as
sufficient, likewise under Section 302
Cr.P.C. a person either by making an
application himself or instead of taking
steps
personally,
a
party
can
be
represented through a pleader.

5. The next submission on behalf of
the applicants is that since the stage of
Section 244 Cr.P.C. has not yet arrived as
such the provisions of Section 245 (2)
Cr.P.C. will not come into play. Learned
A.G.A. has placed reliance on the
provisions of Section 249 Cr.P.C. with
corresponds to Section 259 of the Old
Code, 1898. Section 249 Cr.P.C. gives a
discretion to the Magistrate to compound
2 All] Smt. Saroj Gupta and another V. State of U.P. and another
757
or discharge the accused in absence of the
complainant but this can not be said to be
mandatory under the old Code. The word
'complainant' was used under Section
Cr.P.C. which corresponds to the new
Section
244
Cr.P.C.
The
word
'complainant' has been substituted by
word
'prosecution'
therefore,
the
contention raised by learned counsel for
the applicants challenging the summoning
order merely because the complainant
died after his statement was recorded
under Section 200 Cr.P.C. can not be
accepted. Section 256 Cr.P.C. is another
provision which has been taken into
consideration in the instant case. Section
256 Cr.P.C. is quoted below-

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."

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 action personalis moritur cum
persona of Section 306 of Succession Act,
1925
does
not
apply
to
criminal
prosecution."

6. 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 complainant has to
be inferred generally from the provisions
of the Code.

7. In the instant case, I am also
conscious of the fact that the protest
petition was filed after submission of final
report on 19.4.2003 but the Magistrate
failed to record the statement until a
direction was given on 5.10.2004 by this
Court and thereafter the protest petition
was
registered
on
13.1.2005 as
a
complaint case. The complainant recorded
his statement on 20.1.2005, died on
8.5.2005 and thereafter the statement of
other witnesses PW-1 and PW-2 were
recorded only on 22.6.2005. Thus the
complaint can not be dismissed on the
death of the complainant specially where
the other persons are represented by him.

8. In the circumstances, merely
because the complainant is dead, the
complaint can not be dismissed outright.
Admittedly the complainant is being
represented by a pleader and it is for the
Magistrate
to
decide
whether
the
attendance
of
the
complainant
is
758 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
necessary,
it
is
discretion
of
the
Magistrate to dispense with his attendance
and proceed in the case. It is only in such
cases where the complainant has failed to
appear without any justifiable reason and
the Presiding Officer is of the opinion that
the allegations made in the complainant
can not be established on account of
absence of the complainant, the complaint
can be rejected for want of complainant.
In the instant case, the complainant is
dead and it has already been noticed that
the presence of the complainant is not
mandatory and the proceedings can not be
quashed in exercise of inherent powers
only because the complainant is dead.
This Court in exercise of jurisdiction
under Section 482 Cr.P.C. can not
prejudice the fate of the case immediately
after the summons have been issued to the
accused. I am of the considered opinion
that the proceedings can not be quashed
only for the reason that the complainant is
dead.

9. In the circumstances, this
application lacks merit and is accordingly
rejected.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2005

BEFORE
THE HON'BLE S.RAFAT ALAM, J.
THE HON'BLE VIKRAM NATH, J.

Special Appeal No. 194 of 1997

Munni Begum

...Appellant
Versus
The Secretary Basic Shiksha Parishad
U.P. and others

 ...Respondents

Counsel for the Appellant:
Sri R.B. Singhal
Sri K.A. Ansari

Counsel for the Respondent:
Sri R.K. Tiwari
Sri B.P. Singh
S.C.

Service Law Reversion Order- Petitioner
working as Asstt. Teacher in Junior High
School Amroha since 1981- on her
request posted as teacher in primary
schoo later on vacancy in Junior High
School-where she joined-without caused
notice or opportunity can not be reverted
particularly when one year left to her
retirement entitled to continue at junior
higher school Amroha.

Held- Para 6 and 7

However once the petitioner had joined
the Junior High School at Amroha some
semblance of a right again occurred to
her to continue on such post and
thereafter again sending her to Primary
School
would
adversely
affect
her
service conditions, which protection she
was entitled to under law. Therefore, the
order impugned in the writ petitioner
adversely affecting her rights could not
have been passed without notice or
opportunity was given to her while
reverting her from Junior High School to
Primary School in Amroha. This aspect of
the matter has not been considered by
the learned single Judge, who was only
swayed by the fact that the petitioner
having once given her consent to even
join as a teacher of Primary School in the
event her request for transfer was
accepted, lost her right for ever to be
posted in a Junior High School even if a
post was lying vacant where she could
be adjusted. We are unable to agree with
the reasoning of the learned single Judge
to the extent indicated above. We are
therefore, inclined to allow the appeal as
well as the writ petition.