# ASHWIN NANUBHAI VYAS v. STAIB OF MAHARASHTRA & ANR

- **Citation:** [1967] 1 S.C.R. 807
- **Court:** Supreme Court of India
- **Decided:** 1966-10-10
- **Case number:** Criminal Appeal No. 268 of 1964
- **Bench:** M. Hidayatullah, S. M. S!Kri, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ashwin-nanubhai-vyas-v-staib-of-maharashtra-anr-3919
- **Pages:** 6

## Headnote

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Cod• of Criminal Proc1dure (5 of 1898), ss. 198 and 495-Illquiry
llllder Chapter XVIII requiring complaint by pttrson aggreived-Death of
complainant after filing complaint-Effect-Power to substitute anotheT
prosecution agency.
During the inquiry under Chapter XVIII in respect of offences requiring a complaint by the person aggrieved, the complainant died after the
complaint had been filed under s. 198 Cr. P.C. The application for substitution of the complainant was resisted by the accused-appellant, on the
ground that only the aggreived person could be the complainant and on
the complainant's death, the complaint must be treated as abated. Tho
Magistrate rejected the objection, and the High Court dismissed a revision·
against it. Jn appeal to this Court.
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: The objection must be rejected.
Section 198 Cr. P.C. creates a bar which has to be removed belcre
cognisance is taken. Once the bar is removed because the proper person
has filed a complaint, the section works itself out. If any other restriction
was also there the Code would have said so. Not having said so, one
most treat the section as fulfilled and worked out. [811 D-E]
Unless the Code itself said what was to happen, the power of the Court
to substitute another prosecution agency (subject to such restrictions as
may be found) under s. 495 of the Code was always available. [812 D-E]
Case law discussed.

## Text

A
ASHWIN NANUBHAI VYAS
v.
STAIB OF MAHARASHTRA & ANR.
October 10, 1966
B
[M. HIDAYATULLAH, S. M. S!KRI AND RAGHUBAR DAYAL, JJ.j
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Cod• of Criminal Proc1dure (5 of 1898), ss. 198 and 495-Illquiry
llllder Chapter XVIII requiring complaint by pttrson aggreived-Death of
complainant after filing complaint-Effect-Power to substitute anotheT
prosecution agency.
During the inquiry under Chapter XVIII in respect of offences requiring a complaint by the person aggrieved, the complainant died after the
complaint had been filed under s. 198 Cr. P.C. The application for substitution of the complainant was resisted by the accused-appellant, on the
ground that only the aggreived person could be the complainant and on
the complainant's death, the complaint must be treated as abated. Tho
Magistrate rejected the objection, and the High Court dismissed a revision·
against it. Jn appeal to this Court.
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: The objection must be rejected.
Section 198 Cr. P.C. creates a bar which has to be removed belcre
cognisance is taken. Once the bar is removed because the proper person
has filed a complaint, the section works itself out. If any other restriction
was also there the Code would have said so. Not having said so, one
most treat the section as fulfilled and worked out. [811 D-E]
Unless the Code itself said what was to happen, the power of the Court
to substitute another prosecution agency (subject to such restrictions as
may be found) under s. 495 of the Code was always available. [812 D-E]
Case law discussed.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 268
of 1964.
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Appeal by special leave from the judgment and order dated
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August 25, 1964 of the Bombay High Court ih Criminal Revision
Application No. 333 of 1964.
N. N. Keswani, for the appellant.
K. L. Hathi and R. H, Dhebar, for respondent No. I.
K. RajPndra Chaudhuri and K. R. Chaudhuri, for respondent
No. 2.
The Judgment of the Court was delivered by
Hidayatullilh, J. In this appeal, by special leave, against the
juc;!gment and order of the High Court pf Bombay, August 25,
1965, the appellant Ashwin Nanubhai Vyas is an accused before
the Presidency Magistrate's 4th Court at G:irgaon, Bombay. The
case was started on the complaint uhder s. 198, Code of Criminal
808
SUPREME COURT REPORTS
(1967] I S.C.R.
Procedure of one Kusum Vithal Abhyankar, wlro charged him
with offences under ss. 417, 493 and 496 of the Indian Penal Code.
Kusum's complaint was that Vyas went through a sham marriage
with her, before a person who posed as an Officer from the office
of the Registrar for
Marriages. Subsequently, Vyas abandoned
her and married another. On being questioned Vyas told her
(Kusum) that he had never married her, as the whole affair was
a sham.
Kusum alleged that she had become pregnant as a result
of the cohabitation but in view of her serious heart ailment Vyas
took her to a clinic where under medical advice and on certificate
granted by Vyas an abortion was caused to save Kusum's life,
The complaint was filed on November I, 1963 and Kusum
was examined by the Presidency Magistrate. Vyas was then
summoned to Court. On November 29, Kusum unfortunately
died of a heart attack. Kusum's mother, who is the 2nd respond·
dent in this appeal, then applied to the Court for substitution as,
a fit and proper complainant in the case. She expressed her will·
ingness to act as a complainant and to continue the proceedings ..
This application was strongly resisted by Vyas who contended that
the trial of offences under ss. 493 and 496 of the Indian Penal Code
was governed by s. 198 of the Code of Criminal Procedure and only
the aggrieved person could be the complainant and on Kusum's
death the complaint must be treated as abated. The Presidency
Magistrate by his order, April 3, 1964, rejected the objection and
decided to proceed with the complaint with Kusum's mother as
the complainant. Vyas then filed an application for revision in
the High Court at Bombay and by the judgment and order now
impugned his petition for revision was rejected. The question that
arises in this appeal is whether on the death of Kusum the proceedings
ipso facto came to an end or could be continued in the manner
ordered by the Presidency Magistrate.
The Code of Criminal Procedure provides only for the death
of an accused or an appellant but does not expressly provide for
the death of a complainant. The Code also does not provide for
the abatement of inquiries and trials although it provides for the
abatement of appeals on the death of the accused, in respect of
appeals under ss. 411A(2) and 417 and on the death of an appellant
in all appeals except an appeal from a sentence of fine.
Therefore,
what happens on the death of a complainant in a case started on a
complaint has to be inferred generally from the provisions of the
Code.
The Code by Chapter XV, which is to be found in Part VI
(Proceedings in Prosecutions), provides for the jurisdiction of a
criminal court in inquiries and trials. This Chapter is divided
into two Parts-A (Place of Inquiry of Trial) and B (Conditions
requisite for initiation of Proceedings). Part B consists of ss. 190
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A. N. VYAS V. MAHARASHTRA (Hidayatul/ah, J.)
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to 199B. Section .190 lays down, inter alia, that any Presidency
Magistrate may take cognizance of any offence upon receiving
a complaint of fact which constitutes such offence. Sections 195
to 199B, however, place certain restrictions upon the power of
the Chief Presidency Magistrate and other courts to take cognizance of cases. One such restriction is to be found in s. 198. lt
provides :
"198. Prosecution for breach of contract, defamation
and offences against marriage.
No Court shall take cognizance of an offence falling
under Chapter XIX or Chapter XXI of the Indian Penal
Code or under sections 493 to 496 (both inclusive) of the
same Code, except upon a complaint made by some person
aggrieved by such offence:
Provided that, where the person so aggrieved is a
woman who, according to the customs and manners of the
country, ought not to be compelled to appear in public,
or where such person is under the age of eighteen years or
is an idiot or lunatic,. or is from sickness or infirmity unable to make a complaint, sonie other person may, with
the leave of the Court, make a complaint on his or her
behalf:
Provided further that
The complaint of Kusum was filed to remove the bar contained
in this section although for the offence under s. 417 no such bar
existed. The offences under ss. 493 (a man by decit causing a woman
not lawfully married to him to believe that she is lawfully married
to him and to cohabit with him in that belief) and 496 (a preson
with fraudulent intention going through the ceremony of being
married, knowing that he is not thereby lawfully married) are
non-cognizable, not compoundable and exclusively triable by
Court of Session. They are serious offences, being punishable
with imprisonment extending to 10 and 7 years respectively. The
Presidency Magistrate,. was not trying the case but only inquiring
into it with a view to its committal to the Court of Session if the
facts justified a committal. During this inquiry Kusum died.
We have to determine what is the effect of the death of a complainant on an inquiry under Chapter XVIII in respect of offences
requiring a complaint by the person aggrieved, after the complaint
has been filed.
Mr. Keswani for Vyas, in support of the abatement of the
case, relied upon the analogy of s. 431 under which appeals abate
and ss. 247 and 259 under which on the complainanrremaining
M17Suq.:.I./66-7
810
SUPRl!MI! COURT REPORTS
[1967] I S.C.R
absent, ~l\e court can acquit or discharge the accused.
These
analogic; do not avail him because they provide for special situations.
Inquiries and trials before the court are of several kinds.
Section 247 occurs in Chapter XX which deals with the trial of
summons cases by a Magistrate and s. 259 in Chapter XXI which
deals with trial of warrant cases before Magistrates.
Under the
former, if summon is issued on a complaint and the complainant
on any day remains ab.Im! from the court, unless it decides to proceed
with the trial, must acquit the accused. This can only hapJA:n in
the trial of cases, which are punishable with imprisonment of less
than one year. This not being the trial of a summons case but a
committal inquiry, s. 247 neitlier applies nor can it furnish any
valid analogy. Similarly, s. 259, which occurs in the Chapter on
the trial of warrant cases, that is to say, cases triable by a Magistrate
and punishable with imprisonment exceeding one year can furnish
no analogy.
Under s. 259, if the offence being tried as a warrant
case is compoundable or is not cogniz.able the Magistrate may
discharge the accused before the charge is framed if the complainant
remains absent. Once again this section cannot apply because
the Presidency Magistrate was not trying the case under Chapter
XXJ.
This case was being heard under Chapter XVJll which divides
committal cases into two classes (a) those commenced on a police
report and (b) other cases. The first kind is tried under the procedure laid down in s. 207A. With that procedure we are not
concerned. The other cases are tried under the procedure as laid
down in the other
provisions of Chapter XVIII. Section
208 of this Chapter provides that in any proceeding instituted
otherwise than on police report the Magistrate shall "when the
accused appears or is brought before him, proceed to hear the
complainant (if any) and take in manner hereinafter provided
:111 such evidence as may be produced in support of the prosecution
or on behalf of the accused, or as may be called for by the Magistrate." The Magistrate then hears evidence for the prosecution
unless he makes an order of commitment and after recording the
evidence and eumining the accused (if necessary) frames a charge.
He may, after hearing further evidence, which the accused may wish
10 produce (unless for reasons to be recorded, the Magistrate
deems it unnecessary to do so) either discharge the accused cancelling the charge or commit him to stand his trial before the Court
of Session. There is no provision about the acquittal or discharge
of the accused on the failure of the complainant to attend the court.
This is not an omission but a deliberate depart'ure from the Chapters
on the trial of summons and warrant cases. In such trials, on the
absence of the complainant, the accused is either acquitted or discharged. The intention appears to be that the Magistrate should
proceed with the inquiry because had it not been so intended, the
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A. N. VYAS v. MAHARASHTRA (Hidayatul/ah, J.)
811
Code would have said what would happen if the complainant
remains absent.
Mr. Keswani, however, contends thats. 198 provides that the
cognizance of the case can only be taken on the complaint of a
person aggrieved and the only exception to this general rule is
where the complainant is a woman, who according to the customs
and manners of the country, ought not to be compelled to appear
in public, or where such person is under the age of eighteen years
or is an idiot or lunatic, or is from sickness or infirmity unable
to make a complaint. He contends that what applies to the initiation of the proceeding must also apply to the continuance of the
proceeding. He submits that if cognizance could not be taken
unless a complaint was made in the manner provided in. the section,
the court cannot proceed with the inquiry unless the same condition
continues to exist. In other words, because the section insists on
a complaint of a person aggrieved, Mr. Keswani contends that continued presence of the person aggrieved throughout the trial is
also necessary to keep the court invested with its jurisdiction except
in the circumstances mentioned in the proviso and summarised.
above. We do not agree. The section creates a bar which has to be
removed before cognizance is taken. Once the bar is removed, because
the proper person has filed a complaint, the section works itself out.
If any other restriction was also there the Code would have said
so. Not having said so, one must treat the section as fulfilled
and worked out. There is nothing in the Code or in Chapter
XVIII which says \\·hat, if any, consequence would follow if the
complainant remains absent at ·any subsequent hearing after filing
the complaint. In this respect Chapter XVIII is distinctly dis-similar
to the Chapters dealing with the trial of summons and warrant cases
where it is specifically provided what consequence follows on the
absence of the complainant.
Mr. Keswani contends that the Presidency Magistrate has made
a "substitution" of a new complainant and there is nothing in
the Code which warrants the substitution of one complainant for
another. It is true that the Presidency Magistrate has used the
word "substitute" but that is not the effect of the order. What
the Presidency Magistrate has done is to allow the mother to act
as the complainant to continue the prosecution. This power was
undoubtedly possessed by the Presidency Magistrate because of
s. 495 of the Code by which courts are empowered (with some
exceptions} to authorise the conduct of prosecution by any person.
The words 'any person' would indubitably include the mother of
the complainant in a case such as this. Section 198 itself contemplates that a complaint may be made by a person other than the
person aggrieved and there seems to us no valid reason .why in
such a serious case we should hold that the death of the complainant
puts an end to the prosecution.
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SUPlll!ME COUl.T llEPORTS
[1967) I S.C.R.
In support of his contention Mr. Keswani has cited some cases
of the High Courts in which on the death of the complainant the
prosecution was held to have abated. Chief among them are
Ishwardas v. Emperor, (I) Ramanand v. Crown (2)
and Labhu v.
Crown (3). The first of t~ese cases was a prosecution for defamation and the second a trial for an offence under s. 323, Indian Penal
Code. The third followed the second. The first two cases here
mentioned were overruled by the Lahore High Court in Jlazara
Singh v. Crown(4) wherein it was laid down that such cases do
not necessarily abate. Mr. Keswani also relied upon several cases
which arose under s. 417(3) and 476 B of the Code of Criminal
Procedure in which appeals were held to have abated. We need
not refer to these cases because they arose under different circumstances and were certainly not inquiries with a view to committal under Chapter XVIII of the Code. Mr. Hathi, who appeared
on behalf of the State of Maharashtra, drew.our attention to many
later cases in which it has been held (dissenting from the cases
relied upon by Mr. Keswani) that a criminal complaint does not
necessarily abate on the death of the complainant even in those
cases where the making of the complaint by the person aggrieved
is made a condition precedent by the Code. We need not analyse
those cases because, in our opinion, unless the Code itself says
what is to happen, the power of the court to substitute another
prost:cution agency (subject to such restrictions as may be found)
under s. 495 of the Code of Criminal Procedure is always available. Reference may, however, be made to the following: Emperor v.
Nurmohammed,(') Emperor v. Mauj Din,(6) U Tin Maung and another
v. 11ie King, (1) Mohammed Azam v. Emperor (') and In re Ramasamier('). None of the cases cited either for the one side or the
other directly arose under s. 198 first part in a committal proceeding.
The later view is distinctly in favour of allowing the prosecution
to continue except in those cases where the Code itslef says that
on the absence of the complainant the accused must be either
acquitted or discharged. The present is not one of those cases
and in our Judgment the Presidency Magistrate was right in proceeding with the inquiry by allowing the mother to carry on the
prosecution, and under s. 495 the mother may continue the prosecution herself or through a pleader. We see no reason why we should
be astute to find a lacuna in the procedural law by which the trial
of such important cases would be stultified by the death of a complainant when all that the s. 198 requires is the removal. of the bar.
The appeal fails and it will be dismissed.
Y. P.
App.:al dismissed.
(l) 7 Cr.L.J. 290.
(2) 4-0 I.e. 1008.
(l) 52 l.C. 797.
(4) I.LR. 2 lab. 27.
(5) 8 Cr.LJ. 19J.
(6) A.I.R. 1924 I.ah. 12-4 l ah. 7.
(7) A.I.R. 19~1 Rang. 2J2.
(8) A.l.R. 1926 lk>m. 178.
(9) A.l.R. 16 Cr. L.l. 713.
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