LexASHWIN NANUBHAI VYAS versus STATE OF MAHARASHTRA & ANR.
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A ASHWIN NANUBHAI VYAS v. STAIB OF MAHARASHTRA & ANR. October 10, 1966 B [M. HIDAYATULLAH, S. M. S!KRI AND RAGHUBAR DAYAL, JJ.j c D E 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 requir- ing a complaint by the person aggrieved, the complainant died after the complaint had been filed under s. 198 Cr. P.C. The application for substi- tution 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. ~D : 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. F Appeal by special leave from the judgment and order dated G H 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
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