LexRASHIDA KAMALUDDIN SYED AND ANR. versus SHAIKH SAHEBLAL MARDAN (DEAD) THROUGH LRS. AND ANR.
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) RASHIDA KAMALUDDIN SYED AND ANR. A v. SHAIKH SAHEBLAL MARDAN (DEAD) THROUGH LRS. AND ANR. MARCH 2, 2007 [C.K. THAKKERAND LOKESHWAR SINGH PANT A, JJ.] B Penal Code, 1860: • ss. 406, 420134-Complaint under-Death of complainant-Trial Court granted permission to son of complainant to continue the prosecution- C Correctness of-Held, correct-Courts below had not committed any error- Hence not a fit case for interference under Art.136-Constitution of India, 1950-Code of Criminal Procedure, 1973. Code of Criminal Procedure, 1973: D s.239-Discharge under-Permission granted to son to continue prosecution on death of complainant-Said order not challenged hence attained finality-Application for discharge by accused-Dismissed on the ground that prima facie case was made out against accused-Held, not a fit case to exercise discretionary jurisdiction under Art.136 of the Constitution. E Prosecution case was that the appellants who are daughter and son-in- Iaw of complainant cheated him and also committed breach of trust. He filed complaint for offences punishable under ss. 406 and 420 r.w. s. 34 IPC. The trial Court issued process under s. 204 Cr.P.C. During the pendency of the proceedings complainant died. F On 23.5.1999, trial Court allowed the application of respondent no.l, the son of deceased seeking permission to continue prosecution against the accused persons. That order was not challenged and had attained finality. On 4.8.2004, appellants-accused made an application under s. 239 G Cr.P.C. for discharge contending that no case was made out against them. ,. \, The trial Court rejected the application holding that there was a primafacie case against the accused. The said order was confirmed by the Revisi9nal Court as well as the High Court. Hence the present appeal. 533 H 534 SUPREME COURT REPORTS [2007] 3 S.C.R. A Dismissing the appeal, the Court HELD: 1. The courts below were right in permitting respondent No.I to continue: the prosecution by proceeding with the complaint. In taking such decision, the courts had not committed any error of law which deserves interfernncc by this Court under Article 136 of the Constitution. jPara 271 B [544-F-G] c 2.]. The contention of appellant is that the ratio laid down in Ashwin Nanubhai* would not apply inasmuch as in that case the Court was concerned with offences punishable under Sections 493 and 496 IPC. The contention has no force and cannot be accepted. What was considered in Ashwin Nanubhai was whether prosecution could be continued by any person other than the complainant in view of bar of taking of cognizance under Section 198 Cr.P.C. Considering the scheme and Sections 198 and 495 of the Code, this Court held that such permission could be granted and a person other than the complainant could be allowed to prosecute the complainant. In the D instance case, there is no such bar. Moreover, necessary permission was granted in the year 1997 and there is no infirmity in it. So far as offences under Sections 406 and 420 are concerned, they are also serious in nature and are punishable with imprisonment for three years and seven years respectively. [Paras 17 and 1811541-G; 542-A-B] £ *Ashwin Nanubhai Vyas v. State of Maharashtra, [19671 I SCR 807 F and Jimmy Jahangir Madan v. Bally Cariyapa Hindley (dead) by Lrs., 12004] 12 sec 509, relied on. K. Thackeray & Anr. v. Venkat @ Babru & Anr., [20061 5 SCC 530, refern~d to. 2.2. On the death of complainant, the case did not abate. It was, therefore, open to the sons of complainant to apply for continuation of proceedings against accused persons. By granting such prayer, no illegality has been committed by the courts. (Para 24] 1544-A-B] G :3. There is an additional reason as to why the order should not be interfiered with at this stage. The complainant died in November, 1996. Immediately thereafter, sons applied for impleadment allowing them to continue prosecution against the accused persons. The said application was allow1~d and permission was granted by an order dated 23.5.1997. The said order was never challenged by the appellants and it had become final. Name H of the first respondent was entered on 14.5.2000. Thereafter witnesses were RASHIDA KAMALUDDIN SYED'' SHAIKH SAllEBLAL ~l..IRDAN (DEAD) THROUC.H LRS. fTHAKKER, JJ 535 also examined. In so far as application dated 4.8.2004 of the accused is A ) concerned, it was under Section 239 of the Code wh
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