SHRI BALASAHEB K. THACKERAY AND ANR. versus SHRL VENKAT @ BABRU AND ANR.

Citation: [2006] SUPP. 3 S.C.R. 301 · Decided: 05-07-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT
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Judgment (excerpt)

( 
SHRl BALASAHEB K. THACKERAY AND ANR. 
A 
v. 
SHRl VEN KAT @ BAB RU AND ANR. 
JULY 5, 2006 
[ARIJlT PASA VAT AND C.K. THAKKER, JJ.] 
B 
Code of Criminal Procedure, 1973-Section 302-Private complaint-
Death of complainant during pendency of the case-Effect of on the 
prosecution-Permissibility to continue prosecution by legal heirs-Held: Heirs 
of the complainant can continue the prosecution, after obtaining permission C 
for the same from the Court dealing with the matter. 
Respondent-complainant had filed a private complaint against the 
appellants-accused and others. Trial Court issued process. Appellant filed 
petition u/s 482 Cr.P.C. which was dismissed by High Court. During D 
pendency of appeal to this Court, complainant died. Appellants contended 
that complaint was liable to be dismissed on the ground of death of the 
complainant. Legal heirs of the complainant contended that they would 
file an application for permission to prosecute and therefore the complaint 
still survived. 
Permitting the legal heirs to file the application for permission to 
prosecute, the Court 
E 
HELD: 1. Heir of the complainant can be allowed to file a petition 
under Section 302 Cr.P.C. to continue the prosecution. To bring in 
application of Section 302, permission to conduct prosecution has to be F 
obtained from the Magistrate inquiring into or trying a case. The 
Magistrate is empowered to permit prosecution to be conducted by any 
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. Hence if any permission is sought for by the G 
legal heirs of the deceased complainant to continue prosecution, the same 
shall be considered in its perspective by the Court dealing with the matter. 
[303-D-E; 303-G-H; 304-A-B) 
2. As the further proceedings before the Magistrate are stayed, if 
301 
H 
302 
SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R. 
A and when any application is filed before this Court the same shall be dealt 
with appropriately. [304-CJ 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 236 
of 2005. 
B 
From the Judgment and Order dated 2.7.2003 of the High Court of 
Judicature at Bombay in Crl. Appln. No. 442/1995. 
Jaideep Gupta and Shivaji M. Jadhav for the Appellants. 
Kailash Chand, Mukesh K. Giri, S.S. Shinde and Ravindra Keshavrao 
C Adsure for the Respondents. 
The Judgment of the Court was delivered by 
ARIJIT PASAYAT, J. An interesting question as to what is the effect 
of the death of the complainant arises for consideration in this case. When the 
D matter was listed for hearing, learned counsel for the appellants submitted that 
the respondent no. I, who was the complainant has died and, therefore, the 
proceedings initiated on the basis of said complainant do not survive. Learned 
counsel for the legal heirs of the complainant submitted that they propose to 
continue the proceedings and file an appropriate application thereof. 
E 
A brief reference to the factual aspects would suffice: 
Shri Venkat@ Babru (hereinafter referred to as the 'complainant') filed 
a private complaint bearing No.R.Crl.C No. I 07 of 1994 on 7.9.1994 against 
the appellant and four others in the Court of Judicial Magistrate, 1st Class, 
Sailu, District Parbhani alleging commission of offence punishable under 
F Section 500 read with Section 34 of the Indian Penal Code, 1860 (in short 
'IPC'). Subsequently, the complaint against the three reporters was withdrawn 
and proceedings are continuing against the appellants i.e. the Editor, Printer 
and Publisher of a newspaper "Dainik Samna". The allegation in the complaint 
was that the accused persons in furtherance of their common intention had 
G published news in respect of the complainant in their newspaper published 
from Aurangabad on various dates. It was alleged in the complaint that due 
to the report, the reputation of the complainant was tarnished and he was 
defamed. After hearing arguments learned Magistrate issued process by order 
dated 15.9.1994. A petition under Section 482 of the Code of Criminal 
Procedure, 1973 (in short the 'Code') was filed before the Bombay High 
H Court, Aurangabad Bench which was dismissed by the judgment impugned in 
-· 
SHRI IlALASAHEB K. THACKERAY\'. SHRI VENKAT@IlABRU [PASAYAT,J.] 
303 
the appeal. The appellants filed Special Leave Petition (SLP (Crl.) No.4367 A 
of2003). After notice, the appeal was admitted on 3.2.2005
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