Complainant died but warrant issued again and again to accused
Kumar Krishan Agarwal Advocate
(Querist) 28 June 2012
This query is : Resolved
My Ld Firends!
I have a client case in which the accused side I am representing. That the complainant was died in 420 IPC case of not giving money of bill of exchange filed by him in year 2003 before his death against accused. Before complainant death, the complainant was also granted exemption for personal appearance which was allowed by magistrate before his death. Now there was no legal heir substituted in the complaint case after the death of complainant till yet. The Magistrate has been issuing bailable warrant again and again for appearance of accused. The accused lives 3000Km away from the city Meerut jurisdicion Court of law. The accused may not get served copy of court summons neither nor get arrest on bailable warrant till yet. The case is on initial stage where accused was not brought back till yet before court of law.
Q1. Now How I can handle the case and may get recall bailable warrant against accused although the complaint was died long ago?.
Q2. May I directly file an application under Sec 256 of Crpc for dismissal of the complaint Case against my client accused with my fresh Vakalatnama?
Q3. How can Magistrate may issuing bailable warrant again and again while the complainant_advocate has not communicated the death of complainant to Magistrate legally?
AKILA SAINATHAN
(Expert) 28 June 2012
Please furnish the details of the case what is the offence committed by the accused. because merely death of the accused will not be the ground for dismiss the complaint. the court has power to issue bailable warrant to the accused even the complainant dead.
AKILA SAINATHAN
(Expert) 28 June 2012
Please furnish the details of the case what is the offence committed by the accused. because merely death of the accused will not be the ground for dismiss the complaint. the court has power to issue bailable warrant to the accused even the complainant dead.
off course you know that very well so inform the case details plz
Arvind Singh Chauhan
(Expert) 28 June 2012
Sir,
Whether court knows the fact of his death? If no, bring it to the notice of court with death certificate and apply for dismissal under 256 Cr.p.c, if there is no legal heir and complainant's lawyer has not obtained permission to plead.
Tajobsindia
(Expert) 28 June 2012
After the death of the complainant (in a S. 420 IPC case), the provisions of S. 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.
Ref.: Jimmy Jahangir Madan v. 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 alter getting his personal appearance dispensed with under Section 205 Cr.P.C. and appearance through pleader is sufficient, likewise under S. 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.
S. 256 Cr.P.C. is another provision which has been taken into consideration in the instant brief of our ld. brothers.
S. 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 he 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 he, apply also to cases where the non-appearance of the complainant is due to his death.
6. 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 S. 306 of Succession Act, 1925 does not apply to criminal prosecutions
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 complaint has to be inferred generally from the provisions of the Code.
In the circumstances, because the complainant (In a S. 420 IPC case) is dead, the complaint can be dismissed outright. Admittedly the complainant is not even being represented by a pleader as brought to notice before us by the queriest.
In the instant brief, the complainant is dead and it has not even brought to the notice of the concerned Court and not even a pleader appointed by heir of the deceased (complainant) and the proceedings can be quashed in exercise of inherent powers only because the complainant is dead.
There can not be prejudice to the fate of the case is my opinion.
