Complaint Case 156(3) can be carried forward by son
rohit
(Querist) 28 January 2018
This query is : Resolved
Dear Sirs, I am from delhi. My father died on 14 Dec 2017. He had filed 02 complaint Case against our tenant in 2007 & 2008 apart from civil suit. Now, as he is not in this world I want to continue these cases being his son. My lawyer told me that as per law I can't carried forward in criminal case as I was the witness in above 02 cases and law is also not allowed to carry forward in criminal case. Now my query is as follows:
1) my lawyer is correct?
2) we should withdraw above 02 cases?
3) will withdrawal of above 02 criminal cases have negetive impact on existing civil suit?
4) If in case I am allowed to carried forward the above 02 cases, should I continue as it is pending since 2007 & 2008 only?
5) Can I carry forward civil suit after my father.
Please advice . Thanks
Guest
(Expert) 28 January 2018
You have been misguided by your lawyer. If you are witness in the case and as per another thread you stated that you also have sister as a legal heir, your sister can carry forward the case by stepping in to the shoes of your father.
Vijay Raj Mahajan
(Expert) 28 January 2018
As far the civil suit is concerned you or any of the legal heir or all legal heirs of your deceased father, as the legal representative can carry forward the same in the court by moving application for adding you as the legal representative of the plaintiff/petitioner.
As far criminal complaint is concerned, what sort of criminal complaint case is going on in the court? Is it private criminal complaint or state criminal complaint case? The State criminal complaint will continue even after the death of your father who made complaint against the accused, however the private criminal complaint filled by your father directly against the accused will come to an end with the death of the complainant.
The civil suit are independent from the criminal complaint will not make any difference if criminal complaint comes to an end.
Guest
(Expert) 28 January 2018
Sorry to differ with the views of Shri Vijay Raj Mahajan,
It is not the defendant, it is the case of a complainant's death. The defendant is liable to be proved as criminal, he can't be treated as exonerated automatically in view of the death of the complainant. He has to meet with the prescribed penalty for his crime, if proved so.
Guest
(Expert) 28 January 2018
I am also of the same opinion, as of Mr. Dhingra. Hope Shri Vijay Raj Mahajan would like to make a review of his opinion about the fate of a criminal case on death of the complainant.
Vijay Raj Mahajan
(Expert) 28 January 2018
@ Mr. Dingra & Jigyasu Sirs,
Please read section 256 of the Cr.P.C: "256. Non-appearance or death of complainant.- (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 be 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 be, apply also to cases where the non-appearance of the complainant is due to his death."
Here I would also like to mention, The question, therefore, which, now, arises is this: If the absence of the complainant is on account of his death, can the Magistrate allow the summons case to proceed merely on the ground that the deceased-complainant is represented by his pleader or by an officer conducting the prosecution? In order to correctly appreciate the question as to whether a pleader appointed by a complainant, in a summons triable case, can continue to represent the deceased-complainant as the deceased-complainant's pleader, one has to understand the nature of the relationship between a party and his pleader.
While considering the above aspect of the matter, it is of paramount importance to note that the appointment of a pleader by a person is contractual in nature. The appointment of a pleader by a party is essentially appointment of an attorney and the vakalatnama is nothing, but a power of attorney or an authority to represent the party concerned, who may even be a complainant in a criminal case; whether the appointment of the pleader is in a criminal case or in a civil case is immaterial. In criminal cases too, same as in the Civil Cases, the relationship of the complainant with his pleader as the client of the latter comes to an end on the death of the complainant. Hence, when the complainant dies, his pleader retains no authority and cannot, therefore, be allowed to continue to proceed with the complaint in the capacity of the pleader of the deceased-complainant. What logically follows from the above discussion is that when a complainant dies, the Magistrate cannot proceed with the case merely on the ground that the pleader, appointed by the deceased-complainant, is present. However, when the prosecution is conducted by a prosecutor appointed by the Government, State or Central, the death of the complainant is immaterial and the complaint can still be proceeded with.
In short, a careful reading of Sub-section (2) of Section 256 shows that when the complainant dies, the pleader, appointed by the complainant, ceases to be pleader of the complainant and cannot be allowed to represent the complaint; whereas an officer conducting the prosecution of the case based on the complaint lodged by a public servant. continues as an officer conducting the prosecution, notwithstanding the death of the public servant as complainant can, therefore, be allowed to continue to conduct the prosecution.
Guest
(Expert) 28 January 2018
Dear Shri Vijay Raj Mhajan,
The blanket provision of Section 256(2) cannot be justified in all the cases at all the times, as held in the judgment of the "Kushal Kumar Talukdar vs Chandra Prasad Goenka" case (2004). In that case the Gauhati High Court very clearly held, "whether a complaint in a summons case be allowed to continue even after the death of the complainant is a question, WHICH CAN BE ANSWERED ON THE BASIS OF THE FACT OF THE GIVEN CASE and no invariable or inflexible rule of law can be laid down in this regard. The discretion to be exercised in such cases shall, however, be judicious and not arbitrary."
SO, MUCH DEPENDS UPON THE FACTS, CHARACTERISTICS, NATURE & CIRCUMSTANCES OF THE CASE..
.
Vijay Raj Mahajan
(Expert) 28 January 2018
I never said blanket provision of section 256(2) Cr.P.C. I mentioned the exact case law as held by Gauhati High Court only, try to analyze the same correctly. Criminal summon case cannot be continued after the death of complainant just on the basis of his representation by counsel/advocate because the power of attorney of his advocate too comes to an end at the time of the death of the complainant, this what High Court held. Read the case law correctly.
Guest
(Expert) 28 January 2018
The primary issue is whether the Magistrate allows the son to continue with the case or not. Question of the pleader of the deceased to continue is a secondary issue, as he can be reengaged by the son, if he is allowed to continue with the proceedings depending upon the seriousness of the facts of the case.
rohit
(Querist) 28 January 2018
Dear sirs, thanks for your valuable inputs. Request you to kindly reply on point number 3 & 4. Our case details as 2007 is against lady tenant name (452, 341, 504, 506, 420, 427, 109, 471,34) and 2008 case (us 200 from 379, 456, 506, 109, 34)
We should withdraw or just inform court regarding death of my father then court will decide.
Our tenant has also filed complaint Case under 156(3) in 2016 with lot of
charges (354, 378, 420, 448, 463, 468, 471, 506, 120B, 34) which is fake as our fight for house is since 2005. She made party of my father (died) uncles (62,years age) and me (36 age).
Will if ours above 02 cases withdraw , then tenant case will become strong ?
Please suggest forum
Dr J C Vashista
(Expert) 29 January 2018
@Rohit,
You have posted similar academic topics for debate on this platform such as:
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In order to improve your legal knowledge you should join some coaching institute/college/University.
It is abuse of this platform for which Admin LCI is requested to delete account of such member.
Guest
(Expert) 29 January 2018
@ Mr. Rohit,
Your supplementary question very clearly indicates, as if you are interested only in finding answer to some of your academic exercise, as you never stated the facts in your original query. Your supplementary query reveals as if your father was facing trials under as many as 26 sections of CrPC.
When long trials ate going on since for the last more than 10 years, a very crucial question arises, what is the specific reason for not relying your own lawyer? However, if you are litigation savvy and also have abundant resources and time, where lies any restriction for you to continue with as many as number of court cases.
Moreover, the long list of your queries, as pointed out by Dr. J.C. Vashista is a clear indication about your hypothetical cases, as nobody gets involved in to so many court cases, which may ruin his life or your life forever.
