Question: If the complainant dies during the pendency of a private criminal complaint case, can this case be continued by his successors or the case would come to an end?
Answer: Yes, it is possible for the successors of the complainant (after his death) to continue to private criminal complaint case. It can be done with the permission of the court.
Recently, in the case of Chand Devi Daga v. Manju K. Humatani, (2018) 1 SCC 71, the Supreme Court decided a similar issue. In this case, the complainant had filed a complaint alleging offences under Sections 420, 467, 468, 471, 120-B, 201 and 34 IPC. This complaint was dismissed. The criminal revision petition filed by the complainant was also dismissed by the Additional Sessions Judge. The complainant filed a petition in the high court against that order. During the pendency of this case before the high court, the complainant died. An application was filed by the legal heirs of the complainant praying them to be substituted in place of the complainant. The High Court allowed the said application and permitted the legal representatives of the complainant to come on record for prosecuting the criminal miscellaneous petition before the high court. On appeal, the Supreme Court held that the High Court did not commit any error in allowing the legal heirs of the complainant to prosecute the criminal miscellaneous petition before the High Court.
The Supreme Court relied upon Section 302 of Criminal Procedure Code (and certain other sections) and certain previous judgments to hold that, with the permission of the court, a criminal complaint can be prosecuted by the successors of the complainant after his death. Section 302 of the Cr.P.C. is as under:
“302. Permission to conduct prosecution.—(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:
Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by a pleader.”
It is quite clear from the above section that the court has the power to permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector. And, such “any person” would definitely include the heirs of the complainant.
Previous judgments of the Supreme Court in which it was similarly held that heirs of the complainant can continue the prosecution after his death, are as under:
(1) Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983 : 1967 Cri LJ 943;
(2) Balasaheb K. Thackeray v. Venkat, (2006) 5 SCC 530;
(3) Jimmy Jahangir Madan v. Bolly Cariyappa Hindley, (2004) 12 SCC 509.
However, it is clear from these judgments that the successors of the complainant will need to obtain permission from the court to continue prosecution after death of the complainant.
