ORDER
A. Pasayat, J.
1. It was brought to the notice of the Court that Hadibandhu Rana (hereinafter referred to as 'the complainant') at whose instance I. C. C. No. 257 of 1988, (Trial No. 48 of 1993), was initiated has died. In the said case the petitioners (hereinafter referred to as 'the accused') were found guilty of the offence punishable under Section 379, read with Section 34 of the Indian Penal Code, 1860, (in short, 'IPC').
2. The question that emerges for consideration is what is the effect of such death and whether the revision application would abate on the death of the complainant. There is no specific provision in the Code of Criminal Procedure, 1973 (in short, 'the Code') to meet such contingency. Under Section 394 of the Code every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. Every other appeal under Chapter XXIX (except an appeal from a sentence of fine) shall also finally abate on the death of the appellant, provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate. The expression 'near relative' has been defined to mean' a parent, spouse, lineal descendant, brother or sister' by the explanation appended to Section 394. As provided in Section 256, if during trial of a summons case by a Magistrate, there is non-appearance or death of the complainant, the Magistrate shall not withstanding anything contained supra in the statute acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. In warrant cases, Section 249 deals with the effect of absence of a complainant. While Section 249 mentions about absence of complainant, specific provision in Sub-section (2) of Section 256 in regard to trial of summons cases is to the effect that the order permitting acquittal is also applicable to cases where non-appearance of the complainant is due to his death. Sub-section (2) of Section 256 lays down in clear and unambiguous terms that 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. The words 'as far as may be' suggest that the Magistrate will have to decide having regard to the facts and circumstances of each case. The Section does not require that in a summons case the accused must necessarily be acquitted on the death of the complainant. Since there is no specific provision relating to the situation where the complainant dies in an appeal filed by the convicted persons, I feel the State should step into the shoes of the complainant. The offence has implication on the society. A crime is an act deemed by law to be harmful to society in general even though its immediate victim is an individual. The notion of crime as a threat to the whole community is the material counterpart of the formal rule that State alone is master of a criminal prosecution. A criminal prosecution is not intended for the private satisfaction of a personal vendetta or revenge. Therefore, the State has responsibility in prosecution of an accused. In a case where the complainant dies during pendency of an appeal against conviction, the State has to be brought on record.
3. A copy of the brief be handed over to learned counsel for State within a week so that necessary appearance can be made in the revision application to further proceed in the matter.
4. Put up this matter after one week for hearing of the revision application.