Harbans Singh Vs. Gulzar Singh - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - section 256 sub-section (1) read with sub-section (2) clearly envisages a situation where the complainant has died and still the magistrate is competent to proceed with the complaint, even after noticing that the complainant is dead.orderv.m. jain, j.1. this is a petition under section 482 cr.p.c. filed by the accused petitioners, challenging the order dated 19.3.1998 passed by the jmic, fatehgarh sahib and the order dated 23,11.2000 passed by additional sessions judge, fatehgarh sahib, upholding the order of the jmic dated 19.3.1998, vide which gulzar singh, applicant-respondent, had been allowed to continue with the criminal complaint filed by his father barii singh against the accused under sections 447, 427, 379, 148, 149 ipc.2. the facts in brief, which are relevant for the decision of the present petition, are that baru singh filed a criminal complaint against various accused under sections 447, 427, 379, 148, 149 ipc etc. in the court of jmic, falehgarh sahib- after recording preliminary evidence, accused were summoned. the said criminal complaint was being pursued by his son gulzar singh, being his attorney. during the pendency of the criminal complaint, baru singh complainant expired. after death of baru singh, his son gulzar singh filed the application before the judicial magistrate, seeking permission to pursuethe criminal complaint the said application of gulzar singh was opposed by the accused, alleging therein that gulzar singh, applicant, had no right to continue with the criminal complaint which was filed by his father baru singh. after hearing both sides and after perusing record, the jmic vide order dated 19.3.1998 held that gulzar singh, applicant, was entitled to continue with the present complaint and as such, his name was ordered to be substituted in place of his father baru singh. aggrieved against this order dated 19.3.1998 passed by the jmic, all the accused filed criminal revision before the sessions court. the learned additional sessions judge, after hearing both sides and after perusing the record, dismissed the said revision petition holding that the trial court was justified in ordering the substitution of gulzar singh, applicant, in place of his father baru singh, on the death of baru singh, complainant, vide order dated 23.11.2000. aggrieved against these orders passed by the courts below, the accused have filed the present petition under section 482 cr.p.c., in this court.3. i have heard the learned counsel for the petitioners and have gone through the record carefully.4. the learned counsel appearing of the accused petitioners submitted before me that the magistrate had no power to allow gulzar singh son of baru singh, complainant, to continue with the criminal complaint against the petitioners after the death of baru singh. reliance was placed on the law laid down by rajasthan high court in the case reported as rattan singh and others v. chain singh, 2000(3) crl.lj. 2736.5. however, i find no force in this submission of the learned counsel for the petitioners. the learned additional sessions judge, while dismissing the revision vide order dated 23.11.2000 and upholding the order dated 19.3.1998 passed by the trial magistrate, had placed reliance on two judgments i.e.ashwin nanubhai vyas v. the state of maharashtra and another, air 1967 sc 983 and s. reddappa v. m. vijaya, 1997(1) civil court cases 248 (karnataka).6. in air 1967 sc 983 (supra), it was held by their lordships of the supreme court that the power of the court to substitute another prosecution agency under section 495 cr.p.c. (old) is always available. in the reported case, the presidency magistrate had allowed mother to carry on the prosecution after the death of complainant. the hon'ble supreme court held that the presidency magistrate was right in proceeding with the inquiry by allowing the mother to carry on prosecution and under section 495 cr.p.c (old), the mother may continue the prosecution herself or through a pleader. it was further held by their lordships as under:'we see no reason why we should be astute to find a lacuna in the procedural law by which the trial of such important cases would be stultified by the death of complainant when all that the section 198 requires is the removal of the bar.'7. in 1997(1) civil court cases248 (karnataka), dr. s.v.sunkappahad filed a crimi-nal complaint before the metropolitan magistrate against the accused under section 138 of the negotiable instruments act. the learned magistrate after recording preliminary evidence of the complainant ordered summoning of the accused. thereafter the charge was framed and the case was fixed for evidence. in the meantime, complainant died and subsequently his son s. reddappa filed an application under section 302(1) cr.p.c. (new) praying the court to substitute him in place of complainant and permit him to continue the proceedings. the said application was opposed by the accused. the learned magistrate after hearing both sides dismissed the application filed by s. reddappa and acquitted the accused. aggrieved against the same s. reddappa filed revision petition before the karnataka high court. after hearing both sides, the karnataka high court allowed the revision petition, set aside the order passed by the trial magistrate and remitted the case to the trial magistrate with a direction to take up the case at its original number and to grant permission to the petitioner to continue the proceedings from the stage at which these were interrupted and to dispose of the same in accordance with law. while allowing the revision petition, it was held by the karnataka high court that on reading the whole of sections 256 and 302 cr.p.c., 1973 and keeping in mind that acriminal case does not abate on the death of the complainant, section 256 of the cr.p.c. empowers the magistrate in agiven case to permit a fit and proper person to continue the prosecution on the death of the complainant. reliance was placed on various decisions of karnataka high court as also of the high courts of andhra pradesh, kerala and cal-cutta, detailed therein.8. so far as the authority cited as 2000 crl.l. j. 2736 (supra), relied upon by the learned counsel for the petitioner, is concerned, in my opinion, the same would have no application to the facts of the present case, in view of the law laid down by their lordships of the supreme court, in air 1967 sc 983 (supra). in fact, the reported decision would be deemed to have been given on the facts of the said case.9. section 256 of the code of criminal procedure reads as under :-'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, acquitthe 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.' 10. from a perusal of the above, it would be clear that under sub-section (1), even where the complainant is absent from the court, the magistrate is competent to adjourn the hearing of the case to some other day. it would also be clear that where the complainant is represented by a pleader or where the magistrate is of the opinion that the personal attendance of the complainant is not necessary, the magistrate may dispense with his attendance and proceed with the case. under sub-section (2), it has been provided that the provisions of sub-section (1) shall also apply to the cases where the non- appearance of the complainant is due to this death. this would mean that even where the complainant has expired during the pendency of the criminal complainant, the magistrate is competent to proceed with the case. section 256 sub-section (1) read with sub-section (2) clearly envisages a situation where the complainant has died and still the magistrate is competent to proceed with the complaint, even after noticing that the complainant is dead.11. in the present case, as'referred to above, on the death of baru singh, complainant, his son gulzar singh was allowed by the learned magistrate to continue with the criminal complaint filed by his father baru singh. the order passed by the trial magistrate was upheld by the additional session judge, placing reliance on the law laid down by their lordships of the supreme court and karnataka high court, in the cases referred to above. there is no illegality or irregularity in the orders passed by the courts below. it does not call for any interference by this court, in the present petition under section 482 cr.p.c.in view of the above, finding no merit in this petition the same is dismissed.12. petition dismissed.

Judgment:
ORDER

V.M. Jain, J.

1. This is a petition under Section 482 Cr.P.C. filed by the accused petitioners, challenging the order dated 19.3.1998 passed by the JMIC, Fatehgarh Sahib and the order dated 23,11.2000 passed by Additional Sessions Judge, Fatehgarh Sahib, upholding the order of the JMIC dated 19.3.1998, vide which Gulzar Singh, applicant-respondent, had been allowed to continue with the criminal complaint filed by his father Barii Singh against the accused under Sections 447, 427, 379, 148, 149 IPC.

2. The facts in brief, which are relevant for the decision of the present petition, are that Baru Singh filed a criminal complaint against various accused under Sections 447, 427, 379, 148, 149 IPC etc. in the Court of JMIC, Falehgarh Sahib- After recording preliminary evidence, accused were summoned. The said criminal complaint was being pursued by his son Gulzar Singh, being his attorney. During the pendency of the Criminal complaint, Baru Singh complainant expired. After death of Baru Singh, his son Gulzar Singh filed the application before the Judicial Magistrate, seeking permission to pursuethe criminal complaint The said application of Gulzar Singh was opposed by the accused, alleging therein that Gulzar Singh, applicant, had no right to continue with the Criminal complaint which was filed by his father Baru Singh. After hearing both sides and after perusing record, the JMIC vide order dated 19.3.1998 held that Gulzar Singh, applicant, was entitled to continue with the present complaint and as such, his name was ordered to be substituted in place of his father Baru Singh. Aggrieved against this order dated 19.3.1998 passed by the JMIC, all the accused filed criminal revision before the Sessions Court. The learned Additional Sessions Judge, after hearing both sides and after perusing the record, dismissed the said revision petition holding that the trial Court was justified in ordering the substitution of Gulzar Singh, applicant, in place of his father Baru Singh, on the death of Baru Singh, complainant, vide order dated 23.11.2000. Aggrieved against these orders passed by the Courts below, the accused have filed the present petition under Section 482 Cr.P.C., in this Court.

3. I have heard the learned counsel for the petitioners and have gone through the record carefully.

4. The learned counsel appearing of the accused petitioners submitted before me that the Magistrate had no power to allow Gulzar Singh son of Baru Singh, complainant, to continue with the criminal complaint against the petitioners after the death of Baru Singh. Reliance was placed on the law laid down by Rajasthan High Court in the case reported as Rattan Singh and others v. Chain Singh, 2000(3) Crl.LJ. 2736.

5. However, I find no force in this submission of the learned counsel for the petitioners. The learned Additional Sessions Judge, while dismissing the revision vide order dated 23.11.2000 and upholding the order dated 19.3.1998 passed by the trial Magistrate, had placed reliance on two judgments i.e.Ashwin Nanubhai Vyas v. The State of Maharashtra and another, AIR 1967 SC 983 and S. Reddappa v. M. Vijaya, 1997(1) Civil Court Cases 248 (Karnataka).

6. In AIR 1967 SC 983 (supra), it was held by their Lordships of the Supreme Court that the power of the court to substitute another prosecution agency under Section 495 Cr.P.C. (old) is always available. In the reported case, the Presidency Magistrate had allowed mother to carry on the prosecution after the death of complainant. The Hon'ble Supreme Court held that the Presidency Magistrate was right in proceeding with the inquiry by allowing the mother to carry on prosecution and under section 495 Cr.P.C (old), the mother may continue the prosecution herself or through a pleader. It was further held by their Lordships as under:

'We see no reason why we should be astute to find a lacuna in the procedural law by which the trial of such important cases would be stultified by the death of complainant when all that the Section 198 requires is the removal of the bar.'

7. In 1997(1) Civil Court Cases248 (Karnataka), Dr. S.V.Sunkappahad filed a crimi-nal complaint before the Metropolitan Magistrate against the accused under Section 138 of the Negotiable Instruments Act. The learned Magistrate after recording preliminary evidence of the complainant ordered summoning of the accused. Thereafter the charge was framed and the case was fixed for evidence. In the meantime, complainant died and subsequently his son S. Reddappa filed an application under Section 302(1) Cr.P.C. (new) praying the court to substitute him in place of complainant and permit him to continue the proceedings. The said application was opposed by the accused. The learned Magistrate after hearing both sides dismissed the application filed by S. Reddappa and acquitted the accused. Aggrieved against the same S. Reddappa filed revision petition before the Karnataka High Court. After hearing both sides, the Karnataka High Court allowed the revision petition, set aside the order passed by the trial Magistrate and remitted the case to the trial Magistrate with a direction to take up the case at its original number and to grant permission to the petitioner to continue the proceedings from the stage at which these were interrupted and to dispose of the same in accordance with law. While allowing the revision petition, it was held by the Karnataka High Court that on reading the whole of Sections 256 and 302 Cr.P.C., 1973 and keeping in mind that acriminal case does not abate on the death of the complainant, Section 256 of the Cr.P.C. empowers the Magistrate in agiven case to permit a fit and proper person to continue the prosecution on the death of the complainant. Reliance was placed on various decisions of Karnataka High Court as also of the High Courts of Andhra Pradesh, Kerala and Cal-cutta, detailed therein.

8. So far as the authority cited as 2000 Crl.L. J. 2736 (supra), relied upon by the learned counsel for the petitioner, is concerned, in my opinion, the same would have no application to the facts of the present case, in view of the law laid down by their Lordships of the Supreme Court, in AIR 1967 SC 983 (supra). In fact, the reported decision would be deemed to have been given on the facts of the said case.

9. Section 256 of the Code of Criminal Procedure reads as under :-

'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, acquitthe 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.'

10. From a perusal of the above, it would be clear that under sub-section (1), even where the complainant is absent from the court, the Magistrate is competent to adjourn the hearing of the case to some other day. It would also be clear that where the complainant is represented by a pleader or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. Under sub-section (2), it has been provided that the provisions of sub-section (1) shall also apply to the cases where the non- appearance of the complainant is due to this death. This would mean that even where the complainant has expired during the pendency of the criminal complainant, the Magistrate is competent to proceed with the case. Section 256 sub-section (1) read with sub-section (2) clearly envisages a situation where the complainant has died and still the Magistrate is competent to proceed with the complaint, even after noticing that the complainant is dead.

11. In the present case, as'referred to above, on the death of Baru Singh, complainant, his son Gulzar Singh was allowed by the learned Magistrate to continue with the criminal complaint filed by his father Baru Singh. The order passed by the trial Magistrate was upheld by the Additional Session Judge, placing reliance on the law laid down by their Lordships of the Supreme Court and Karnataka High Court, in the cases referred to above. There is no illegality or irregularity in the orders passed by the courts below. It does not call for any interference by this Court, in the present petition under Section 482 Cr.P.C.

In view of the above, finding no merit in this petition the same is dismissed.

12. Petition dismissed.