There are three kinds of cases before a Magistrate. Firstly, there are cases arising out of a complaint, secondly, there are cases arising otherwise out of a complaint, and thirdly, there are cases arising out of a police report.
In complaint cases, a complainant files a complaint before the Magistrate, and such a complainant is an important part of the proceeding. However, it is pertinent to mention that crime is not against the person but against the society at large, and therefore, the absence of the complainant is accordingly dealt with under the law.
Now, there are two kinds of cases, namely, Summons Cases and Warrant Cases.
As per the Bharatiya Nagarik Suraksha Sanhita 2023, Summons Case and Warrants Case are defined as below:
“2(x) ‘summons- case’ means a case relating to an offence, and not being a warrant-case.
2(z) “warrant-case” means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.”
In the erstwhile Criminal Procedure Code 1973, the meanings of Summons Case and Warrant Case are identical as in the B.N.S.S. The relevant provisions of Criminal procedure Code are produced herein:
It is relevant to state here that this article only deals with Complaint Cases.
What happens if the complainant dies and the case is in the nature of a Summons Case?
In summons cases, the death of the complainant has dealt in the Statute itself and the relevant provision for the same is Section 279 of B.N.S.S 2023 (erstwhile Section 256 of Criminal Procedure Code). There is an addition in the new section, wherein, the magistrate shall allow 30 days time to the complainant to appear before the Magistrate. In the previous code, there was no such time limit in this regard, and no such opportunity was provided to the complainant. However, such a condition shall not take effect in case of death of complainant.
In the case of Summons Case, upon the death of the complainant, the procedure that is to be followed is in accordance with Section 279 of B.N.S.S 2023.
However, under Section 339 of B.N.S.S 2023 (erstwhile Section 302 of Criminal Procedure Code), the permission to conduct prosecution has to be obtained from the Magistrate inquiring into or trying a case. The Magistrate is empowered to permit 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 the Government Advocate or a Public Prosecutor or Assistant Public Prosecutor shall be entitled to do so without such permission.
Above being the position, if any permission is sought for by the legal heirs of the deceased complainant to continue prosecution, the same shall be considered in its perspective by the Court dealing with the matter. This is the legal position in Summons Cases. The ball is in the court of Magistrate and he shall deal with the matter in light of Section 279 of BNSS 2023 and Section 339 of BNSS 2023, if there is any such application by the legal heirs.
What happens in the warrant cases if the complainant dies?
In case of Warrant Cases, the provision for absence of the complainant has been dealt with, however, the death of the complainant has not been dealt with in the Criminal Procedure Code 1973.
However, the Hon’ble Apex Court and the Hon’ble High Courts have settled the matter herein and stated that the application under Section 302 of the Criminal Procedure Code 1973 can be allowed in such a case by the Magistrate, and the legal heirs of the complainant may be allowed to continue the case. Such an order under Section 339 BNSS 2023 (erstwhile Section 302 of Cr.P.C) can be challenged further.
Moreover, the Order under Section 302 Section 339 BNSS 2023 (erstwhile Section 302 of Cr.P.C) cannot be challenged by means of a criminal revision. It is clear that the Court by means of an Order under Section 339 BNSS 2023 (erstwhile Section 302 of Cr.P.C) is not deciding any right, title, or interest between the parties, and thus, it is an interlocutory order, and thus, the revision is barred. Thus, Application under Section 528 of BNSS/ 482 of Cr.P.C. is the way forward.
What happens if there is no application under Section 302 of Criminal Procedure Code?
The proviso to the Section 279 of BNSS (erstwhile Section 256(1) of the CrPC1973) is important to highlight, which states 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. Hence, even in case of trial of summons, it is not necessary or mandatory that after the death of the complainant the complaint is to be rejected, in exercise of the power under proviso to Section 279(1) BNSS/ Section 256(1) CrPC, the Magistrate can proceed with the complaint.
The legal position is settled in this regard. The magistrate has wide discretion even in summons cases. By taking a technical view, justice cannot be undermined. Therefore, even if no application under Section 339 BNSS 2023 (erstwhile Section 302 of Cr.P.C) is submitted before the Court, the Magistrate has the power to proceed with the complaint.
Can the Proceedings under Section 528 of Criminal Procedure Code 1973 (erstwhile Section 482 of Criminal Procedure Code 1973) be initiated on this basis?
It is clearly settled law that merely on the basis of the death of the complainant, the warrant case or the summons case shall not abate, and any petition under Section 528 of BNSS 2023/ Section 482 Cr.P.C. praying for quashing the entire proceeding will most probably not succeed if the only ground for quashing the proceeding is the death of the complainant. This also follows from the principle of law that crime is not against the individual but against the society at large.
However, an Application under Section 482 of Criminal Procedure Code 1973 can be filed when the complainant has died and when other factors also support the case for quashing. It is pertinent to state that the death of the complainant cannot be the sole ground, and neither can it be the main ground for quashing of the proceedings. Other factors as have been enunciated in catena of judgments including State of Haryana vs. Bhajan Lal and State of M.P. vs. Laxmi Narayan case, are relevant, and if the case is made out that the continuation of the case shall constitute abuse of process of law or quashing of the proceeding is required to secure the ends of justice.