Thakur Dutt Vs. Luder Mani Cr. Appeal No. 289 of 2015 Reserved on: 8.7.2026 17.7.2026 Present: Ms Anubhuti Sharma, Advocate, for the appellant. Mr Ranbir Singh, Advocate, vice Mr L.S. Mehta, Advocate, for the respondent. Cr.MP(M) No. 3024 of 2025 The applicant has filed the present application for condonation of delay in filing the application under Section 435 of Bharatiya Nagarik Suraksha Sunita (BNSS), read with Section 528 of BNSS, for bringing on record the legal representative of deceased Thakur Dutt Sharma. It was laid down by this Court in M/s Bajwa Plywood Industry Vs. Baljinder Singh Cr.M.P. No. 2783 of 2024 decided on 30.10.2025 that there is no period of limitation for bringing on record the legal representatives of the complainant. Therefore, the application is dismissed as infructuous. Application stands disposed of. Cr. MP No. 5839 of 2025 The present application has been filed under Section 435, read with Section 528 of BNSS, for bringing on record the legal representative of deceased Thakur Dutt Sharma. It has been asserted that Thakur Dutt Sharma expired on 19.09.2023 during the pendency of the proceedings before this Court. He is survived by the legal representative mentioned in para-3 of the application. There are no other legal representatives of the late Thakur Dutt Sharma, and the right to sue survives in favour of the legal representatives. Hence, it was prayed that the present application be allowed and the legal representatives of Thakur Dutt Sharma be brought on record. No reply to the application was filed. It was laid down by the Hon’ble Supreme Court in Chand Devi Daga v. Manju K. Humatani, (2018) 1 SCC 71: (2018) 1 SCC (Cri) 264: 2017 SCC OnLine SC 1282 that the Court can permit the legal heirs to continue with the prosecution. It was observed at page 74: “8. Section 256 of the Code of Criminal Procedure, 1973 is contained in Chapter XX with the heading “Trial of summons cases by Magistrates”. Section 256, on which reliance has been placed, provides as follows: “256. Non-appearance or death of the 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 the 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.” 9. Analogous provision to Section 256 of the 1973 Code was contained in Section 247 of the Criminal Procedure Code, 1898. In Section 247, the proviso was added in 1955 saying that “where the Magistrate is of the opinion that personal attendance is not necessary, he may dispense with such attendance”. The said proviso took out the rigour of the original rule, and the whole thing was left to the discretion of the court. Sub-section (1) of Section 256 contains the above proviso in a similar manner. Thus, even in the case of a trial of summons case, 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 the proviso to Section 256(1), the Magistrate can proceed with the complaint. More so, the present is a case where offence was alleged under Sections 420, 467, 468, 471, 120-B and 201 read with Section 34 IPC for which procedure for trial of summons case was not applicable and there is no provision in Chapter XIX “Trial of warrant cases by Magistrates” containing a provision that in the event of death of the complainant the complaint is to be rejected. The Magistrate, under Section 249, has the power to discharge a case where the complainant is absent. The discharge under Section 249, however, is hedged with the condition that “the offence may be lawfully compounded or is not a cognizable offence”. Had the 1973 Code intended that in case of the death of the complainant in a warrant case, the complaint is to be rejected, the provision would have indicated any such intention, which is clearly absent. 10. In this context, a reference is made to the judgment of this Court in Ashwin Nanubhai Vyas v. State of Maharashtra [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943]. In the said case, this Court had the occasion to consider the provisions of the Criminal Procedure Code, 1898. The complainant had filed a complaint against the appellants. The complaint was filed under Sections 498 and 496 IPC. The accused was summoned. However, during the pendency of the complaint, the complainant died. The complainant's mother applied for substituting her to act as the complainant and continue the proceedings. The Magistrate permitted the mother of the complainant to pursue the complaint against which a revision was filed before the High Court, which was dismissed. Aggrieved by the order of the High Court, the appellant had come up before this Court. In the above context, this Court considered the pari materia provisions of the Criminal Procedure Code, 1898, with regard to Section 247 (now Section 256), it was specifically held that said provision does not furnish any valid analogy. In para 4 of the judgment, the following was observed: (AIR pp. 984-85) “4. Mr Keswani for Vyas, in support of the abatement of the case, relied upon the analogy of Section 431 under which appeals abate and Sections 247 and 259 under which, on the complainant remaining absent, the court can acquit or discharge the accused. These analogies do not avail him because they provide for special situations. Inquiries and trials before the court are of several kinds. Section 247 occurs in Chapter XX, which deals with the trial of summons cases by a Magistrate and Section 259 in Chapter XXI, which deals with the trial of warrant cases before Magistrates. Under the former, if the summons is issued on a complaint and the complainant on any day remains absent from the court, unless it decides to proceed with the trial, it must acquit the accused. This can only happen in the trial of cases, which are punishable with imprisonment of less than one year. This not being the trial of a summons case but a committal inquiry; Section 247 neither applies nor can it furnish any valid analogy. Similarly, Section 259, which occurs in the Chapter on the trial of warrant cases, that is to say, cases triable by a Magistrate and punishable with imprisonment exceeding one year, can furnish no analogy. Under Section 259, if the offence being tried as a warrant case is compoundable or is not cognizable, the Magistrate may discharge the accused before the charge is framed if the complainant remains absent. Once again, this section cannot apply because the Presidency Magistrate was not trying the case under Chapter XXI.” 11. This Court further had occasion to consider Section 495 of the 1898 Code (now Section 302 of the Criminal Procedure Code, 1973) and this Court laid down in para 7 as follows: (Ashwin Nanubhai case [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943], AIR p. 985) “7. Mr Keswani contends that the Presidency Magistrate has made a “substitution” of a new complainant, and there is nothing in the Code which warrants the substitution of one complainant for another. It is true that the Presidency Magistrate has used the word “substitute”, but that is not the effect of the order. What the Presidency Magistrate has done is to allow the mother to act as the complainant to continue the prosecution. This power was undoubtedly possessed by the Presidency Magistrate because of Section 495 of the Code, by which courts are empowered (with some exceptions) to authorise the conduct of prosecution by any person. The words “any person” would indubitably include the mother of the complainant in a case such as this. Section 198 itself contemplates that a complaint may be made by a person other than the person aggrieved, and there seems to us no valid reason why in such a serious case we should hold that the death of the complainant puts an end to the prosecution.” 12. At this stage, reference to Section 302 of the Criminal Procedure Code is necessary. Section 302 of the Criminal Procedure Code is contained in Chapter XXIV with the heading “General provisions as to inquiries and trials”. Section 302 relates to permission to conduct prosecution, which is to the following effect: “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.” 13. This Court had the occasion to consider Sections 256 and 302 in Balasaheb K. Thackeray v. Venkat [Balasaheb K. Thackeray v. Venkat, (2006) 5 SCC 530: (2006) 2 SCC (Cri) 630]. In the above case, a complaint was filed under Section 500 read with Section 34 IPC. A petition was filed under Section 482 of the 1973 Code against the order of issue of process in the High Court, which was dismissed. SLP was filed in this Court in which notice was issued [Balasaheb K. Thackeray v. Venkat, SLP (Cri) No. 4367 of 2003, order dated 31-10-2003 (SC), wherein it was directed: “Issue notice. Mr Ravindra Keshavrao Adsure, learned counsel, takes notice on behalf of Respondent 1 and seeks two weeks' time for filing the counter-affidavit. Time prayed for is granted. One week's time thereafter is granted for the rejoinder-affidavit. Stay of further proceedings.”] and during the pendency of the appeal, it was noted that the complainant had died. It was contended that the complaint be dismissed on the ground that the complainant is dead. This Court, in the above context, referred to Sections 256 and 302. This Court repelled the argument of the appellant that the complaint be dismissed on the ground that the complainant had died. The following was held in paras 3 to 6: (SCC pp. 531-32) “3. The learned counsel for the appellants, with reference to Section 256 of the Code, submitted that the complaint was to be dismissed on the ground of the death of the complainant. As noted above, the learned counsel for Respondent 1's legal heirs submitted that the legal heirs of the complainant shall file an application for permission to prosecute and, therefore, the complaint still survives consideration. 4. At this juncture, it is relevant to take note of what has been stated by this Court earlier on the principles applicable. In Ashwin Nanubhai Vyas v. State of Maharashtra [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943], with reference to Section 495 of the Code of Criminal Procedure, 1898 (hereinafter referred to as “the old Code”) it was held that the Magistrate had the power to permit a relative to act as the complainant to continue the prosecution. In Jimmy Jahangir Madan v. Bolly Cariyappa Hindley [Jimmy Jahangir Madan v. Bolly Cariyappa Hindley, (2004) 12 SCC 509: 2004 SCC (Cri) Supp 317] after referring to Ashwin case [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943] it was held that heir of the complainant can be allowed to file a petition under Section 302 of the Code to continue the prosecution. 5. Section 302 of the Code reads 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.’ 6. To bring in the application of Section 302 of the Code, permission to conduct the prosecution has to be obtained from the Magistrate inquiring into or trying a case. The Magistrate is empowered to 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 the Government Advocate or a Public Prosecutor or Assistant Public Prosecutor shall be entitled to do so without such permission.” 14. Two-Judge Bench in Jimmy Jahangir Madan v. Bolly Cariyappa Hindley [Jimmy Jahangir Madan v. Bolly Cariyappa Hindley, (2004) 12 SCC 509: 2004 SCC (Cri) Supp 317] referring to this Court's judgment in Ashwin Nanubhai Vyas [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943] had held that heirs of the complainant can continue the prosecution. The following was held in para 5: (SCC p. 512) “5. The question as to whether the heirs of the complainant can be allowed to file an application under Section 302 of the Code to continue the prosecution is no longer res integra as the same has been concluded by a decision of this Court in Ashwin Nanubhai Vyas v. State of Maharashtra [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943] in which case the Court was dealing with a case under Section 495 of the Code of Criminal Procedure, 1898, which is corresponding to Section 302 of the Code. In that case, it was laid down that upon the death of the complainant, under the provisions of Section 495 of the said Code, the mother of the complainant could be allowed to continue the prosecution. It was further laid down that she could make the application either herself or through a pleader. Undisputedly, in the present case, the heirs themselves have not filed the applications to continue the prosecution; rather, the same have been filed by their power-of-attorney holders. …” In the present case, the averments that late Thakur Dutt Sharma is survived by the legal representatives mentioned in the application and no other legal heir is alive, is duly supported by an affidavit, and there is no reason to disbelieve this. Hence, the present application is allowed, and the legal representatives mentioned in paragraph-3 of the application are ordered to be brought on record. The present application stands disposed of. Cr. Appeal No. 289 of 2025 Necessary entry be made in the memo of parties. The amended memo of parties be filed within two weeks, and the matter be listed thereafter. (Rakesh Kainthla) Judge 17th July, 2026 (Chander)