When complainant dies his pleader loses authority
When a complainant dies, the Magistrate cannot proceed with the case merely on the ground that the pleader, appointed by the deceased-complainant, is present in the court to continue the proceedings.
In such a scenario, his pleader retains no authority and cannot, therefore, be allowed to continue to proceed with the complaint in the capacity of the pleader of the deceased-complainant. Therefore, he cannot be allowed to represent the complaint, under Section 256(2) of the Criminal Procedure Code (CrPC).
Therefore, in a Criminal Case, as in a Civil Cases, the relationship of the complainant with his pleader as the client of the latter comes to an end, on the death of the complainant.
Magistrate can permit the lawyer to proceed
But the Magistrate may, for the ends of justice, allow a pleader, if the pleader is so willing, to represent the deceased-complainant as per Section 302, CrPC. The Section empowers the Magistrate to permit any person to conduct the prosecution. The words “any person” used in the Section would obviously include even a pleader.
The appearance of such a pleader, in the complaint case, would not be as a pleader of the de ceased-complainant, but as a person, who is permitted by the Magistrate to conduct the prosecution. In other words, when the pleader conducts such a prosecution, he does so on the basis of the permission given to him by the Magistrate in terms of Section 302, CrPC and not by virtue of his original appointment as pleader of the complainant.
The permission to the complainant’s lawyer to conduct the prosecution when the complainant dies is a discretionary exercise of power by the Magistrate without referring it to the superior court.
Legal heirs can continue the case
The Supreme Court in Jimmy Jahangir Madan v Bolly Cariyappa Hindley (Dead) the legal heirs were allowed to make application themselves before the court concerned to continue the prosecution or apply to the court to grant permission to them to authorize the power of attorney holders to continue the prosecution on their behalf.
In a cheque case, the Guwahati High Court said that when the son of the complainant, came forward to conduct the prosecution, there was no impediment under the law, in the light of the provisions of Section 256, CrPC read with Section 302, CrPC for the lower court to permit the son of the deceased-complainant, to represent the complainant and to allow him to appoint a pleader of his choice to represent him in the case (Kushal Kumar Talukdar v Chandra Prasad Goenka).
In prosecution cases death of the complainant makes no change
In sessions cases the prosecution is conducted by a Public Prosecutor appointed by the Government. Therefore, the death of the complainant is immaterial and the complaint can be proceeded with, despite the death of the complainant.
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