Safiya Malik

The High Court of Kerala Single Bench of Justice Dr. Kauser Edappagath held that even a non-legal heir of a complainant can be permitted to continue a private complaint prosecution under Section 302 of the Code of Criminal Procedure, 1973. The Court dismissed the criminal revision petition filed by the accused, thereby affirming the trial court’s order that allowed the complainant’s sister to pursue the case despite the presence of a surviving daughter of the deceased complainant. The Court directed that the permission granted to the non-legal heir stood valid and that the proceedings before the Judicial First-Class Magistrate, Attingal, would continue accordingly.

The matter arose from a protest complaint initially filed by one Sri. Sudarsanan, who was the brother of the second respondent in the present revision petition. The offences alleged against the accused fell under Sections 395, 465, 467, 468, 471 read with Section 34 of the Indian Penal Code.

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The sequence of events began in 2009, when a private complaint was filed as Crl.M.P. No. 5151 of 2009 before the Judicial First-Class Magistrate Court-I, Attingal. Acting under Section 156(3) of the Cr.P.C., the trial court referred the complaint to the Chirayinkeezhu Police, which registered the matter as Crime No. 48 of 2010. After investigation, the police filed a negative final report on 20 January 2010, referring the case without prosecution.

In response, the complainant submitted a protest complaint, which was taken on file by the Magistrate as C.C. No. 787 of 2011. The trial court took cognizance of the alleged offences and issued process to the accused, who duly entered appearance.

During the pendency of the proceedings, the complainant passed away on 14 February 2019. Subsequently, his sister, Sivakumari (respondent No. 2 herein), filed C.M.P. No. 1512 of 2019 under Section 302 Cr.P.C. seeking permission to continue the prosecution.

The accused objected to this petition, arguing that since the complainant’s daughter—his legal heir under the Hindu Succession Act—was alive, she alone had the right to pursue the complaint. They contended that a non-legal heir could not maintain such a petition.

Despite these objections, the trial court allowed the petition on 14 January 2020, granting the sister of the deceased complainant permission to conduct the prosecution. Aggrieved by this, the accused filed Criminal Revision Petition No. 206 of 2020 before the High Court of Kerala.

Justice Dr. Kauser Edappagath considered the rival contentions and examined the statutory framework. The Court recorded: “Can a non-legal heir of a complainant in a complaint case be permitted to continue the prosecution on the death of the complainant when his legal heirs are alive and have not come forward to prosecute the case? This is the interesting question involved in this criminal revision petition.”

The Court acknowledged that there was no express provision in the Code of Criminal Procedure for substitution of a complainant in case of death during a private complaint. It observed: “Though there is no specific provision in Cr.P.C to substitute a new complainant in a complaint case in the place of the deceased complainant, the Magistrate/court has power under Section 302 to permit any person to continue the prosecution.”

Referring to Section 302 Cr.P.C., the Court quoted: “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.”

The Court further recorded precedents, including Ashwin Nanubhai Vyas v. State of Maharashtra (AIR 1967 SC 983) and Balasaheb K. Thackeray v. Venkat alias Babru (2006) 5 SCC 530, which upheld that legal heirs may continue prosecutions under Section 302. However, it clarified the ambit of the phrase “any person.”

On the argument that only the complainant’s legal heirs could prosecute, the Court stated: “The concept of locus standi of the complainant is alien to criminal jurisprudence except when the statute specifically provides.”

It observed that Section 190 Cr.P.C. permitted initiation of criminal law by any person, with limited exceptions in offences relating to marriage and defamation.

“When any person other than the victim is entitled to file a complaint, there seems to be no valid reason to contend that any person other than the legal heir of the complainant is disentitled from prosecuting the case on his death.”

The Court categorically held: “The word ‘any person’ in Section 302 would undoubtedly include the sister of the deceased complainant in a case such as this.”

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Therefore, the trial court’s order was found to be legal and proper.

The High Court recorded: “The contention of the petitioners that since the legal heir of the deceased complainant has not come forward with a petition under Section 302 of Cr.P.C. to prosecute the complaint, the petition filed by the non-legal heir is not maintainable cannot be accepted.”

It concluded: “The trial Court has rightly allowed the petition. I see no illegality or impropriety in the impugned order. Accordingly, this criminal revision petition is dismissed.”

Advocates Representing the Parties:

For the Petitioners: Shri. M. Dinesh, Advocate

For the Respondents: Shri. R.N. Sandeep, Advocate; Shri. E.C. Bineesh, Senior Public Prosecutor

Case Title: Sukumaran & Ors v. State of Kerala & Anr

Neutral Citation: 2025:KER:59086

Case Number: Crl. Rev. Pet. No. 206 of 2020

Bench: Justice Dr. Kauser Edappagath