Non-Legal Heirs Can Continue Prosecution On Complainant's Death Even If Legal Heirs Have Not Come Forward: Kerala High Court

Dr. Justice Kauser Edappagath observed:

“Section 302 of Cr.P.C. empowers a Magistrate to permit “any person” to prosecute the complaint. The word “any person” cannot be interpreted to mean the legal heirs of the deceased complainant only. Even a non-legal heir of a complainant in a complaint case can be permitted to continue the prosecution on the death of the complainant, although his legal heirs are alive and have not come forward to prosecute the case. However, it is the discretion of the Court to grant such a permission, taking into consideration the facts and circumstances of each case and the interest of the person who sought permission to prosecute the case.”

Respondent No. 2 is the sister of the deceased person whose complaint led to the registration of C.C. No. 787 of 2011 before the Judicial Magistrate of First Class – I, Attingal. During the pendency of the case, the complainant died. The 2^nd respondent filed petition before the court to prosecute the case invoking Section 302 of the Code of Criminal Procedure. This was objected to by the petitioners but overruled. The present revision petition was filed challenging the order of the trial court.

The petitioners contended that the 2^nd respondent could not prosecute the case when the late complainant's daughter was alive and did not come forward to prosecute the case. The respondents submitted that any person can prosecute upon the complainant's death as per Section 302 CrPC.

The Court looked into the provisions of the Code of Criminal Procedure and found that there is no specific provision that permits legal heirs or legal representatives to substitute themselves upon the complainant's death.

Considering cases instituted on police reports and those based on complaints, the Court further observed:

“Thus, in trials of summons cases instituted otherwise than on a police report, even in the event of the death of a complainant, the Magistrate may proceed with the case provided the complainant is represented by a pleader or by the officer conducting the prosecution…Thus, in the trial of summons case or the trial of warrant case instituted otherwise than on a police report, it is not mandatory that the Magistrate/court shall acquit/discharge the accused on the death of the complainant.”

The Court, thus, refused to interfere with the order permitting the late complainants to prosecute the case and dismissed the petition.

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

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

Citation: 2025 LiveLaw (Ker) 518

Counsel for the petitioners: M. Dinesh

Counsel for the respondents: R.N. Sandeep, E.C. Bineesh – Senior Public Prosecutor

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