Neutral Citation No. ( 2025:HHC:17985 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 448 of 2025 Reserved on: 26.05.2025 Date of Decision: 6th June, 2025. Mohinder Singh ...Petitioner Versus Chunni Lal Negi (deceased) through LRs ...Respondents Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. Surinder Kumar Saklani, Advocate. Rakesh Kainthla, Judge The petitioner has filed the present petition for quashing the proceedings pending before the learned Additional Chief Judicial Magistrate, Court No.1, Shimla (learned Trial Court). It has been asserted that the original complainant-father of respondents No.1 and 2, namely Chuni Lal Negi, filed a complaint against the petitioner (accused before the learned Trial Court) for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short ‘NI Act’). 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Neutral Citation No. ( 2025:HHC:17985 ) The learned Trial Court summoned the petitioner/accused and served him with a notice of accusation. The complainant (Chuni Lal Negi died in the meantime. An application under Section 256 of Cr.P.C. was filed; however, no order was passed on the application, and the proceedings were continued. The proceedings after the death of the complainant are null and void. The learned Trial Court proceeded with the matter for about 09 years without passing a specific order on the application. The reply was sought from the petitioner by learned Trial Court on 12.08.2024 and 04.09.2024. Therefore, it was prayed that the present petition be allowed and the proceedings pending before the learned Trial Court be quashed. 2. I have heard Mr. Surinder Saklani, learned counsel for the petitioner/accused, who has submitted that the learned Trial Court erred in continuing with the proceedings after the death of the complainant. An application under Section 256 of the Cr. P.C. was filed, but it was not decided. The continuation of the proceedings before the learned Trial Court is bad, therefore, he prayed that the present petition be allowed and the proceedings pending before the learned Trial Court be set aside. 3 Neutral Citation No. ( 2025:HHC:17985 ) 3. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 4. The law relating to quashing of criminal cases was explained by the Hon’ble Supreme Court in B.N. John v. State of U.P., 2025 SCC OnLine SC 7 as under: - “7. As far as the quashing of criminal cases is concerned, it is now more or less well settled as regards the principles to be applied by the court. In this regard, one may refer to the decision of this Court in State of Haryana v. Ch. Bhajan Lal, 1992 Supp (1) SCC 335, wherein this Court has summarised some of the principles under which FIR/complaints/criminal cases could be quashed in the following words: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their 4 Neutral Citation No. ( 2025:HHC:17985 ) entirety, do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable based on which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an 5 Neutral Citation No. ( 2025:HHC:17985 ) ulterior motive for wreaking vengeance on the accused and to spite him due to a private and personal grudge.” (emphasis added) 8. Of the aforesaid criteria, clause no. (1), (4) and (6) would be of relevance to us in this case. In clause (1) it has been mentioned that where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, then the FIR or the complaint can be quashed. As per clause (4), where the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order dated by the Magistrate as contemplated under Section 155 (2) of the CrPC, and in such a situation, the FIR can be quashed. Similarly, as provided under clause (6), if there is an express legal bar engrafted in any of the provisions of the CrPC or the concerned Act under which the criminal proceedings are instituted, such proceedings can be quashed.” 5. This position was reiterated in Ajay Malik v. State of Uttarakhand, 2025 SCC OnLine SC 185, wherein it was observed: “8. It is well established that a High Court, in exercising its extraordinary powers under Section 482 of the CrPC, may issue orders to prevent the abuse of court processes or to secure the ends of justice. These inherent powers are neither controlled nor limited by any other statutory provision. However, given the broad and profound nature of this authority, the High Court must exercise it sparingly. The conditions for invoking such powers are embedded within Section 482 of the CrPC itself, allowing the High Court to act only in cases of clear 6 Neutral Citation No. ( 2025:HHC:17985 ) abuse of process or where intervention is essential to uphold the ends of justice. 9. It is in this backdrop that this Court, over the course of several decades, has laid down the principles and guidelines that High Courts must follow before quashing criminal proceedings at the threshold, thereby pre-empting the Prosecution from building its case before the Trial Court. The grounds for quashing, inter alia, contemplate the following situations : (i) the criminal complaint has been filed with mala fides; (ii) the FIR represents an abuse of the legal process; (iii) no prima facie offence is made out; (iv) the dispute is civil in nature; (v.) the complaint contains vague and omnibus allegations; and (vi) the parties are willing to settle and compound the dispute amicably (State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335) 6. The present petition is to be decided as per the parameters laid down by the Hon’ble Supreme Court. 7. It was submitted that the continuation of the proceedings after the death of the complainant is bad. This submission is not acceptable. 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 it is not mandatory to dismiss the complaint under Section 256 of CrPC and 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 7 Neutral Citation No. ( 2025:HHC:17985 ) summons cases by Magistrates”. Section 256, on which reliance has been placed, provides as follows: “256. Non-appearance or death of 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 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 8 Neutral Citation No. ( 2025:HHC:17985 ) 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 Maharash- tra [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 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 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 9 Neutral Citation No. ( 2025:HHC:17985 ) 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, 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 10 Neutral Citation No. ( 2025:HHC:17985 ) 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 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 11 Neutral Citation No. ( 2025:HHC:17985 ) 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 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. 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 12 Neutral Citation No. ( 2025:HHC:17985 ) 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 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 Nanub- hai 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. 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 13 Neutral Citation No. ( 2025:HHC:17985 ) 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 Nanub- hai 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. …” 8. It is undisputed that the legal representatives have filed an application under Section 256 of the Cr. P.C. and the petitioner has also filed a reply to the application. In view of Chand Devi Daga (supra), the learned Magistrate has jurisdiction to bring the legal representatives on record, and he is not bound to dismiss the complaint on the death of the complainant. 9. It was specifically stated in the petition that the application has not been decided so far; therefore, the petitioner cannot claim that the proceedings pending before the learned Trial Court are without jurisdiction before the decision of the application. 14 Neutral Citation No. ( 2025:HHC:17985 ) 10. It was submitted that the learned Trial Court had also framed the notice of accusation without deciding the application. This grievance has substance. The learned Trial Court should have disposed of the application before proceeding further with the complaint. 11. Since, application under Section 256 of Cr.P.C. has not been decided by the learned Trial Court, therefore, the present petition is disposed of with a direction to the learned Trial Court to decide the said application as per the law before proceeding further. 12. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing whatsoever on the merits of the case. (Rakesh Kainthla) Judge 6th June, 2025 (Saurav Pathania)