Vasudev vs Parvinder Kumar & Ors

1 No.22300 of 2006 filed in Criminal Miscellaneous No.29019-M

of 2005.

3. A brief reference to the factual aspects would be

necessary:

Appellant had filed Criminal Misc. Case No.29019-

M/2005 questioning the correctness of the order passed by

learned Sub Divisional Judicial Magistrate, Rajpura, in

respect of FIR No.23/25.1.2001 of PS City, Rajpura, relating

to a gift deed purported to have been fraudulently executed.

The appellant had filed the application alleging that

Lachman Dass father of respondent nos.1 to 3 used to

fraudulently withdraw amount from the bank account of their

mother Kishni Bai by forging her signature and FIR No.61

dated 13.3.2002 had been filed. It appears that the

prosecution had filed application praying for order in terms of

Section 91 of the Code of Criminal Procedure, 1973 (in short

`the Code'). Learned SDJM disposed of the application with

certain directions. The order dated 3.5.2004 was passed by

2 learned SDJM, Rajpura. Subsequently, another application

was filed in terms of Section 91 Cr.P.C. which was disposed of

by order dated 4.5.2005 pointing out that in view of earlier

order dated 3.5.2004 nothing further was required to be done.

The order was questioned before the Punjab and Hayana High

Court. By order dated 13.1.2006, the High Court closed the

matter with the following order:

"Learned counsel for the State and the accused submit that FIR No.61 already stands cancelled and in any case, the documents were available in Court, which could be examined in court earlier.

It is stated by the learned counsel for the State that the State is no longer interested in taking documents from the Court.

In view of the above, no ground is made out for interference in the impugned order.

Petition is dismissed."

An application to recall the order was filed primarily on

the ground that there was no order passed cancelling the FIR.

The petition had been disposed of on the basis of statement

3 made by learned counsel for the accused to the effect that FIR

has been closed. Appellant submitted that no such order had

been passed. As noted above, High Court dismissed the

petition

4. In support of the appeal, learned counsel for the

appellant submitted that till now the so-called order closing

the FIR has not seen the light of the day. Even before this

Court, the same has not been produced.

5. It is also pointed out that had any such order been

passed, the informant was required to be notified so that

protest petition can be filed before the Court.

6. Learned counsel for the State and the accused persons

submitted that obvious object of the appellant is to drag the

proceedings. It is, however, fairly conceded that the order

directing cancellation of the FIR has not been brought on

record.

4

7. Since the petition filed by the appellant was rejected by

the High Court on the basis of the statement made by the

learned counsel for the State and the accused persons that

the FIR has been cancelled, it was but natural that there

should be some order in that regard. It is not understood as

to why the same has not been brought on record as yet. If

there is no such order in existence, obviously the disposal of

the petition filed by the appellant on the ground that the FIR

has been cancelled cannot be maintained.

8. In the aforesaid circumstances, we direct the learned

counsel for the State to place before the High Court a copy of

the order purporting to cancel the FIR No.61 within a period of

four weeks from today.

9. If any such order has not been passed, the High Court

shall hear the matter afresh. Order of rejection by order dated

13.1.2006 and order in Criminal Misc. Application

22330/2006 dated 28.4.2006 stand quashed. In case the

aforesaid order is placed before the High Court it shall direct

5 the same to be placed before the concerned lower Court for

consideration. Needless to say the informant shall be granted

liberty to take action as provided in law.

10. The appeal is disposed of accordingly.

..........................................J. (DR. ARIJIT PASAYAT)

...........................................J. (DR. MUKUNDAKAM SHARMA) New Delhi:

August 12, 2008

6