Vasudev v. Parvinder Kumar & Ors.

_ Dr.tARIJIT PASAYAT, J. 1. Leave granted.

¶2Challenge in this appeal is to the order passed by a learned Single Judge ·of the Punjab and Haryana High Court, dismissing the petition in Criminal Miscellaneous Application No.22300 of 2006 filed in Criminal Miscellaneous No.29019-M of 2005.

¶3A brief reference to the factoal aspects would be nee-essary:

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 fraudu-lently 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 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 point-ing out that in view of earlier order, dated 3.5.2004 nothing further was required to be done. The order was questioned before the 1"- 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 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

¶4In support of the appeal, learned counsel for the appel-lant 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.

¶5It is also pointed out that had any such order been passed, the informant was required to be notified so that pro-test petition can be filed before the Court.

¶6Learned 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 di-recting cancellation of the FIR has not been brought on record.

¶7Since 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 persdns 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 ap-pellant on.the ground that the FIR has been cancelled cannot be maintained.

¶8In the afore$aid 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.

-t 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 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.

¶10The appeal is disposed of accordingly.

CRIMINALAPPELLATE JURISDICTION : CriminalAppeal No. 1263 of 2008

From the final Judgment and Order dated 28.4.2006 of the High Court of Punjab and Haryana at Chandigarh in Crimi-nal Misc. No. 29019-M of 2005

Nand Lal and K.L. Taneja for the Appellant.

i Kuldip Singh, R.K Pandey, T.P. Mishra, H.S. Sandhu and Ajay Sharma for the Respondents.