REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.             OF 2008  (Arising out of SLP (Crl.) No.3234 of 2006)

Vasudev …Appellant

Versus

Parvinder Kumar & Ors. …Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge  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

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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

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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

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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.

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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

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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

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