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Judgment
Avneesh Jhingan, J
The matter is taken up for hearing through video conference due to COVID-19 situation.
This petition is filed seeking quashing of FIR No. 135, dated 6th July, 2001, under Sections 177, 191, 192, 193, 199, 405, 406, 420, 421, 463, 465, 467,
468, 481, 120-B, 506 read with 34 IPC, registered at Police Station Sector 19, Chandigarh.
The relevant facts of the case are that the present case is result of litigation between two brothers with regard to Will made by their father. The FIR
was at the behest of Anil Kumar Sharma. There are allegations that the Will was forged. The parties are in civil litigation whereby the order passed
by the Estate Officer, UT Chandigarh was challenged.
In the FIR, on 6th December, 2001 an untraced report was filed. The Judicial Magistrate vide order dated 11th January, 2003 ordered for re-
investigation. On 30th April, 2005 again an un-traced report was filed. The aggrieved complainant moved an application to the Senior Superintendent
of Police, Chandigarh, the investigation was marked tocrime branch. On 14th March, 2007 a cancellation report was filed. Filing of cancellation report
was challenged and on 20th August, 2011, Judicial Magistrate ordered further investigation.
The order of re-investigation was challenged by the complainant as well as UT Chandigarh. The revision petitions were allowed. The relevant
portion is quoted below:-
“ In the present case, the learned Trial Magistrate has sent the case for re-investigation for more than two times. Therefore, in view of above said
proposition of law, both the revision petitions are accepted and the order dated 20.08.2011 is set aside and the case is remanded to the Court of first
instance with the direction either to accept the cancellation report or take cognizance under Section 190(1)(c) of Code of Criminal Procedure, after
going through the material available on record. Parties through counsel are directed to appear before the Court of Learned Trial Magistrate on
15.01.2014 at 10.00 a.m. Sharp.
Original judgment be kept in Crl. Revision No. 288 of 17.11.2011 titled 'State Vs. Anil Kumar', but a copy of this judgment be placed in the connected
Crl. Revision No. 387 of 17.10.2012 titled as 'Anil Kumar Sharma Vs. State'. Copy of this Judgment along with trial Court record be sent to the Court
concerned and the revision files be consigned to the Record Room.â€
After remand the Judicial Magistrate vide order dated 19th May, 2016 accepted the un-traced report giving liberty to the complainant to rebut the
cancellation report by way of his protest petition.
The order was challenged by complainant by filing Revision. The revision petition was allowed on 15th February, 2018, the order was set aside and the
trial Court was directed to pass afresh order after hearing the submission of complainant.
In proceedings after remand, in the interim orders, it was wrongly mentioned that the accused was on bail. The mistake was rectified by order dated
29th February, 2020 and the attendance of the counsel for the petitioner was marked in the zimni order. However, on 11th January, 2021 the following
order was passed:
“Present:         Sh. Lovneesh, Ld. APP for the State.
None for accused.
None has come present on behalf of accused neither any exemption application has been moved on behalf of him. Let, notice to accused be issued for
24.02.2021.â€
Pursuance to the passing of the order dated 11th January, 2021 summons were issued for 24th February, 2021. Hence the present petition. Learned
counsel for the petitioners submits that the impugned order is erroneous. The earlier error, which was rectified on 29th February, 2020 was repeated in
the impugned order.
Learned counsel for UT Chandigarh though opposes the prayer but fairly submitted that pending proceedings were only result of remand order.
Learned counsel for the complainant/resondent No.2 also argues on the same lines and submits that there is a procedural lapse.
Learned counsel for the petitioners at this stage, restricts his prayer to the challenge of the impugned order and consequential summons issued.
The matter was remanded by the Additional Sessions Judge for giving an opportunity to the complainant with regard to the cancellation report. There
was no occasion for the Magistrate to record that none is present on behalf of the accused and issuing notice resulting into issuance of impugned
summons.
The order dated 11th January, 2021 as well as consequential impugned summons are set aside and the matter is remitted back.
The petition is allowed.