Dabeer and Others v. State of U.P). It is next contended that F.I.R. giving rise to present
Case Details
Court No. - 81 Case :- APPLICATION U/S 482 No. - 17802 of 2022 Applicant :- Deepak Chauhan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Gaurav Kakkar Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Legal Reasoning
Heard Mr. Gaurav Kakkar, the learned counsel for applicant and the learned A.G.A. for State. Challenge in this application is to the order dated 2.6.2022, passed by Chief Judicial Magisrate, Jhansi in F.R. Misc. Case No. 347 of 2019, under sections 376, 504, 506 IPC, Police Station - Kotwali , District Jhansi, arising out of Case Crime No. 747 of 2018, under sections 376, 504, 506 IPC, Police Station - Kotwali , District Jhansi, now pending in the Court of Chief Judicial Magistrate, Jhansi. Record shows that in respect of an incident which is alleged to have occurred on 17.8.2018, a belated F.I.R. dated 21.11.2018 was lodged by first informant/opposite party-2 and was registered as Case Crime No. 747 of 2018, under sections 376, 504, 506 IPC, Police Station - Kotwali , District Jhansi. In the aforesaid F.I.R. applicant has been nominated as solitary named accused. After lodging of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. He examined first informant and other witnesses under section 161 Cr.P.C. The prosecutrix was also medically examined and her statement under section 164 Cr.P.C. was also recorded. However, on the basis of material collected by Investigating Officer during course of investigation, he came to the conclusion that offence as complained of is not established. Accordingly, he opined to submit final report. Accordingly Investigating Officer submitted Police report dated 14.3.2019 (Final report). Feeling aggrieved by the aforementioned police report, first informant/opposite party-2 filed a protest petition dated 1.2.2022. Chief Judicial Magistrate, proceeded to consider the Police report so submitted in the light of protest petition filed by first informant/opposite party-2. Ultimately, by means of order dated 2.6.2022, Chief Judicial Magistrate, Jhansi rejected the final report and simultaneously took congnizance in exercise of his jurisdiction under section 190 (1) (b) Cr.P.C. Mr. Gaurav Kakkar, the learned Counsel contends that once the Police report under section 173 (2) Cr.P.C. was itself rejected by Court below then there was no police report before Court below on which court could have taken cognizance. Remedy for the Court below was to disapprove the Police report (aswikar) and thereafter take cognizance upon same. He has also referred to the judgement of this Court in Application U/S 482 No. 14899 of 2022 (Dabeer and Others Vs. State of U.P). It is next contended that F.I.R. giving rise to present criminal proceedings has been lodged with delay of almost three months from the date of occurrence i.e. 17.8.2018. Placing reliance upon paragraph 8 of the judgement of Supreme Court in P. Rajagopal Vs. State of Tamilnadu, AIR 2019 SC 2866, he contends that since delay in lodging the F.I.R. itself has not been explained by prosecutrix either in the F.I.R. or in the statement recorded under section 161 Cr.P.C, the proceedings cannot be maintained. This aspect of the matter has been clearly undertaken while considering the protest petition/final report. For ready reference, same is reproduced: "8. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely. [See Apren Joseph v. State of Kerala, (1973) 3 SCC 114; Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1]. In the matter on hand, the entire family of PW1 was at the mercy of Accused No. 1, who was very rich and influential. Accused No.1 acted as a benefactor to the family and had helped them financially and otherwise on multiple occasions. Under such circumstances, PW1 might have been reluctant to lodge a complaint immediately after the occurrence of the said incident, especially when Accused No. 1 had employed his henchmen to keep the house and movements of PW1 and her family under surveillance. Moreover, no material has been brought to our notice by the defence to prove that the delay in filing the F.I.R. was with the intention of false implication. Thus, the explanation given by PW1 for the delay remains untainted. In our considered opinion, looking at the totality of the facts and circumstances, the Trial Court and the High Court were justified in condoning the delay and in concluding that the said delay was not vital to the case of the prosecution." Per contra, the learned A.G.A. has opposed the present application. He submits that from the material on record, it cannot be said that there is no evidence in the papers accompanying the Police report. As such, no illegality has been committed by Chief Judicial Magistrate in taking cognizance upon police report in exercise of jurisdiction under section 190 (1)(b) Cr.P.C. However, learned A.G.A. could not dislodge the legal submissions urged by learned counsel for applicant.
Decision
Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that once the Magistrate has rejected the police report (final report) then he could not have taken cognizance upon aforesaid Police report. The course of action open to the Magistrate was to disapprove (Aswikar) the report. This having not been done, the Impugned order is illegal and perverse and unsustainable in law. In view of above, present application succeeds and is liable to be allowed. It is accordingly allowed. Impugned summoning order dated 2.6.2022, passed by Chief Judicial Magisrate, Jhansi in F.R. Misc. Case No. 347 of 2019, under sections 376, 504, 506 IPC, Police Station - Kotwali , District Jhansi, arising out of Case Crime No. 747 of 2018, under sections 376, 504, 506 IPC, Police Station - Kotwali , District Jhansi, now pending in the Court of Chief Judicial Magistrate, Jhansi is hereby quashed. Matter is remitted to court below for decision afresh in the light of observations made herein above. Order Date :- 2.9.2022 Arshad Digitally signed by ARSHAD MAHMOOD Date: 2022.09.06 10:19:08 IST Reason: Location: High Court of Judicature at Allahabad