Court No. - 66

Case :- APPLICATION U/S 482 No. - 29954 of 2022

Applicant :- Somdutt And 2 Others

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- S.P.S. Chauhan,Smt. Meenakshi

Chauhan

Counsel for Opposite Party :- G.A.,Vimlendu Tripathi

Hon'ble Rajeev Misra,J.

1. Heard Mr. S. P.S. Chauhan, the learned counsel for

applicant, the learned A.G.A. for State and Mr. Vimlendu

Tripathi, the learned counsel for first informant/opposite party-

2.

2. Challenge in this application under Section 482 Cr.P.C. is to

the Cognizance taking Order /Summoning Order dated

20.08.2022 passed by Additional Chief Judicial Magisrate,

Jhansi in Criminal Misc. Case No. 92/12 of 2021 (Hariom Vs.

Somdutt and others) arising out of case crime no. 672 of 2020

under Sections 352, 324,504, 506, 307 IPC, Police Station -

Tappal , District -Aligarh, whereby court below has rejected the

police report dated 09.03.2021 submitted under Section 173 (2)

Cr.P.C. (final report), allowed the protest petition filed by first

informant opposite party-2 and simultaneously took cognizance

in exercise of jurisdiction under Section 190 (1) (b) Cr.P.C.

3. Record shows that first informant/opposite party-2 lodged an

F.I.R. dated 01.12.2020, which was registered as Case Crime

no. 672 of 2020 under Sections 352, 324,504, 506, 307 IPC,

Police Station - Tappal , District -Aligarh. In the aforesaid F.I.R.

three persons namely Somdutt, Mukesh and Deepak have been

nominated as named accused.

4. Investigating Officer after completion of statutory

investigation of concerned case crime number in terms of

Chapter XII Cr.P.C., ultimately submitted police report dated

09.03.2021 (Final Report).

5. Feeling aggrieved by the aforementioned police report, first

informant/opposite party-2 filed a protest petition dated

03.08.202. Court concerned, 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

21.08.2022 court below rejected the police report dated

09.03.2021 (final report) and simultaneously took congnizance

in exercise of jurisdiction under section 190 (1) (b) Cr.P.C.

6. Mr. S. P.S. Chauhan, the learned counsel for applicants

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 below could

have taken cognizance. Proper course for the Court below was

to disapprove the Police report (aswikar) and thereafter take

cognizance upon same. To butress his submission, he has

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. has not been

explained by first informant/opposite party-2 either in the F.I.R.

or in the statement recorded under section 161 Cr.P.C, the

proceedings itself cannot be maintained. This aspect of the

matter has been clearly ignored by court below, while

considering the protest petition/final report. For ready

reference, paragraph 8 of the judgement referred to above is

reproduced herein under:

"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