Jai Singh through Lr Sunil Chauhan Vs Kishori Lal and Ors.

For the Petitioner : Mr. Y.P.Sood, Advocate. : For Respondents Mr. Narender Singh, Advocate, No.1. Mr. Ajit Sharma, Deputy Advocate General, for respondents No. 2 and 3/State.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition against the

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order dated 29.07.2022 passed by learned Additional Chief Judicial Magistrate, Court No.1 Rohroo, District Shimla H.P.(learned Trial

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Court) vide which final report submitted the police was accepted.

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Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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( The parties shall hereinafter be referred to in the same manner in which they are arrayed before the learned Trial Court for convenience.)

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Briefly stated, the facts giving rise to the present petition are that informant made a complaint to the Police stating therein that on 15.10.2018 at 3:30 p.m. he was present in his courtyard. Kishori Lal and his labourers were digging the land near his boundary wall for constructing a septic tank. The informant told them not to dig the land, as it would damage the house. Kishori Lal replied that that is why he is digging the land. He intended to damage of the house of the informant by digging the land. He attacked the informant with a spade. Rajeev (accused brother) also reached on the spot. He was heavily intoxicated. He threatened to kill the informant. Both of them entered into courtyard of the informant. The informant son tried to rescue him, however, Kishori Lal and Rajeev attached him and snatched his gold chain. He (informant’s son) sustained injuries. The informant was also beaten. The police registered the F.I.R. and conducted the investigation. The victims were sent for medical examination and the Medical Officer reported that they had sustained simple injuries. It was found during the investigation that the incident

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had taken place on 15.10.2018 but the matter was reported on 17.10.2018. An F.I.R. No. 138 of 2018 for the commission of offences punishable under Sections 451, 323, 325, 504 and 506 of Indian Penal Code (IPC) was registered against the informant and his son Sunil regarding this incident. The place of incident was found to be owned by Kishori Lal. The informant and his son had objected to the digging of the land which led to the quarrel. The informant and his son attacked on Kishori Lal and his labourers with various implements. Kishori Lal sustained injuries in the incident. Hence, it was prayed that F.I.R. be cancelled.

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The learned Trial Court issued the notice to the informant, who filed a protest petition asserting that the report submitted by the police was incorrect. The police did not investigate the matter properly. Kishori Lal and his labourers the aggressor, who inflicted the injuries to the informant and his son, therefore, it was prayed that final report be rejected.

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Petition was opposed by filing a status report was filed by the police reproducing the contents of the final report.

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A rejoinder denying the contents of the status report and affirming those of the petition was filed.

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The informant filed his affidavit Ext. CW-1/A and affidavit of Rohit Sharma, Ext.CW-2/A.

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Learned Trial Court held that the matter was reported to the police after two days. No explanation was given for the delay. The police found that there was no case of criminal trespass. The informant failed to assign any reason as to why the matter was not reported on the date of incident. Hence, the protest petition was dismissed.

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Being aggrieved from the order passed by the learned Trial Court, the informant filed the present petition asserting that the learned Trial Court erred in dismissing the protest petition. The procedure laid down in Chapter 25 of the Code of Criminal Procedure was not followed. Learned Trial Court was required to determine whether a prima facie case is made out against the accused, it could not have appreciated the material on merits. It was duly established that an altercation had taken place between the parties. Therefore, it was prayed that the present petition be allowed and the order passed by learned Trial Court be set aside.

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I have heard Mr. Y.P.Sood, learned counsel for the petitioner, Mr. Narender Singh, learned Counsel for respondent

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No.1 and Mr. Ajit Sharma, and learned Deputy Advocate General for respondent No.2/State.

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Mr. Y.P. Sood, learned counsel for the petitioner submitted that the learned Trial Court erred in dismissing the protest petition. Learned Trial Court had to see a prima facie case. The affect of delay was to be seen at the conclusion of the Trial. The incident was not disputed and Investigating Officer was not competent to determine who was the aggressor. Hence, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

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Mr. Narender Singh, learned Counsel for the respondent No.1 submitted that the police conducted the investigation and found that incident had occurred on the land of Kishori. Informant and his son had attached Kishori Lal and his labourers. They sustained multiple injuries. The informant and his son were the aggressors. Therefore, he prayed that prayed that present petition be dismissed.

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Mr. Ajit Sharma, learned Deputy Advocate General for the respondents 2 and 3/State adopted by the submissions advanced by Mr. Narender Singh, learned counsel for respondent

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No.1 and submitted that result of investigation showed that informant and his son were aggressors. Learned Trial Court had rightly held that no offence was made out against the victim. Therefore, he prayed that the present petition.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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Learned Trial Court held that incident was not in dispute. A quarrel had taken place between the parties. Learned Trial Court proceeded to dismiss the petition on the ground that the incident had taken place in the land of Kishori Lal and the matter was reported after delay of two days.

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The learned Trial Court could not have dismissed the protest petition merely on the ground of delay. The delay may be a circumstance to put the Court on caution regarding the embellishment and exaggeration. In the prosecution case but it cannot be the sole factor to dismiss a criminal complaint. It was laid down by Hon’ble Supreme Court in Punit Beriwala v State (NCT) of Delhi, 2025 SCC OnLine SC 983, that the delay cannot be used to quash the criminal case. It was observed:-

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“37. It is settled law that delay in registration of the FIR for offences punishable with imprisonment of more than three years cannot be the basis of interdicting a criminal investigation. The delay will assume importance only when the complainant fails to give a plausible explanation and whether the explanation is plausible or not, has to be decided by the Trial Court only after recording the evidence. In this context, the Supreme Court in Skoda Auto Volkswagen (India) Private Limited v. State of Uttar Pradesh and Others (2021) 5 SCC 795 has held, “The mere delay on the part of the third respondent complainant in lodging the complaint, cannot by itself be a ground to quash the FIR. The law is too well settled on this aspect to warrant any reference to precedents…..”

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It was rightly submitted on behalf of informant that an

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opportunity should have been given to the petitioner/informant to explain the reason for the delay and the delay could have weighed against the informant at the time of conclusion of the Trial.

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The incident is not in dispute, and F.I.R. was lodged against the informant. It is also not in dispute that informant and his son had sustained injuries. It was laid down by Hon’ble Supreme Court in Punit Beriwala ( supra ) that normally cross cases should not be allowed to progress to their normal conclusion. It was observed:

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44 . In the context of cross cases, this Court in Nathi Lal v. State of Uttar Pradesh (1990) SCC (Cri) 638 has held as under:-

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“2. We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross

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case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other.”

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45 . Even though the above decision was rendered in respect of trial of cross cases, this Court is of the opinion that in cases involving cross-FIRs, it would be prudent and fair if the investigation was carried out in a comprehensive manner.

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It was concluded that the incident had occurred in the

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land of Kishori Lal; however, no document annexed to the final report in support of this conclusion. Final report specifically mention that land of the parties was located adjacent to each other; therefore, only a demarcation could have identified the land of the respective parties and in absence of the demarcation, the conclusion that the incident had taken place in the land of the victim could not have been drawn.

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The police recorded the statements of informant and his son, who stated that Kishori Lal was aggressor. The police also recorded the statement of the labourers and son of Kishori Lal,

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who stated that informant party was the aggressor. The correctness of these statements could have been established by conducting the trial and testing the veracity of the witnesses by cross-examination. The conclusion that the informant party was the aggressor could not have been drawn from the contradictory statements recoded by the police.

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Learned Trial Court called upon the informant to lead the evidence and accepted the affidavit of informant and Rohit Sharma. The Code of Criminal Procedure does not permit the filing of the affidavit. On the other hand Section 200 of Cr.P.C. specifically provides that the Court taking cognizance of the offence shall examine the complainant and his witnesses present, if any, on oath and reduced the substance of the information to writing. Therefore, the procedure adopted by the learned Court accepting the affidavit is contrary to the provisions of Section 200 of Cr.P.C.

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In view of above, the present petition is allowed and the order dated 29.07.2022, passed by the learned Trial Court is set aside and the learned Trial Court is directed to proceed further with the matter as per the law.

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