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Once a court rejects police report, it cannot take cognisance over the same: Allahabad High Court

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The Allahabad High Court has observed that once a court has rejected the final report submitted by the police, it cannot take cognisance on the same.

The Single Bench of Justice Rajeev Misra observed that the Additional Sessions Judge/Special Judge (POCSO) Act, Bijnor should have disapproved (Aswikar) the report. This having not been done, the impugned order was illegal, perverse and unsustainable in law, it added.

The High Court passed the order on a petition filed by Shahid and three others.

The challenge in this application under Section 482 CrPC was to the order dated 2.4.2022, passed by the court below in FIR’s Case under Sections 452, 376, 120B 506 IPC, and Sections 7/8 POCSO Act, Police Station – Afzalgarh, District Bijnor now pending in the Court of Additional District and Sessions Judge/Special Judge (POCSO), Bijnor.

The Court observed, “Record shows that in respect of an incident which is alleged to have occurred on 26.5.2018, a delayed FIR dated 6.6.2019 was lodged by first informant/opposite party-2 Rifaqat and was registered as Case under sections 452, 376, 120B 506 IPC, and Sections 7/8 POCSO Act, Police Station – Afzalgarh, District Bijnor.”

It noted that in the aforesaid FIR five persons namely, Shahnawaz @ Shanu, Shahid, Rashid, Shawqat and Aslam have been nominated as named accused.After lodging the aforementioned FIR, the Investigating Officer proceeded with statutory investigation of the concerned case crime number in terms of Chapter XII CrPC.

The High Court was apprised that the IO examined the first informant and other witnesses under Section 161 CrPC. The prosecutrix was also medically examined. However, no sign was found on her body by the Doctor to conclude commission of sexual assault. Subsequently, the statement of the prosecutrix under section 164 CrPC was also recorded.

On the basis of above and other material collected by the IO during the course of investigation, he came to the conclusion that offence as complained of is not established. He submitted the Police report on November 10, 2021 (Final report).

The first informant/opposite party-2 then filed a protest petition on March 31, 2022.

Additional District and Sessions Judge/Special Judge (POCSO), Bijnor, proceeded to consider the Police report so submitted in the light of protest petition filed by first informant/opposite party-2, noted the High Court.

Ultimately, by means of order dated 2.4.2022 , Additional District and Sessions Judge/Special Judge (POCSO), Bijnor rejected the final report and simultaneously took cognizance in exercise of his jurisdiction under section 190 (1) (b) CrPC.

Counsel Mithilesh Tiwari contended that once the Police report under Section 173 (2) CrPC was itself rejected by the court below, then there was no report before the court to take cognizance on.

Remedy for the Court below was to disapprove the Police report (aswikar) and thereafter take cognizance upon the same. The Counsel further referred to the judgement of the Court in Application under Section 482 No 14899 of 2022 (Dabeer and Others vs State of UP).

It was next contended that the FIR giving rise to the criminal proceedings has been lodged with delay of more than one year from the date of occurrence, which was May 26, 2018.

Placing reliance upon the judgement of Supreme Court in P Rajagopal Vs State of Tamilnadu, AIR 2019 SC 2866, he contends that since delay in lodging the FIR itself has not been explained by prosecution either in the FIR or in the statement recorded under section 161 CrPC, the proceedings cannot be maintained. This aspect of the matter has been clearly ignored while considering the protest petition/final report, added the Counsel.

Per contra, the AGA opposed the application, submitting that from the material on record, it cannot be said that there is no evidence against applicants in the papers accompanying the Police report.

As such, no illegality has been committed by the court below in taking cognizance upon police report in exercise of jurisdiction under section 190 (1)(b) CrPC. However, the AGA could not dislodge the legal submissions urged by the counsel for the applicant.

“Having heard the counsel for applicants, the A.G.A for State and upon perusal of record, the Court found that once Court below rejected the police report (final report) then Court below could not have taken cognizance upon aforesaid Police report. The course of action open to Court below was to disapprove (Aswikar) the report. This having not been done, the Impugned order is illegal perverse and unsustainable in law.

In view of above, the application succeeds and is liable to be allowed”, the Court observed while allowing the application.

“Impugned summoning order dated 2.4.2022, passed by Additional Sessions Judge/Special Judge (POCSO) Act, Bijnor in FIR Case No 1319 of 2021 (Rifaqat Vs Shahnawaz @ Shanu and Others), under sections 452, 376, 120 B IPC and Sections 3/7 POCSO Act, Police Station – Afzal Garh, District Bijnor, arising out of Case Crime No 0151 of 2019 (State Vs Shehnawaz and Others), under sections 452, 376, 120B 506 IPC, and Sections 7/8 POCSO Act, Police Station – Afzalgarh, District Bijnor now pending in the Court of Additional District and Sessions Judge/Special Judge (POCSO), Bijnor is hereby quashed”, the Court ordered. 

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