the matter was reported to the police but the police did not take any action

Supreme Court of India
Dilawar Singh vs State Of Delhi on 5 September, 2007
Author: . A Pasayat
Bench: Dr. Arijit Pasayat, D.K. Jain
 CASE NO.: Appeal (crl.) 491 of 2002
J U D G M E N T CRIMINAL APPEAL NO.491 OF 2002 Dr. ARIJIT PASAYAT, J9.

The complainant has attempted to explain the delay by stating that the matter was reported to the
police but the police did not take any action. Such statement can hardly be taken to have explained
the delay. It is the simplest of things to contend that the police, though report had been lodged with
it, had not taken any steps. But it has to be established by calling for the necessary records from the
police to substantiate that in fact a report with the police had been lodged and that the police failed
to take up the case. The principle has been statutorily recognised in Section 210 of the Cr.P.C. which
enjoins upon the Magistrate, when it is made to appear before him either during the inquiry or the
trial of a complaint, that a complaint before the police is pending investigation in the same matter,
he is to stop the proceeding in the complaint case and is to call for a report from the police. After the
report is received from the police, he is to take up the matter together and if cognizance has been
taken on the police report, he is to try the complaint case along with the G.R. Case as if both the
cases are instituted upon police report. The aim of the provision is to safeguard the interest of the
accused from unnecessary harassment. The provisions of Section 210, Cr.P.C, are mandatory in
nature. It may be true that non- compliance of the provisions of Section 210, Cr.P.C., is not ipso
facto fatal to the prosecution because of the provision of Section 465 Cr. P.C., unless error, omission
or irregularity has also caused the failure of justice and in determining the fact whether there is a
failure of justice the Court shall have regard to the fact whether the objection could and should have
been raised at an earlier stage in the proceedings. But even applying the very same principles it is
seen that in fact the appellant was in fact prejudiced because of the non- production of the records
from the police. Delay in filing the complaint because of police inaction has to be explained by
calling for the records from the police was explained by this Court in Khedu Mohton and others v.
State of Bihar (AIR 1971 SC 66). Where the Court took exception to the fact that the complaint
lodged with the police had not been summoned or proved, no satisfactory proof of any such
complaint had been adduced before the Court, and none of the documents as would have become
available under Sec. 173, Cr. P.C., had also been brought on record.