JUDGMENT : C.B. Patnaik, J. - The Petitioners were convicted under Sections 427 and, 352, I.P.C. and were sentenced to pay a fine of Rs. 500/- (five hundred) each in default to undergo simple imprisonment for two months for their conviction u/s 427, I.P.C. and were sentenced to pay a fine of Rs. 100/- (one hundred) each, in default to undergo simple imprisonment for one month each for their conviction u/s 352, I.P.C. by the learned Chief Judicial Magistrate, Cuttack. On appeal the learned Additional Sessions Judge. Cuttack has set aside the conviction arid sentence passed u/s 352, I.P.C., but has maintained their conviction u/s 427, I. P.C. and so far as the sentence is concerned, he has directed to pay a fine of Rs. 200/- (two hundred) each, in default to undergo simple imprisonment for one month each. 2. On 15-9-1979, a complaint was filed by p. w 4 alleging therein that on 12-8-1979, the two Petitioners trespassed into the Bari of the complainant, uprooted two cocoanut trees and when the complainant protested they gave his fist blows and also broke the compound wan by means of a spade. In the complaint petition it had been alleged that the complainant had lodged F.I.R. but as the police did not take any action they were obliged to file the complaint. On receipt of the aforesaid report, the learned Sub-Divisional Judicial Magistrate, Cuttack directed that a report be caned for from the officer-in- charge. Govindpur Police Station to indicate as to whether investigation is in progress and if so to give the Police Station case number. Along with the order a copy of the complaint petition was forwarded to the officer-in-charge, Govindpur Police Station. The police on receipt of the said complaint petition treated the same as an F. I. R. and took up investigation on the case. Ultimately they filed charge-sheet on 27-2-1980 after instituting a C. R. Case and that is how the Chief Judicial Magistrate, Cuttack came in session of the case. 3. The prosecution examined six witnesses while the defence examined none and the plea of the defence is that the wall in question is a joint wall and a false case has been foisted against the accused persons. Of the six prosecution witnesses, P.Ws. 3. The prosecution examined six witnesses while the defence examined none and the plea of the defence is that the wall in question is a joint wall and a false case has been foisted against the accused persons. Of the six prosecution witnesses, P.Ws. 1 to 3 are supposed to be the eye witnesses to the occurrence, p.w. 4 is the informant and p.w. 5 is the Investigating Officer. It is on the evidence of P.Ws. 1 to 3 the Courts below have sustained the conviction of the Petitioners u/s 427, I. P.C. 4. Mr. Misra, the learned Counsel for the Petitioners contends that both the offences being non-cognizable, the police had no jurisdiction to Investigate into the same without the order of a Magistrate, as contemplated under Sub-section (2) of Section 155, Criminal Procedure Code, and therefore, the ultimate charge-sheet submitted by the police in such circumstances must be held to be illegal and void and consequently the conviction of the Petitioners must be held to be illegal. I do not agree with the aforesaid contention of the learned Counsel for the Petitioner. It is no doubt true, that Sub-section (2) of Section 155, Criminal Procedure Code prohibits a police officer from investigating into a non-cognizable case without the order of a Magistrate having power to try such case. But in the present case, it is actually the Magistrate who on receiving the complaint called for a report from the Police Officer whereupon the police investigated into the case treating the same as F.I.R. The order of the Magistrate in the present case no doubt is not an order directing the police to investigate into the case as required u/s 2 (2) of Section 155, Criminal Procedure Code, but in my view, notwithstanding the prohibition contained in, Section 155 (2), Criminal Procedure Code, if the Magistrate takes cognisance of an offence on the police report, which report was made in violation of the express prohibition contained in Section 155 (2) of the Code in case of a non-cognizable offence, the illegality of the investigation would not vitiate the trial, unless it is manifest that there has been gross-miscarriage of justice. In the facts and circumstances of the present case, I do not find the accused to have been prejudiced in any manner nor can it be said that there has been gross mis-carriage of justice. In the facts and circumstances of the present case, I do not find the accused to have been prejudiced in any manner nor can it be said that there has been gross mis-carriage of justice. Accordingly, I do not find any force in the contention of Mr. Misra, the learned Counsel for the Petitioners to hold that the trial as well as the conviction of the Petitioners is vitiated on the ground that investigation made by the police was in contravention of Sub-section (2) of Section 155 of the Code of Criminal Procedure. The said contention of Mr. Misra must be rejected. 5. On the merits of the case, however, Mr. Misra contends that the Courts below lost sight of three important features which according to him would vitiate the conclusion arrived at, firstly there has been gross delay in filing the complaint, the occurrence being on 12-8-1979 and the complaint having been filed on 15-9-1979 more than a month after the date of occurrence. Courts have always viewed a delayed information with grave suspicion. The delay quite often results in embellishment which is a creature of afterthought. But the delay by itself cannot be the sole reason for rejecting the evidence which is otherwise fully entitled to credit. It is only a circumstance which puts the Courts on its guard to find out whether there is any satisfactory explanation for the delay in question. Where there is no satisfactory explanation for such delay, it is undoubtedly fatal to the prosecution, see Thulia Kali Vs. The State of Tamil Nadu. It has been held by the Supreme Court that on account of delay, the report not only gets bereft of the advantage of spontaneity, but danger creeps in of the introduction of coloured version exaggerated account or concocted story but whether the delay is such as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors. (See Ram Jag and Others Vs. The State of U.P., ). (See Ram Jag and Others Vs. The State of U.P., ). In the present case, there has been absolutely no explanation as to why the complaint petition itself was filed more than a month after the date of occurrence though it was averred in the complaint petition that the complainant had earlier given information to the police, but no such report at all came and in fact the complaint petition being sent by the Magistrate to the Officer-in-charge was treated as F. I. R.. In my view, therefore, there being no explanation for the inordinate delay in question, it must be held that it is fatal to the prosecution. The learned Public Prosecutor in reply, however, urged that this question had not been argued in the Courts below. But this is a pure question of law and is based on admitted facts. Accordingly I would sustain the first contention of Mr. Misra, the learned Counsel for the Petitioners. 6. Mr. Misra then urges that p.w. 3 who has been examined as an eye witness to the occurrence was not mentioned either in the complaint petition or in the charge-sheet. P. ws. 1 and 2 are persons of the neighbouring villages and their evidence does not satisfactorily establish as to how they could be present at the time of occurrence. The Courts below have failed to scrutinise their evidence in appropriate manner and at any rate, the learned Sessions Judge has merely paraphrased the findings of the learned Magistrate. I find sufficient force in this contention of the learned Counsel for the Petitioners. It is not known how an important eye witness like p.w. 3 could be left out both ill the complaint petition as well as in the witness list mentioned in the charge-sheet. Then again one Kalandi Padhan who according to the complainant-informant was an independent person and saw the occurrence has not been examined by the prosecution. Non-examination of the independent witness in the facts and circumstances of the present case goes a long way to throw doubt on the veracity of the prosecution case. 7. Then again one Kalandi Padhan who according to the complainant-informant was an independent person and saw the occurrence has not been examined by the prosecution. Non-examination of the independent witness in the facts and circumstances of the present case goes a long way to throw doubt on the veracity of the prosecution case. 7. It is the claim of the Petitioners that the boundary wall which is alleged to have been broken by the Petitioners belongs to them jointly with the complainant and in that view of the matter breaking the boundary wall would not constitute the offence of mischief within the ambit of Section 425, I.P.C. . The learned Additional Sessions Judge applying the explanation 2 of Section 425, I.P.C. has come to the conclusion that the offence is established. In my view, explanation 2 of Section 425, I.P.C. has no application at all in the facts and circumstances of the present case. 8. In the ultimate result, therefore it must be held that the prosecution has failed to establish the charge u/s 427, I.P.C. against the Petitioners and accordingly the conviction of the Petitioners cannot be sustained. I would, therefore, set aside the conviction and sentence of the Petitioners u/s 427, I.P.C. acquit them of the charges on that score. This criminal revision is accordingly allowed. Final Result : Allowed