Skip to content


Court on Its Own Motion Vs. State and Jai Bhagwan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 126 of 1984
Judge
Reported inAIR1985Delhi483; 28(1985)DLT77; 1985(9)DRJ4; 1985RLR62
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 167(5)
AppellantCourt on Its Own Motion
RespondentState and Jai Bhagwan
Advocates: R.P. Lao and; S.K. Bhattacharya, Advs
Cases Referred(See Hari Shankar Lal v. Shambhu Nath and
Excerpt:
a. criminal procedure code - section 167(5)--the accused was arrested on 9-12-1981 and the charge sheet against him was initiated in the court on 7-12 1982. the prosecution had not sought any permission to continue investigation after the expiry of six months. whether the cognizance taken by the trial court on the charge sheet initiated after the expiry of six months was valid ? held--yes. b. criminal procedure code - section 167(5)--when the breach of section 167(5) is brought to the notice of the court, though it may not result in automatic nullification of the trial, the trial court will have to take note of it and pass appropriate orders. c. criminal procedure code - section 167(5)--does the magistrate have power to give permission to continue investigation, if an application.....rajinder sachar, j.(1) this and connected matters raise common points of law and will be decided by the same order. having read in the press about the acquittal of respondent by mr. p.r. thakur, chief metropolitan magistrate by his order of 13th july, 1984 in f.i.r. no. 580/81, state v. jai bhagwan under sections 279/338/304-a, indian penal code on the ground that the investigation by police had continued beyond a period of six months without obtaining permission from the magistrate and thus there was breach of section 167(5) criminal procedure code . one of us (sachar j.) in exercise of the high court power under section 397 read with section 482 of the criminal procedure code . issued notice to the state as well as the accused jai bhagwan. in the connected matters also the magistrates.....
Judgment:

Rajinder Sachar, J.

(1) This and connected matters raise common points of law and will be decided by the same order. Having read in the press about the acquittal of respondent by Mr. P.R. Thakur, Chief Metropolitan Magistrate by his order of 13th July, 1984 in F.I.R. No. 580/81, State v. Jai Bhagwan under sections 279/338/304-A, Indian Penal Code on the ground that the investigation by police had continued beyond a period of six months without obtaining permission from the Magistrate and thus there was breach of Section 167(5) Criminal Procedure Code . one of us (Sachar J.) in exercise of the High Court power under Section 397 read with Section 482 of the Criminal Procedure Code . issued notice to the State as well as the accused Jai Bhagwan. In the connected matters also the Magistrates having acquitted the accused on the same ground Delhi Administration has filed appeals again st the order of release and acquittal and that is why all these matters have been heard together.

(2) In the present case the accused was arrested on 9th December, 1981, charge sheet against him was instituted in the Court on 7th December, 1982. The accused was charge sheeted for an offence for driving the truck rashly/negligently and causing death of Sh. Subash Chander, Ram Kumar and Chandan Devi and grevious hurt to Sh. Ishwar d hurt to Sh. Sohan Lal. The accused moved an application on the ground that as investigation had continued beyond a period of six months they were entitled to acquittal in view of the alleged breach having been committed to Section 167(5) of the Code. The learned Chief Metropolitan Magistrate relying on a judgment of this Court in the case of Raj Singh v. State, 1984(6) Del. R.J 284 accepted this plea and ordered the acquittal. It is the correctness of this view which calls for examination in the present proceedings.

(3) Now Section 167(5) of the Code of Criminal Procedure 1973 (Code) to be found in Chapter 12 of the Code dealing with information to the police and their powers to investigate provides that if in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuation of the investigation on beyond the period of six months is necessary. Section 167(6) of the Code further provides that where an order stopping further investigation has been made under Sub Section (5) the Sessions Judge may if satisfied that further investigation into the offence ought to be made, vacate the order made under Sub Section (5) and direct further investigation to be made into the offence. Section 173 requires that as soon as the investigation is completed the officer in charge of the Police Station shall forward to the Magistrate empowered to take cognizance of the offence on a police report, a report in a prescribed form. Chapter 14 is headed 'Conditions requisite for initiation of proceedings'. Section 190 in Chapter Xiv provides that a Magistrate may take cognizance of any offence (a) upon receiving a complaint effects which constitute such offence (b) upon a police report of such facts and (c) upon information received from any person other than police officer or upon his own information.

(4) Summons case is defined in Section 2(f) to mean a case relating to an offence and not being a warrant case. Warrant case is defined by section 2(x) to mean a case relating to an offence punishable with imprisonment for a term exceeding two years. The offences under Sections 279, 338, 304A Ipc are all punishable with imprisonment with a term not exceeding two years. All these offences are thus triable as summons case

(5) Admittedly in the present case the report under Section 173 of the Code was filed beyond a period of six months from the date of the arrest of the accused. It is also common case that no application or attempt was made to satisfy the Magistrate that the continuation of the investigation beyond the period of six months was necessary and as such the question of giving permission by the Magistrate did not arise.

(6) The counsel for the accused argues that as investigation had continued beyond a period of six months from the date of arrest of the accused it would mean that the report under Section 173 Criminal Procedure Code . had been filed on the basis of illegal investigation, and any trial or further proceeding in consequence of it would be null and void, and the only alternative left with the court was to direct the release or acquittal of the accused. We do not agree. In our view the understanding of law on the basis of which respondents have been ordered to be released by the Magistrate is based on misapprehension of the scope of Section 167(5) compounded by the fact that neither the prosecution nor the defense paid any attention to the provisions of Section 167(5) of the Code, till the defense sought the acquittal on the basis of a judgment of a learned Single Judge of this Court in the case of Raj Singh v. State (supra) 1984 (6) Del. R. J 284 It would appear that prior to the judgment given by this Court neither the prosecution nor the defense seem to have given hardly any attention to the provisions of Section 167(5). The result was that even when investigation had continued beyond a period of six months and report filed there under no objection to the trial continuing was being taken by the defense. The prosecution as is more likely to be apprehended may not have even been aware of the mandate of the Legislature, in any case it was certainly remiss in its duty of satisfying the Magistrate and obtaining an order for continuation of the investigation beyond the period of six months.

(7) Now that this matter has come out in the open we would expect the provisions of Section 167(5) to be complied with meticulously. We would expect the Magistrate to pass appropriate orders if investigation is Still continuing beyond six months from the date of the arrest of the accused we would also expect the prosecution to move the Magistrate to seek appropriate directions if if considers continuation of investigation beyond a period of six months to be necessary in the interest of justice. But.that is in future The question, however, is where as in the present case when no such permission was sought and no such permission was obviously given would it automatically lead to the result of the release of the accused and the stoppage of the trial notwithstanding that cognizance has already, been taken by the Magistrate and in some cases even large number of witnesses had also been examined and in one case even the matter was fixed for arguments. In our opinion the view taken by the trial court in all these cases is fallacious in law for more reasons than one.

(8) Chapter 11 talks of the power to investigate. It is true that investigation is a normal preliminary to an accused being put to trial for cognizable offences like Section 304A but it cannot be maintained that valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance because Section 190.Cr. P.C .falls under Chapter Xiv with, heading 'Conditions requisite for enunciation of proceedings'. It is also well settled 'While no doubt, in one sence, Clauses (a), (b) and (c) of Section 190(1) are conditions requests for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is, thereforee, a nullity' (H.N. Rishbud and another v. State of Delhi, : 1955CriLJ526 . At the most that can be urged is that the investigation has continued beyond a period of six months without obtaining permission from. the Magistrate the cognizance has been taken on the basis of invalid or illegal investigation. But in law it does not result in the trial or even a conviction. becoming a nullity unless the defense could establish that because of such invalid report a failure of justice has infact been occasioned thereby in terms of Section 464 Criminal Procedure Code . Here it. is nobody's case nor was indeed any effort made to show by the defense that because of the investigation having continued beyond a period of six mouths any failure of justice, has been occasioned thereby. Indeed no one even touched on this aspect, the Court just assumed as a self evident proposition that because, investigation continued beyond a period of six months, the cognizance by the Magistrate and all the proceedings subsequently before him had become null and void. This patently is not the law. Section 464 Criminal Procedure Code . (equivalent, to old section 537 of the Criminal Procedure Code) specifically mandates otherwise. Reference in that connection may be made to H. N. Rishbud and another v. State of Delhi (supra). In that case the facts were that Section 5(4) of the Prevention of Corruption Act required that no police officer below the rank of a D S P. shall investigate any offence punishable under Sections 161, 165 or 165(a) of the Indian Penal Code without the order of the Magistrate of the First Class. The appellant was prosecuted under Section 5(4) of the Prevention of Corruption Act. The first information report were made in April and June, 1949 but permission to investigate by a police officer of a rank lower than D.S.P. was given in March, 1951, charge sheet was filed in August-November, 1951 but admittedly investigation was entirely or mostly completed in between the dates when the first information was lodged and the permission to investigate by an officer of lower rank was accorded. It was on this ground that objection was taken that proceedings by way of trial initiated on such charge sheets are illegal and. should be quashed. The Supreme Court accepted that it was considered necessary to provide a safeguard from undue harassment to public officers by requiring that the investigation is to be conducted normally by a police officer of a designated high rank and, thereforee, having regard to the preemptory language of sub section (4) of Section 5 of the Act, it would reasonably be clear that the said provision must be taken to be mandatory. Having found this and also having found that the investigation conducted in breach of Section 5(4) bore the stamp of illegality, the Supreme Court then examined, the question as to. what extent the trial which followed such investigation is vitiated. The Supreme Court then referred to old section 537 Criminal Procedure Code and observed:

'WEare, thereforee, clearly also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.'

(9) Of course, it is not as if the provision of Section 167(5) ought to be allowed to be ignored or are of no consequence. All that we say is that when the breach of section 167(5) is brought to the notice of the court though : it may not result in automatic nullification of the trial, the trial court will. have to take note of it and pass appropriate orders because as the Supreme Court observed in H.N. Rishbud and another v. State of Delhi (supra) :

'It does not follow, however, that the invalidity of the investigation is) to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for.'

(10) The same view was repeated in Dr. M.C. Sulkunte v. The State of Mysore, : 1971CriLJ519 and The State of Andhra Pradesh v. P.V. Narayana, . In that context there could be no automatic acquittal of the accused. As it is in the present case we curiously find that though this delay in investigation was brought to the notice of the Magistrate no attempt was made by the prosecution to seek permission from the Court for continuation of the investigation beyond a period of six months, as contemplated. Apparently this peculiar attitude was taken by the prosecution because of the decision of a learned single Judge of this Court in H.N. Rishbud and another v. State of Delhi (supra). In that case the Magistrate had refused to quash the charge sheet only on the ground that investigation has continued beyond a period of six months. The learned Judge, however, held that if the investigation is not complete within six months and the Magistrate has not given his permission and the prosecution has also not approached the Sessions Court then the only option for the police is to submit a report under Section 169 or 173 Criminal Procedure Code . on the basis of investigation made within a period of six months. In that case the Magistrate can either drop the proceedings if no defense is made out or take cognizance if he is satisfied that there is a case that should go for trial. But if the police does not seek such permission to continue the investigation the Magistrate cannot take cognizance on a report submitted by such an investigation because this is no irregularity but an illegality which is not curable under section 460 or 465 of the Criminal Procedure Code . With respect we are unable to agree. The learned Judge makes a distinction between an irregularity and invalid investigation and the former only being curable under the Criminal Procedure Code . This goes contrary to the Supreme Court decision in H.N Rishbud & Anr. v. State of Delhi (supra) which has held that even an invalid investigation against the mandatory provisions would not vitiate the continuance of trial once cognizance has been taken. We may in pausing observe that even this authority recognises that trial can proceed on the basis of an investigation which had taken place within a period of six months from the date of arrest. Thus even on this limited point, of course, we shall indicate in the judgment that there is no bar in seeking the permission from the Magistrate to continue investigation even if a period of six months has run out. The decision of the Magistrate in quashing the proceedings without first trying to find out as to whether the material collected by the investigating agency with a period of six months was sufficient to go for trial.

(11) An argument was also raised that strictly speaking Section 167(5) Criminal Procedure Code . may not be applicable because that section talks of investigation being concluded within a period of six months but does not limit the time as to when the report is to be filed with the Magistrate and the mere fact that a report is filed beyond six months from the date of arrest of the accused does not mean necessarily that the investigation has continued beyond a period of six months. The argument was that Section 173 itself provides that as soon as investigation is completed the officer in charge of the police station shall forward to the Magistrate empowered to take cognizance of offence a report in the form prescribed in the section and this itself would show that the calculation of the period of six months is to be done not from the date the report has been received by the Magistrate but earlier when the opinion has been formed by the Magistrate that there are reasonable grounds and sufficient evidence to take cognizance of an offence by the Magistrate. It is argued by Mr. Lao, that the period of six months must be counted from the date of the arrest of the accused to the date of formation of opinion by the investigating officer. We do not think necessary in these cases to decide this aspect and we shall proceed on the basis that the period of investigation continues right up to the date when the report is filed before the Magistrate. But what is important to emphasise is that the mere fact of investigation having continued beyond a period of six months without the permission of the Magistrate does not automatically nullify the continuance of the trial. The only result in that case is that the Magistrate will only look into the material which had been collected within a period of six months and will ignore the other material and then decide whether to take cognizance or not. So the question of prejudice being occasioned would not arise because cognizance would be on the basis of investigation which had been conducted legally and within the time permitted. The trial court in ignoring this aspect has patently committed an illegality.

(12) Another important aspect which needs to be answered is does the Magistrate have power to give permission to continue investigation, if an application is made by the prosecution beyond a period of six months. In our opinion there is no legal bar to such a course. Period of six months mentioned in Section 167(5) Cr. P C. is not a period of limitation. Of course, investigation beyond 6 months without permission from Magistrate is invalid, but that does not mean once six months have run out the Magistrate becomes powerless to exercise the power given by the statute. We may refer to some authorities cited by the counsel for the respondent accused. In Ram Kumar Keshori v. The State, police filed application to continue investigation after six months have run out the same was allowed by the Magistrate. On completion of the investigation cognizance was taken by the Magistrate and thereafter an objection was taken that as the investigating officer had filed his application beyond a period of six months from the date the accused was arrested the Magistrate had no jurisdiction to entertain it in view of Section 167(5) of the Code. The Calcutta High Court held that in terms of Section 167(5) the moment six months have elapsed the Magistrate cannot entertain any prayer to extend the time of investigation as the words 'continuation of investigation' in Section 167(5) pre-supposes an investigation which is in progress and once the period of six months expires it will be a case of 'further investigation' as mentioned in Section 167(6) Cr. P.C. and direction to continue investigation after six months is without jurisdiction. We may, however, note that these observations are really obiter because as noted in para 3 the public prosecutor conceded that since no permission was sought by the investigating officer prior to the expiry of six months period he was unable to support the order of the learned Magistrate, thus assuming as if that was such a self evident position in law, while in our view the position is otherwise.

(13) Same view has been taken in Mlkiyat Singh& Ors. v. The State of Rajasthan 1981 Cr.L.J. 1001 (Rajasthan). With respect we cannot agree with the above said view of law.

(14) We do not read Section 167(5) of Code to mean that no permission could be sought from the Magistrate once a period of six months has expired. It is evident, that before the Magistrate will pass an order stopping further investigation he must give an opportunity to the police to satisfy him that there are any special reasons for continuing the investigation beyond a period of six months. This matter will thus come up for consideration only after six months have run out and if the reasoning of the Calcutta and Rajasthan High Courts was to be followed it would lead to a peculiar situation that he could not pass an order turn continuing the investigation, even if he was of the view that if was in the interest of justice to do so. This would make section 167(5) Criminal Procedure Code . cotiosean unacceptable situation. To take an illustration, an application is filed a few days before the six months have expired, as indeed it cannot but he would only a few days before, as the investigating agency may not itself know sufficiently in advance whether it will be able to complete the investigation within six months or not. In such a case surely there seems to be no logic in saying that though an application is moved within six months, but Magistrate has no authority to pass an order because 6 months have expired by then as these authorities seem to lay down. Moreover, sub section (6) of Section 167 shows itself the intention of the Legislature when it empowers the Sessions Judge in revision to permit further investigation vacating the order passed by the Magistrate in refusing continuation of investigation passed under Sub-section (5). That order of Sessions Judge necessarily will be passed after six months period has run out. This obviously means that the Legislature never contemplated that simply because a period of six months in Section 167(5) has run out the power of the Magistrate to permit investigation to continue beyond the period of six months has become inoperative. The scheme of Section 167(5) and (6) has to be read harmoniously namely, (a) investigation will be completed within a period of six months; (b) if, however, there are special reasons and the interest of justice requires the Magistrate may permit the continuation of investigation beyond a period of six months and (c) if, however, the Magistrate does not so permit the Session Judge may do so. Though normally one would expect the police to move the Magistrate within a period of six months if it wishes to continue the investigation beyond that period, but in law it does not follow that if application is moved beyond the period of six months, the Magistrate has no jurisdiction to deal with such a request of the prosecution, in this connection reference may be made to Hussianara Khatoon and others v. Home Secretary, State of Bihar, Paina, : 1979CriLJ1036 . In that case the Supreme Court found that there were large number of undertrials who had been charges with offences which were triable as summons cases and they were not charged for a number of years for exceeding six months. The Supreme Court referred to the provisions of Section 167(5) of the Code and directed the Government of Bihar to find out as to whether investigation had been going on for more than six months without satisfying the Magistrate that for special reasons and in the interest of justice the continuation of investigation beyond a period of six months in necessary. The Government of Bihar was also directed to release the undertrials prisoners unless the necessary orders of the Magistrate are obtained within a period of on' month from the date of the judgment of the Supreme Court. These observations will show that even though six months had expired and no permission had been obtained from the Magistrate during that period yet the Supreme Count did not hold that the charge sheets had to be automatically quashed and accused acquitted. Rather it permitted the Government of Bihar to obtain necessary orders within one month from the date of the judgment. This clearly shows that it is open to the prosecution to move the Magistrate even after six months have run out for permission to continue investigation beyond that period. It is only on this assumption that the observations of the Supreme Court can be understood. Reference may also be made to the same case of the Supreme Court at page 1377 at 1381 where the Supreme Court explained the reasons for giving the earlier direction, by observing that in such a case Magistrate is bound to make an order stopping further investigation and in that event, only two courses would be open: either the police must immediately proceed to file a charge-sheet, if the investigation conducted till then warrants such a course, or if no case for proceeding against the undertrial prisoner is disclosed by the investigation, the undertrial prisoner must be released forthwith from detention.

(15) This would show that the Supreme Court accepts that the Magistrate has jurisdiction under Section 167(5) Criminal Procedure Code . to permit the investigation to continue beyond a period of six months even if an application for this purpose is moved by the prosecution beyond this period. It also shows that even if permission is not granted it is open to the prosecution to file a charge-sheet if the investigation conducted till then warrants such a course. This authoritative pronouncement clearly shows that the course adopted by the Magistrate in the present case in straightaway acquitting the respondents because the investigation had continued beyond a period of six months is completely unsupportable in law and precedent. The law has always accepted that where there is power to extend time as under Section 28 of the Arbitration Act where the arbitrator is to make his award within a period of four months extension for the time can be given even after the period of four months and even though award has been factually made (See Hari Shankar Lal v. Shambhu Nath and others, : [1962]2SCR720 ). Similarly under Section 149 C.P.C. where the Court allows a party to pay whole or part of the court fee, the result of such payment is to have the force and effect as if such fee has been said in the first instance. The argument which prevailed with the lower court that once this period of six months has run out the Magistrate becomes totally powerless to extend the time is without any substance. These observations of the Court, however, clearly negative the argument of the counsel for the petitioner that the moment six months have expired no course is open to the Magistrate or to the police but to allow the accused to be released notwithstanding that the material collected already within a period of six months is sufficient to go for trial and notwithstanding that in law even an illegal investigation does not vitiate the trial unless it has occasioned prejudice. It must be recognised that two competing public interests are involved (1) the liberty of the citizen and the mandate of law that normally investigation should be completed within a period of six months. But equally public interest demands that violation of penal provision endangering the lives of ordinary citizens should not escape the arm of law on supposedly hyper-technical and also unsubstantial grounds. So, normally unless it is in the interest of justice and sufficient reasons are made out by the prosecution extension by the Magistrate will not be available but there is also another competing public interest to see that because of the negligence or apathy or collusion of the investigating agency the administration of criminal jurisprudence is not reduced to total ineffectiveness which will breed dis-satisfaction amongst the public. In the present case even the trial court has accepted the serious consequences of the view that he was taking. Here is a person who is said to have driven rashly and negligently resulting in the death of three persons and causing hurt to two persons and he is being ordered to be acquitted without trial simply because the prosecution did not put the chargesheet within six months. The public interest also mandates against this extreme result which would permit the proceedings to be thrown out at the thresh-hold, without the decision on merits. We, of course, say nothing on the merits of the matter because that has to be examined by the trial court.

(16) In the result we would allow the revision petition and quash the order of the Magistrate. The result will be that the order of the Magistrate releasing the accused and acquitting them will be set aside and the matters will now be remanded to the trial court which will proceed with the trial of the case. We are so directing because we are satisfied that there is no question of any alleged infirmity or illegality having occasioned prejudice even if the investigation has continued beyond a period of six months. We are saying this because we had asked Mr. Lao, the counsel for the state to indicate to us as to why in these cases on which normally no complicated investigation were called for it took so long to file a report with the Magistrate. Mr. Lao has filed a chart with his report which we are making as Ex. P-1 consisting of two pages and a statement marked Ex. P-2 indicating the respective position. From the chart it would appear that the investigation seems to have been completed in all cases within a period of six months from the date of the arrest of the accused. No doubt the date of filing the challan in the court is beyond a period of six months. The reason mentioned in the report of Mr. Lao appears to suggest that the normal practice is that after the investigation has been done the file is sent to the prosecution agency for final opinion. The delay appears to have arisen because of certain queries raised by the prosecution agency as to whether particular item of property had been seized or not and as to whether documents have been translated legibly or whether some photos have been taken from an angle and in one case on a complaint to look into the matter little more carefully. According to Mr. Lao enquiries had to the answered and that is why the delay in filing the report. But he makes it clear that in no case any occasion had arisen to reinvestigate the matter and the material which was the basis for the charge-sheet had all been collected within a period of six months. We are thus satisfied from the statement given by Mr. Lao that even if it was a question of giving permission for continuation of investigation beyond a period of six months the special circumstances and reasons are such in which permission would have certainly been given by the Magistrate. Instead of leaving it to the Magistrate to do so, we hereby give the requisite permission as required by Section 167(5) of the Code.

(17) We, thereforee, hold that there is no illegality in the investigation having continued beyond six months. Thus this contention cannot be availed against the continuing of the trial or for seeking to challenge the finding or sentence, if any, of the court on this ground.

(18) As a result the revision is allowed and the matter remitted to Trial Court who will now proceed with the trial in accordance with law and merits and in the light of observations made herein.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //