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Bhagwandass and ors. Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Misc. Application Nos. 181 and 182/83
Judge
Reported in1983WLN(UC)324
AppellantBhagwandass and ors.
RespondentThe State of Rajasthan
DispositionApplication allowed
Cases ReferredC. and Prabhu v. The State of Rajasthan
Excerpt:
.....investigation--held, accused cannot be prosecuted.;since the challans were submitted against the accused petitioners after the expiry of six months of their arrest without any order to continue the investigation beyond the period of six months, the accused petitioners cannot be prosecuted.;petition allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not..........cases are identical.3. the prosecution case is that illicit liquor was found in possession of the accused petitioners and cases were consequently registered against them under section 4(2) of the act. accused bhawan das was arrested on 6-10- 1979 while the remaining two were arrested on 2-2-80. a challan was submitted against accused bhawan das on 17-9-80 and against the remaining two on 29 8-80 i.e. after the expiry of six months in both the cases. the accused petitioners took objection that since the challans were submitted after the expiry of six months from their arrest and no order to continue the investigation was passed by the magistrate, their prosecution was unwarranted and bad in law under section 167(5), cr. pc. the objections were repelled by the learned additional sessions.....
Judgment:

S.S. Vyas, J.

1. By these applications Under Section 482, Cr. P.C., the three accused persons have invoked the inherent jurisdiction of this court to quash the proceedings in the criminal cases pending against them in the Court of the learned Judicial Magistrate (1), Jodhpur for offence Under Section 4(2) of the Rajasthan Prohibition Act, 1969 (here in after to be referred as the Act).

2. Since the revision applications of the accused persons were disposed of by a common judgment by the learned Additional Sessions Judge (2), Jodhpur, the applications were heard together and are disposed of by a common judgment. It may also to mentioned that the points involved in these cases are identical.

3. The prosecution case is that illicit liquor was found in possession of the accused petitioners and cases were consequently registered against them Under Section 4(2) of the Act. Accused Bhawan Das was arrested on 6-10- 1979 while the remaining two were arrested on 2-2-80. A challan was submitted against accused Bhawan Das on 17-9-80 and against the remaining two on 29 8-80 i.e. after the expiry of six months in both the cases. The accused petitioners took objection that since the challans were submitted after the expiry of six months from their arrest and no order to continue the investigation was passed by the Magistrate, their prosecution was unwarranted and bad in law Under Section 167(5), Cr. PC. The objections were repelled by the learned Additional Sessions Judge (2), Jodhpur heard the revision and di missed it. Hence these applications Under Section 482, Cr. P.C.

4. Learned Counsel appearing for the accused petitioners contended vehemently that in view of the mandatory provisions of Section 167(5), Cr. P.C. the investigation in a summons case came to an end on the expiry of six months from their arrest. No order to continue the investigation after the expiry of six months was passed by the Magistrate. As such the investigation, having come to an end, no challan could be submitted against them and consequently they could not be tried. Reliance in support of the contention was placed on Section 67(5), Cr. P C. and Prabhu v. The State of Rajasthan 1983 RLW 272. In reply, the prosecution made every attempt to justify the impugned orders and the actions of the Courts below.

5. I have taken the respective contentions into consideration.

6. Admittedly, the challans were submitted after the expiry of six months of the arrest of the accused petitioners. No orders Under Section 167(5), Cr. P.C. were passed by the Magistrate to continue the investigation after the expiry of the aforesaid period of six months. The provisions of Sub-section ( ) came for judicial review in Prabhu's case. All the arguments, which have been raised before me, were advanced in the aforesaid case. The arguments were dealt with in paras No. 9 and 10 of the judgment and are reproduced below:

I have carefully considered the rival contentions mentioned above. It has not been disputed before me that the charge sheet was filed against the petitioner in the court of Additional Munsiff and Judicial Magistrate, Tonk after the expiry of the period of six months from the date of arrest of the petitioner i.e. 17-2-1981. Further, there is no dispute about the fact that the learned Magistrate did not pass an order that he was satisfied for special reasons and in the interest of justice that the continuation of the investigation beyond the period of six months was necessary. It is no doubt true that the officer making the investigation in this case applied many a times for grant of time to file the challan against the petitioner, but no orders for continuation of the investigation beyond the period of six months, were passed either by the Chief Judicial Magistrate or by the learned Judicial Magistrate on such applications. The contention of the learned Public Prosecutor that the petitioner ought to have raised this objection immediately on the expiry of the period of six months is not tenable, because it was the duty of the Magistrate to stop further investigation beyond the period of six months, unless he was satisfied that for special reasons and in the interest of justice, the continuation of the investigation beyond the period of six months, was necessary. Under the Jaw it was not obligatory on the petitioner to raise any such objection immediately on the expiry of the period of six months. The provisions contained in Sub-section (5) of Section 167 Cr. P.C. are of mandatory nature and the delay or failure on the part of the petitioner to raise such objection, an my view, could not cure the illegality that had crept in the proceedings on account of failure of the Magistrate passing an order for stopping further investigation into the offence beyond the period of six months.

10. Like wise, the other contention of the learned Public Prosecutor that the subsequent proceedings taken in this case by the learned Judicial Magistrate, are not without jurisdiction on account of the investigation carried on after expiry of the period of six months, is also not acceptable being without substance, because in view of the clear provisions contained in Section 167(5) Cr. P.C. the continuation of the investigation in this case after the expiry of the period of six months, was without jurisdiction and the learned Magistrate could not legally take cognizance on the police report based upon such investigation.

7. In view of the law laid-down in the aforesaid authority, criminal proceedings cannot be launched against the accused petitioners after the expiry of the period of six months of their arrest. The case against Prabhu was also Under Section 4(2) of the Act.

8. Since the challans were submitted against the accused petitioners after the expiry of six months of their arrest without any order to continue the investigation beyond the period of six months, the accused petitioners cannot be prosecuted.

9. In the result the applications are allowed. The criminal proceedings pending against the accused-petitioners in the Court of the learned Judicial Magistrate (1), Jodhpur in criminal cases No. 1982-80 and 2272/80 are quashed.


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