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Prabhu S/O Ghasi Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Misc. Petition No. 295 of 1982
Judge
Reported in1983WLN158
AppellantPrabhu S/O Ghasi
RespondentState of Rajasthan
Cases ReferredJai Shanker Jha v. State
Excerpt:
.....in this case after the expiry of the period of six months, was without jurisdiction and the learned magistrate could not legally take cognizance the police reported upon such investigation.;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 attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is..........was not concluded within the period of six months from the date of his arrest an so the learned judicial magistrate may make an order stopping further investigation into the offence under sub-section (5) of section 167 cr.p.c. the learned judicial magistrate rejected the application of the petitioner on the ground that it was not filed in the court before filing of the challan by the police.3. aggrieved by this order, the petitioner has moved this court for redress of his grievance.4. i have carefully perused the record and heard mr. k.n. tikku, learned counsel for the petitioner and mr. g.c. chatterji, learned public prosecutor for the state.5. it has been contended before me by mr. k.n. tikku, learned counsel for the petitioner in a case triable by a magistrate as summons.....
Judgment:

K.D. Sharma, J.

1. The petitioner, Praphu, by name has invoked inherent jurisdiction of this court by way of an application Under Section 482 Cr.P.C. for quashing the order of the learned Munsiff and Judicial Magistrate, Tonk dated 21.8.1982, whereby, the application of the petitioner Under Section 167 Cr.P.C. was dismissed and the criminal proceedings against the petitioner subsequent to the expiry of the period of six months, were ordered continue.

2. The relevant facts giving rise to this application Under Section 482 Cr.P.C., may be briefly, stated as follows : On 17.2.1981, Shri Ramanand Sukla, C.I. (Excise), Tonk searched the residential house of the petitioner & recovered half bottle of illicit liquor from his room. The petitioner was arrested the very day & was bailed out later on, on the next day by the Chief Judicial Magistrate, Tonk. The Police however, could not complete the investigation within the period of six months from the date on which the petitioner was arrested, for the reasons best known to them. The Police, however, applied in writing to the learned Additional Munsiff and Judicial Magistrate to whose court the case was transferred on 10.8.1981, for granting time on different dates for completing investigation, but no orders where passed on such application by the Judicial Magistrate. Eventually, the police submitted a charge sheet against the petitioner Under Section 4(2) of the Rajasthan Prohibition Act (herein-after referred to as the Act), in the court of learned Additional Munsiff and Judicial Magistrate, Tonk on 11.1.192. The case was adjourned from time to time up to 19.5.1982 for one reason or the other. The petitioner on 19.2.1982 filed an application before the Additional Munsiff and Judicial Magistrate that the case against him was triable as summons case and the investigation was not concluded within the period of six months from the date of his arrest an so the learned Judicial Magistrate may make an order stopping further investigation into the offence under Sub-section (5) of Section 167 Cr.P.C. The learned Judicial Magistrate rejected the application of the petitioner on the ground that it was not filed in the court before filing of the challan by the police.

3. Aggrieved by this order, the petitioner has moved this Court for redress of his grievance.

4. I have carefully perused the record and heard Mr. K.N. Tikku, learned Counsel for the petitioner and Mr. G.C. Chatterji, learned Public Prosecutor for the State.

5. It has been contended before me by Mr. K.N. Tikku, learned Counsel for the petitioner in a case triable by a Magistrate as summons case, if the investigation is not concluded by the police within a period of six months from the date on which the accused was arrested, the Magistrate is f>ound to make an order stopping further investigation into the offence, unless the Investigating Officer is able to satisfy the Magistrate that for special reasons and in the interest of justice, the continuation of the investigation beyond the specified period, is necessary. Mr. K.N. Tikku further urged that no attempt was made by the Investigating Officer to satisfy the Judicial Magistrate that there existed special reasons for the continuation of the investigation bejond the period of six months and in the interest of justice also, such continuation was necessary. According to the submission of the learned Counsel for the petitioner, the subsequent criminal proceedings filed against the petitioner after the expiry of the period of six months, was without jurisdiction and the Additional Munsiff and Judicial Magistrate committed a grave error in taking cognizance on police report based on such belated investigation.

6. In support of his above contention, Mr K.N Tikku relied upon an authority : Jai Shanker Jha v. State 1982 Cr.L.J. 744.

7. Mr. G.C. Chatterji, learned Public Prosecutor on the other hand, cont ended that the petitioner is not entitled to raise this objection after the filing of the charge sheet against him in the competent court and that the investigation carried on after the expiry of the period of six months, cannot take away the jurisdiction of the court, which is competent to try the petitioner for the offence under Section 4 of the Act.

8. 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 & Judicial Magistrate, Tonk after the expiry of the period of six months from the date of arrest of the petitioner i.e. 17.. 1981. Further, there is no dispute about the fact that the learned Magistrate did not pass an order that he was satisfied for special reason 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 masking the investigation in this case applied many 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 application. 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 law 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 on failure on the part of the petitioner to raise such objection, in 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.

9. 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 with; out substance, because in view of the clear provisions contained in Section 167 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 learner Magistrate could not legally take cognizance on the police report based upon such investigation.

10. Consequently, I have no hesitation in holding that the cognizance taken by the learned Magistrate on the police report based upon an investigation, which was without jurisdiction, after the expiry of the period of six months, cannot be said to have been legally taken in this case.

11. I, therefore, quash the criminal proceedings pending against the petitioner in the court of Additional Munsiff and Judicial Magistrate, Tonkin Criminal case No 35/82.


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