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Jagannathan and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1983CriLJ1748
AppellantJagannathan and ors.
RespondentThe State
Cases ReferredHussainara Khatoon v. State
Excerpt:
- - 4. the facts of the case, as found from the order of the court below disclose that the offence took place on 2-3-1981 and the charge-sheet purported to have been signed on 6-5-1981 was submitted by the investigating officer after obtaining the opinion of the medical officer on 25-2-1982 about the nature of the injury, to the court only on 5-3-1982 (sic 9-3-82). (it is seen from the charge-sheet as well as the remand report that of the petitioners-accused, accused-3 and 4 were arrested by the police on 9-3-1981 and the other two surrendered before the court). 5. from the above order, it is clear that even though the charge-sheet is purported to have been signed by the investigating officer on 6-5-1981 he obtained the opinion of the medical officer only on 25-2-1982 and submitted the.....orderratnavel pandian, j.1. this revision is preferred by accused 1 to 4 in crime no. 49/81 of ponneri police station, registered under sections 448, 341 and 323, i.p.c. challenging the legality of the order passed by the learned judicial second class magistrate, ponneri, before whom the abovesaid case is pending, rejecting the prayer of the accused in crl. m. p. no. 1216/82 seeking the stoppage of further proceedings in the matter on the ground that the investigation in that case, which is a summons case, had not been concluded within a period of six months from the date of their arrest, as contemplated under section 167 (5), cr. p. c and seeking an order striking off the charge-sheet and discharging the accused.2. the learned magistrate has dismissed the said application on the.....
Judgment:
ORDER

Ratnavel Pandian, J.

1. This revision is preferred by accused 1 to 4 in Crime No. 49/81 of Ponneri Police Station, registered under Sections 448, 341 and 323, I.P.C. challenging the legality of the order passed by the learned Judicial Second Class Magistrate, Ponneri, before whom the abovesaid case is pending, rejecting the prayer of the accused in Crl. M. P. No. 1216/82 seeking the stoppage of further proceedings in the matter on the ground that the investigation in that case, which is a summons case, had not been concluded within a period of six months from the date of their arrest, as contemplated under Section 167 (5), Cr. P. C and seeking an order striking off the charge-sheet and discharging the accused.

2. The learned Magistrate has dismissed the said application on the following grounds, viz., (1) that the perusal of the charge-sheet discloses that the occurrence took place on 2-3-1981 and that the investigating officer had completed his investigation by 6-5-1981, (2) that the delay in sending the charge-sheet and the records to the Court on 5-3-1982 (sic 9-3-82) had occasioned due to the fact that the medical officer had given her opinion about the nature of the injury by 25-2-1982 and therefore the said delay on the part of the medical officer could not be said to be a delay on the part of the investigating officer prolonging the investigation beyond a period of six months and consequently held that the proceedings were not in derogation of the statutory directions envisaged in Section 167 (5). It is as against the said order, the present revision is filed.

3. Mr. Sam V. Chelliah, learned Counsel appearing on behalf of the revision petitioners submits that as the prosecution in this case relates to a summons case and as the investigating officer has not obtained an order extending the time for continuing the investigation after the lapse of six months from the date of arrest of the petitioners-accused, as contemplated under Section 167 (5), Cr. P.C. the investigation conducted after the lapse of the statutory period of six months from the date of arrest of the petitioners without the permission of the Court, culminating in the laying of the charge-sheet, should be held to be non est in the eye of law and hence the entire proceedings before the Court below should be quashed.

4. The facts of the case, as found from the order of the Court below disclose that the offence took place on 2-3-1981 and the charge-sheet purported to have been signed on 6-5-1981 was submitted by the investigating officer after obtaining the opinion of the medical officer on 25-2-1982 about the nature of the injury, to the Court only on 5-3-1982 (sic 9-3-82). (It is seen from the charge-sheet as well as the remand report that of the petitioners-accused, accused-3 and 4 were arrested by the police on 9-3-1981 and the other two surrendered before the Court).

5. From the above order, it is clear that even though the charge-sheet is purported to have been signed by the investigating officer on 6-5-1981 he obtained the opinion of the medical officer only on 25-2-1982 and submitted the charge-sheet only on 9-3-1982. Since the investigating officer had indisputably collected the evidence viz. the opinion of the medical officer about the nature of the Injury only on 25-2-1982, it should be deemed that the investigation had continued till 25-2-1982 and the investigation had reached its finality only thereafter and under these circumstances the mere fact that the charge-sheet bears the signature of the investigating officer under the date 6-5-1981 would not lead to any conclusion that the investigation had already been over. Even if the investigating officer had signed the charge-sheet on 6-5-1981 before the collection of evidence, such a charge-sheet cannot be held to be his final report within the meaning of Section 173 (2), Cr. P.C. and therefore in the present case, as rightly pointed out by the learned Counsel for the petitioners, the investigation had continued till 25-2-1982, that is to say, beyond the period of six months from the date of arrest of the petitioners. It is to be noted that the Magistrate has taken cognizance of the offence on 12-3-1982 in C. C. No. 78/82 on his file.

6. Now, let me examine the principle of law underlying Section 167 (5), Cr. P.C., which reads as follows:--

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 interests of justice the continuation of the investigation beyond the period of six months is necessary.

In this connection, Sub-section (6) of Section 167 is also relevant and it reads thus:

Where any order stopping further investigation into an offence has been made under Sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, 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 subject to such directions with regard to bail and other matters as he may specify.' For a proper understanding of the import of Sub-sections (5) and (6), I feel it is necessary to examine briefly the principle underlying Sub-sections (1) and (2) of Section 167. Section 167 of the new Code corresponds to Section 167 of the old Code. In Section 167 of the new Code, apart from certain minor changes from the old provision, provisos (a) and (b) and Explanations 1 and 2 to the provisos have been added to Sub-section (2). Sub-sections (5) and (6) of this section are also new introductions. This Section 167 comes under Chapter XII of the Code under the heading 'Information to the Police and Their Powers to Investigate' covering Sections 154 to 176. Section 57 of the Code, which is in consonance with the principle laid down in Article 22 (2) of the Constitution, provides that no person shall be detained in custody by a police officer without warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not, in the absence of a special order of a Judicial Magistrate under Section 167 exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Therefore, if the detention of the accused is required for a longer period for the purpose of investigation, the police has to follow the procedure prescribed in this behalf under Section 167 which provides that if any person is arrested and detained in custody and it appears that the investigation cannot be completed within a period of 24 hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded the officer in charge of the police station or the officer making the investigation shall forthwith transmit to the nearest judicial magistrate a copy of the entries in the diary relating to the accused and shall at the same time forward the accused to such Magistrate. The Magistrate, to whom the accused is thus forwarded, may, whether he has or has not jurisdiction to try the case, from time to time authorize the detention of the accused in such custody - police or judicial as such Magistrate thinks fit, for a terra not exceeding 15 days in the whole. If the Magistrate has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. Thus, it follows that under Sub-section (2) the duration of detention - police or judicial - to be ordered by the Magistrate with or without jurisdiction, is limited to a maximum period of 15 days in the whole and not sine die. Under the old Code, in cases involving serious and complicated offences, where investigation could not be completed within 15 days, the police developed a practice of filing an incomplete report known as preliminary report before the Magistrate having jurisdiction and then moving for further remand of the accused and getting his judicial detention extended from time to time, by resorting to Section 344 (corresponding to Section 309 (2) of the new Code). The validity of this procedure was very much doubted, because that Section 344 was intended to operate only after the Magistrate had taken cognizance of the offences which could be properly done only after a final report under Section 173 had been received and not while the investigation was still proceeding. Therefore, on the recommendation of the Law Commission, proviso (a) was introduced empowering the Magistrate having jurisdiction to authorized detention of the accused person, otherwise than in the custody of the police, beyond the period of 15 days, on the Magistrate being satisfied that adequate grounds exist for so doing, for a maximum period of 90 days if the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years, and a period of 60 days if the investigation relates to any other offence, This amendment was made as per Act 45 of 1978. On the expiry of the period of 90 days or 60 days, as the case may be, the accused is entitled to be released on bail subject to the condition contemplated therein of course as per Explanation 1, notwithstanding the expiry of the above mentioned period, the accused is entitled to be detained in custody so long as he does not furnish bail. Therefore, from the above position of law, it is clear that an accused person can de detained by the police for a period of 24 hours without any authority from the Magistrate and for 15 days in the whole under the order of the Magistrate. The Magistrate with or without jurisdiction can order detention of a person - police detention or judicial detention - for a maximum period of 15 days in the whole, and the Magistrate having jurisdiction can extend the period of judicial detention either to 90 days or to 60 days, as envisaged in proviso (a) to Section 167(2), the underlying object being to enable the police to complete the investigation within that period of detention, so that the investi-gation may not be hampered by the accused. But the Code has not specifically fixed any period of limitation within which the investigation in a warrant case has to be completed. However, Section 167 (5) fixes the period of six months for the conclusion of investigation of a case from the date of the arrest of the accused, in the absence of any permission from the Magistrate for continuation of the investigation. But the question is for how long the Magistrate could permit continuation of investigation. There is no maximum period up to which the Magistrate or on revision the Sessions Judge can permit the continuation of the investigation. These things can only be inferred from the other provisions of the Code which I shall presently refer to. Section 468 (2) (b) fixes one year as the period of limitation for taking cognizance of the offence by the Court if the offence is punishable with imprisonment for a period not exceeding one year, which offence necessarily comes within the definition of a summons case, and a period of three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years, which offence may be either a summons case (in case the sentence is imprisonment for a period not exeeding two years) or a warrant case (if the sentence is imprisonment for a term exceeding two years). But, this provision is subject to one exception viz., Section 473 of the Code, whereunder the Court is given a discretionary power to take cognizance of an offence after the expiry of the period of limitation by extending the period of limitation in certain cases, on its being satisfied on the facts and circumstances of each case. This period of one year or three years, as the case may be, also, impliedly suggests that the investigation has to be completed within that period. In this context, reference can be made to the decision of the Supreme Court in Hussainara Khatoon v. Home Secretary 1980 SCC 35 : : [1979]3SCR393 wherein their Lordships, while examining the scope of Section 468 of the Code, have expressed their view as follows (at p. 1045 of Cri. L.J.):

It is, therefore, to be seen that the under-trial prisoners against whom charge-sheets have not been filed by the police within the period of limitation provided in Sub-section (2) of Section 468, cannot be proceeded against at all and they would be entitled to be released forthwith as their further detention would be unlawful and in violation of their fundamental right under Article 21.

Sub-sections (5) and (6) newly introduced in Section 167 of the new Code are only in relation to a case triable as a summons case, that is, a case relating to an offence punishable with imprisonment for a term not exceeding two years. Of the summons cases, some are non-cognizable and bailable; some are cognizable and bailable, and some of the offences, viz., the offences falling under Sections 163, 170, 241, 254, 267, 295, 453 and 461, I.P.C. are cognizable and non-bailable. No doubt, Sub-sections (1) to (4) of Section 167 cover both warrant cases and summons cases. It is to be noted that whilst, as per proviso (a) to Sub-section (2) a person accused of an offence either in a warrant case or in a summons case, is entitled to be released on bail on the expiry of 90 days or 60 days, as the case may be, the said proviso does not ipso facto stop the investigation. But the framers of the Code have put a deadline of six months' period for completion of investigation in a summons case from the date of the arrest of the accused, obviously with the aim of eradicating the malady of protracted investigation of such offences, unless the officer making the investigation satisfies the Magistrate concerned that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. Sub-section (5) imposes statutory duties, one on the Court and another on the investigating officer. As per the first part of this sub-section, if the investigation in a summons case is not concluded within a period of six months from the date of the arrest of. the accused, there is a statutory duty on the part of the Magistrate to make an order stopping further investigation into the offence and as per the second part of the sub-section if the investigating officer wants further time beyond. the period of six months for continuing the investigation, he is statutorily obliged to satisfy the Magistrate that the continuation of the investigation beyond such period is necessary for special reasons to be mentioned and in the interests of justice

7. In this connection, the following questions arise for consideration:

(1) Are the duties cast upon the Court and the police officer under the first and the second parts of Sub-section (5) of Section 167, Cr. P.C. independent of each other and is the police (officer) statutorily obliged to get the permission of the Court to continue the investigation if it is not concluded within the six months' period fixed under that provision, even if the Magistrate has not fulfilled his obligation by stopping the further investigation into the offence?

(2) Can it be held that the Magistrate by not discharging his statutory obligation of stopping further investigation into the offence has impliedly permitted the investigating officer to continue his investigation?

(3) Whether the investigation carried on by the investigating officer beyond the period of six months from the date of arrest of the accused is illegal?

The Cr. P.C. 1973 (Act II of 1974) has introduced drastic changes keeping in view among others, certain basic principles, viz that an accused person should get a fair trial in accordance with the accepted principles of natural justice that every effort should be made to avoid delay in investigation and, trial which is harmful not only to theindividuals involved but also to the society and that the procedure should not be com-plicated and should, to the utmost extent possible, ensure a fair deal to the poorer sections of the community. It is a patent fact, and one should not feel shy to admit, that a number of under-trial prisoners are kept behind the bars for long periods mainly due to the non-completion of the investigation within 90 days or 60 days, as the case may be, as envisaged under Section 167 (2) (a) (i) & (ii). Secondly though the under-trial prisoners kept in detention for 90 days or 60 days, as the case may be are entitled to be released on bail a number of them who are very poor and practically indigent and who do not possess sufficient means or have no means to furnish bail have to Suffer incarceration silently - even in summons cases - till the cases are over and in certain cases they have to be in detention for even longer periods than the maximum term of imprisonment provided under the concerned penal provision without their trial having been commenced. It would not be out of place to mention here that more often, than not, Courts impose heavy sureties and put stringent conditions without consideration of the relevant factors and the principal purpose of bail, the indigent under-trial prisoners who could not afford bail have necessarily to be in cellular confinement till the disposal of the cases - whether they are summons or warrant cases, and they are very often treated like the convicted criminals, despite our treasured principle of criminal jurisprudence that an accused is presumed innocent until proved guilty. In the present-day social outlook, there is a deep thinking that the orthodox pattern of releasing the accused on heavy surety bonds which could be furnished invariably only by moneyed people should be changed and we should stimulate a more basic change in the system of releasing the under-trial prisoners on bail, mainly taking into consideration the stability and community roots of the accused in the society and the satisfaction of the Court that there would be no risk of their non-appearance during the trial of the cases, etc. and in case the Court considers it necessary to impose any condition, it can do so as contemplated under Section 437 (3) of the Code. In this context, reference can also be had to Sub-section (6) of Section 437, which enacts that a Magistrate trying any case of non-bailable offence should release the accused on bail if the trial is not concluded within a period of 60 days from the first day fixed for taking evidence in that case, provided the accused is in custody during the whole of the said period unless for reasons to be recorded in writing the Magistrate otherwise directs. Of course, in all situations, it is imperative on the Courts to examine the nature of the offence committed by the accused and its impact on the society and the mode of the execution of the crime, etc., to see whether the accused deserves to be released on bail or not. If the Courts insist on the under-trial prisoners even if they are indigent, to furnish heavy sureties, practically such accused would be deprived of the benefit of getting bail for the simple reason that they are caught between the jaws of poverty. In such circumstances, they are constrained to think that money is the key to open the exist gate of the jail and that only the moneyed people own the key. Therefore, I am of the view that Courts, while considering the applications for bail, should bear in mind that neither the accused is a hostage of the prosecution till the investigation is over, nor should the surety demanded for his bail partake the nature of a ransom.

8. In the recent past, the Supreme Court has rendered a series of landmark decisions, which give a new outlook and seek to bring about a drastic reform in the bail system. It would be appropriate to refer to the leading decision of the Supreme Court on this aspect, viz., Hussainara Khatoon v. Home Secretary : : 1979CriLJ1036 wherein the following observation has been made:

It is a travesty of justice that many poor accused 'little Indians, are forced into long cellular servitude for little offences' because the bail procedure is beyond their meagre means and trials don't commence and even if they do, they never conclude.... The bail system as it operates today is a source of great hardship to the poor and if we really want to eliminate the evil effects of poverty and assure a fair and just treatment to the poor in the administration of justice, it is imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich, to obtain pre-trial release without jeopardising the interest of justice .... But even under the law as it stands today, the Courts must abandon the antiquated concept under which pre-trial release is ordered only against bail with sureties. That concept is outdated and experience has shown that it has done more harm than good.' In the above-cited case, their Lordships have also given clear guidelines as to the criteria to be taken into consideration in granting bail to the accused persons in criminal cases.

9. Krishna Iyer J. speaking for the Bench in Nimeon Sangma v. Home Secretary Government of Meghalaya : 1979CriLJ941 while expressing his view that pre-trial detention for a considerable period goes against the spirit of the Cr. P.C. and the Constitution, has pointed out thus:

Criminal justice breaks down at a point when expeditious trial is not attempted while the affected parties are languishing in Jail. The Criminal Procedure Code, in Sections 167, 209 and 309, has emphasized the importance of expeditious disposal of cases including investigations and trials. It is unfortunate, in deed pathetic, that there should have been such considerable delay in the investigations by the police in utter disregard of the fact that a citizen has been deprived of his freedom on the ground that he is accused of an offence. We do not approve of this course and breach of the rule of law and express our strong displeasure at this chaotic state of affairs verging on wholesale breach of human rights guaranteed under the Constitution, especially under Article 21 as interpreted by this Court.

With a view to avoid such unfortunate state of affairs, by Section 167 of the new Code, an attempt has been made to expedite the investigation and with that end in view, proviso (a) has been enacted providing for the release of the accused on bail if the investigation is not completed within 90 days or 60 days, as the case may be. In this connection, reference also can be had to Section 468 (2) whereunder the limitation periods of six months, one year and three years have been fixed for taking cognizance of offences punishable (1) with fine, (2) with imprisonment for a term not exceeding one year, and (3) with imprisonment for a term exceeding one year but not exceeding three years, respectively: See H. Khatoon v. Home Secretary : 1979CriLJ1036 . Of course, under Section 473 the period of limitation could be extended if the delay in the investigation has been properly explained or in the interests of justice. Section 167 (2) (a) covers both summons cases and warrant cases. As pointed out supra, Section 468 (2) covers all the summons cases. Section 167(5) has been newly introduced aiming at eradicating the chronic malady of the protracted investigations and endless delay in filing the charge-sheets, by putting a deadline of six months period for completion of the investigations in all summons cases, unless the continuation of the investigation beyond the period is necessary for special reasons to be mentioned and in the interests of justice, since such an inexcusable delay in the investigation of the offence triable as summons cases which are comparatively minor in nature, would be harmful not only to the individuals concerned but also to the society at large. A plain reading of the section shows that the investigation of a case triable as summons case should be concluded within a period of six months (180 days) from the date of the arrest of the accused, unless for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is, in the opinion of the Magistrate, necessary, irrespective of the fact whether the accused is on bail or continues to be in detention.

10. Under the statutory provision, viz., Section 167(5), there are statutory duties, one cast on the Court and the other on the investigating officer. For the invocation of this sub-section, the following conditions should be satisfied:

(1) The case to which this provision is to be applied, should be one triable by the Magistrate as a summons case;

(2) the accused in that case should have been arrested; and

(3) the investigation should not have been concluded within a period of six months from the date of the arrest of the accused.

If these three conditions are satisfied, the Magistrate before whom the case is pending, is statutorily obliged to make an order stopping further investigation into the offence, unless the officer making the investigation by application satisfies the Magistrate that for special reasons and in the interests of justice the continuation of investigation beyond the period of six months is necessary. Therefore, there is a statutory duty laid on the investigating officer to satisfy the Magistrate that for special reasons (not general reasons) and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. The question is whether these duties cast on the Court and the police officer are not independent of each other. A careful examination of the section shows that the duty cast on the police officer is to be performed earlier in point of time to the duty of the Magistrate. This Could be explained by an illustration. Suppose that an accused has been arrested in a case triable as a summons case on 1-1-1982 and the investigation is continued. As per the section, the Magistrate can stop the proceedings of the investigation on the expiry of six months, viz., immediately after 1-7-1982. But, the officer making the investigation in order to get the permission for continuing the investigation, beyond the period of six months, should necessarily approach the Court and satisfy it, for special reasons and in the interests of justice, that the continuation of investigation is necessary. Therefore, it is the incumbent duty of the police officer to approach the Court even before the expiry of the six months' period, that is, on or before 30-6-1982, because once the period of six months expires, the Magistrate can stop further proceedings and in that case, the question of approaching the Magistrate seeking permission for continuation of the investigation does not arise. The only remedy open to the investigating officer, when the investigation is stopped by an order of the Magistrate on 1-7-1982 is to approach the Sessions Judge by resorting to Sub-section (6) Of Section 167 by filing a revision. Thus, it is clear that the officer making the investigation has necessarily to move the Court before which the case is pending for an order permitting continuation of the investigation beyond the period of six months, before the Magistrate discharges his duty, which comes only after the expiry of six months. It follows that these two duties cast on these two functionaries are independent of each other.

11. A Division Bench of the Calcutta High Court, in Jay Sankar Jha v. State while construing the effect of Section 167 (5) of the Code has observed that--

this satisfaction of the Magistrate must take place before the expiry of the period of six months.

See also the judgments of the same High Court in Ali Hossain v. State of West Bengal 1979 83 CWN 559 and Ram Briksh Jadab v. State of West Bengal .

12. A question may arise whether the arrest of the accused contemplated under Section 167 (5) would mean only an arrest effected by a police or an officer making the investigation and whether it will, for the invocation of this provision, include also the surrender by the accused before the Magistrate.

13. The section, as it reads, does not speak only of the arrest by the police. Therefore, an arrest made by anyone, a police officer a private person or a Magistrate, as provided for under Sections 41 to 44 of the Code - will come within the meaning of the term 'arrest' occurring in Section 167 (5). Once a person is arrested, for the purpose of investigation the remand is made under Section 167. A Division Bench of the Kerala High Court in V. Vishwanathan v. State of Kerala has held that in cases where the accused persons were not arrested by the police, but surrendered before the Magistrates, the taking into custody of such persons by Magistrates (it is not called a remand) was really under Section 167 of the Code; otherwise, a person who absconds and surrenders before a Magistrate without allowing himself to be arrested by the police cannot be questioned at all by the police and that the Legislature would never have intended such a consequence. Further it was observed that the Magistrate has also power to, arrest a person suspected of an offence and if so, where the accused person surrendered before a Magistrate and where the Magistrate took him into custody to take him into custody is under Section 167. This view has been adopted by Varadarajan, J. of this Court, as he then was, in State by Public Prosecutor v. Mookkan judgment of this Court in Criminal Appeals Nos. 25/78 and 602/78 and Cri. R. C. 644/77 D/- 28-3-1980. In a recent Judgment of the Supreme Court in Niranjan Singh v. Prabhakar : 1980CriLJ426 it has been held that where the accused has appeared and surrendered before the Sessions Judge, the Judge would have jurisdiction to consider the bail application and such accused would be considered to have been in custody within the meaning of Section 439, that custody in the context of Section 439 is physical control or at least physical appearance of the accused in Court coupled with submission to the jurisdiction and orders of the Court, that he can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody, and what he can be stated to be in judicial custody when he surrenders before the Court and submits to its directions, Singaravelu, J., in Ramakrishnan in re (Order of this Court in Cri. M. P. Nos. 3075 and 3076 of 1982, D/- 14-7-1972), has set aside the finding of the trial Magistrate making a distinction between the arrest and a surrender of the accused, and has pointed out thus:

This takes us to the next point, namely, the grievance of the petitioners that the trial Court made a distinction between arrest and surrender in its order while interpreting Section 167 (5) of the Cr. P.C. The lower Court seems to have said that only in the case of arrest, Section 167(5), Cr. p. C, will apply and not in the case of surrender. This is not a correct position of law since there is no distinction between arrest and appearance before Court direct. Therefore, this portion of interpretation of Section 167 (5) of the Criminal P.C. by the Court below is wrong.

From the above interpretation it is clear that the provisions of Section 167 of the Code shall mutatis mutandis apply to any person who surrenders before a Magistrate or is otherwise arrested. It follows that taking into custody of a person by the Magistrate on his surrender also will come within the ambit of the term 'arrest' and that the period of six months will commence to be reckoned from the date of such surrender or the arrest of the accused.

14. As Section 167 (5) reads, there is no statutory obligation on the part of the accused to raise any objection before the Court, before which the case triable as a summons case is pending, stating that the investigation beyond the period of six months should not be allowed to continue and that it must be stopped. Since there is a mandatory obligation laid on the Court to stop the proceedings on the expiry of six months, irrespective of any objection coming from the accused, the Court should suo motu order stoppage of investigation.

15. The Supreme Court, in H. Khatoon v. Home Secretary 1980 SCC 35 : : [1979]3SCR393 in which the question arose with regard to the mandatory nature of Section 167 (5), Criminal P.C. has observed as follows (at p. 1045 of Cri LJ):

We also find from Section 167 (5) of the Cr. P.C. 1973 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 beyond the period of six months is necessary. We are not at all sure whether this provision has been complied with, because there are quite a few cases where the offences charged against the undertrial prisoners are triable as summons cases and yet they are languishing in jail for a long number of years far exceeding six months We, therefore, direct the Government of Bihar to inquire into these cases and where it is found that the investigation has been going on for a period of more than six months without satisfying the Magistrate that for special reasons and in the interest of justice and continuation of the investigation beyond the period of six months is necessary the Government of Bihar release the undertrial prisoners, unless the necessary orders of the Magistrate are obtained within a period of one month from today. We would also request the High Court to look into this matter and satisfy itself whether the Magistrates in Bihar have been complying with the provisions of Section 167(5).

Subsequently, the same principle has been reiterated in the case of H. Khatoon v. Home Secretary : 1979CriLJ1052 with the following observation (para 8):

We had given direction by our Order dated 26th Feb., 1979 that the State Government should enquire into cases where the offence charged against undertrial prisoners are triable as summons cases, for the purpose of ascertaining whether there has been compliance with the provision enacted in Section 167, Sub-section (5) of the Cr. P.C. It is clear from this provision that if in any case tried 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 must 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 beyond the period of six months is necessary. With a view to securing compliance with this provision we directed that if, in a case triable by a Magistrate as a summons case, it is found that investigation has been going on for a period of more than six months without satisfying the Magistrate that, for special reasons and in the interest of justice, the continuation of the investigation beyond the period of six months is necessary, the State Government will release the undertrial prisoner, unless the necessary orders of the Magistrate are obtained within a period of one month. The reason for giving this direction was that in such a case the 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. The State Government has not filed before us any report of compliance with this direction and we would, therefore, require the State Government to do so within a period of ten days from today. We would also request the High Court to draw the attention of the Magistrates to the provision in Section 167, Sub-section (5) and ensure compliance with the requirement of this provision by the Magistrate.

Reference can also be had to Babu Lal v. State of Rajasthan , wherein the facts were these: The accused therein moved an application for his discharge from the prosecution contending that the investigation had not been completed within six months. That application was listed for arguments and meanwhile the charge-sheet was filed, The Magistrate took cognizance of the offence. It was contended that the Magistrate ought to have stopped the investigation because the Officer making the investigation had not satisfied the Magistrate that the continuation of the investigation beyond the prescribed period was necessary and that the investigation must be deemed to have been stopped without any order by the Magistrate, because the law enjoins upon the Magistrate that he shall make an order stopping further investigation. On the above facts, the Rajasthan High Court quashed the proceedings holding that the investigation conducted beyond the period of six months had to be treated as illegal and as no permission was obtained from the Magistrate, no action could be taken on the charge-sheet filed in breach of Section 167(5).

16. On a plain reading of Section 167(5) and the decisions rendered by the Supreme Court, the Calcutta High Court and the Rajasthan High Court, it is patently clear that if in any case triable 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 must make an order stopping the investigation into the offence unless the officer making the investigation has, before the expiry of the said six months' period, satisfied the Magistrate that for special reasons and in the interest of justice the continuation of the investigation bcyond the period of six months is necessary, and that the investigation conducted beyond the period of six months without the permission of the Magistrate has to be held as illegal, because investigation beyond the period of six months without such permission of the Magistrate is clear breach of the directions given under this provision. In this context, I would like to observe that the failure on the part of the Court to stop the investigation on the expiry of six months, as provided under Section 167 (5), will not ipso facto be deemed to be an implied permission by the Court to the investigating officer to continue the investigation beyond the prescribed period, as the continuation of the investigation beyond the prescribed period could be permitted by the Court only for special reasons and in the interest of justice. See Ram Briksh's case . Once there is an order passed stopping the investigation, as rightly pointed out in Babu Lal's case by the single Judge of the Rajasthan High Court, the accused involved in the concerned summons case has to be released forthwith in case he is in jail custody, since the power to remand and retain the accused in custody under Section 167 arises only when the investigation is pending, unless an application has been taken out by the police officer before the expiry of six months and that has been rejected and a revision is pending against the said order. It is to be noted that the question of revision under Section 167(6) will not arise unless the officer making the investigation has taken out an application before the Magistrate under Section 167 (5) before the expiry of the six months' period and that has been rejected.

17. Yet another question that crops up for consideration in this case is whether the cognizance taken and the proceedings conducted by the Magistrate on the charge-sheet filed under Section 173 (2) consequent upon the investigation conducted beyond the period of six months without the permission of the Magistrate, are invalid and as such liable to be quashed. In Jay Shankar Jha's case , the Calcutta High Court has held that the continuation of the investigation without the permission of the Court beyond the period of six months is in contravention of the law and as such it is illegal and hence fhe cognizance taken by the Magistrate on the conclusion of the investigation continued beyond the period of six months is bad in law and therefore the subsequent proceedings is without jurisdiction. In Ali Hossain's case 1979 CWN 559 the single Judge of the Calcutta High Court has held that the charge-sheet submitted after the lapse of six months from the date of the arrest was not in accordance with law and consequently quashed the proceedings in that case. In Ram Briksh Jadab's case a single Judge of the Calcutta High Court has quashed the proceedings taken against the accused in that case on the charge-sheet filed in pursuance of an investigation conducted beyond the period of 180 days holding that such investigation was illegal and that the learned Magistrate was not competent to take cognizance on the charge-sheet filed as a result of such investigation. In all the above cases, the proceedings were quashed only after the cognizance of the offence was taken, on the ground that cognizance could not be taken on the charge-sheet filed as a result of investigation conducted beyond the period of six months.

18. The Rajasthan High Court in Babu Lal's case wherein a number of decisions, taking the view that an illegal investigation does not vitiate the trial unless it is shown that there has been miscarriage of justice or that the accused has been prejudiced, had been cited, has left open the question as to the effect of the illegal or irregular investigation conducted by the investigating agency, stating-

the question as to the effect of illegality committed during the investigation because of the non compliance of the mandatory provisions of Section 167 (5) Cr. P. G, on a trial, when the objection is not taken early, need not be considered in this case.

The question as to whether a defective or illegal or irregular investigation would vitiate the trial of a case arose in a number of cases coming under the various enactments, and the Supreme Court and the various High Courts have held that unless and until the accused shows that he was prejudiced by such investigation or that any miscarriage of justice has occasioned, the defect, illegality or irregularity in the investigation would not vitiate the trial of the case.

19. In E. G. Barsay v. State of Bombay : 1961CriLJ828 an argument was advanced that the investigation conducted in that case in violation of Section 5-A of the Prevention of Corruption Act, 1947, was illegal. The Supreme Court, relying on H. N. Rishbud v. State of Delhi : 1955CriLJ526 held that the illegality committed in the course of the investigation would not affect the competence and jurisdiction of the Court for trial and where cognizance of the case had in fact been taken and the case had proceeded to termination, the invalidity of the preceding investigation would not vitiate the result unless miscarriage of justice had been occasioned thereby. In State of U.P. v. Bhagwant Kishore : 1964CriLJ140 it has been pointed out as follows (para 13):

'It is, therefore, necessary for the accused to throw reasonable doubt that the prosecution evidence is such that it must have been manipulated or shaped by reasons of the irregularity in the matter of investigation, or that he was prevented by reason of such irregularity from putting forward his defence or adducing evidence in support thereof. But, where the prosecution evidence has been held to be true and where the accused had full say in the matter, the conviction cannot obviously be set aside on the ground of some irregularity or illegality in the matter of investigation. There must be sufficient nexus, either established or probabilised, between, the conviction and the irregularity in the investigation.'

The Supreme Court in Sailendra Nath v. State of Bihar AIR 1968 SC 1292 : 1968 Cri LJ 1484 has ruled that when no prejudice was pleaded, much less established, an illegality committed in the course of investigation does not affect the competence and jurisdiction of the Court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. See also Bhanu Prasad v. State of Gujarat in which case it has been held that an illegal investigation does not render statements recorded therein by a police officer illegal.

20. Chinnappa Reddy J. of the Andbra Pradesh High Court as he then was, in Public Prosecutor v. K. Kanaka Rao 1969 MLJ 821 has held as follows:

'... illegal investigation does not prohibit a Court from taking cognizance of an offence on the report of a police officer based upon such an illegal investigation Where, however an objection regarding the illegality of investigation is raised at a sufficiently early stage the Court may direct an investigation by an appropriate agency if it considers that the demands of justice require it. Where, however, a case proceeds to trial, as vitiating the trial unless it is shown that such illegality has resulted in a miscarriage of illegality has resulted in a miscarriage of justice.'

See also Assanar v. State of Kerala 1969 MLJ 189

21. The Supreme Court in Bai Radha v. State of Gujarat : 1970CriLJ1279 while examining the position of a defective investigation under the provisions of the Suppression of Immoral Traffic in Women and Girls Act, 1956, held that non-compliance with Section 15 of the said Act is only a mere irregularity and the trial is not vitiated unless it is shown that prejudice has been caused by such non-compliance and that the said irregularity is curable under Section 537 of the old Code.

22. In Dr. M. C. Sulkunte v. State of Mysore : 1971CriLJ519 it was reiterated that unless it is established that there has been miscarriage of justice as a result of irregular investigation the conviction cannot be set aside. See also Pakkirisami in re 1970 MLW 11 : Munilal v. Delhi Administration : 1971CriLJ1153 : State of Andhra Pradesh v. P. V. Narayana : 1971CriLJ676 : K. S. Dhobi v. State of Maharashtra : 1972CriLJ593 and Sharma v. Delhi Administration : 1973CriLJ902 .

23. Singaravelu, J., in Ramakrishnan in re (Order in Crl. M. P. Nos. 3075 and 3076 of 1982, D/- 14-7-1982) referred to already, dismissed the petition under Section 482 of the Code for quashing the proceedings taken on an investigation conducted beyond the period of six months, rejecting the contention that the investigation conducted beyond the period of six months is illegal and hence the trial is vitiated, and observed thus:

'It is well settled that any irregularity or even the illegality in investigation does not vitiate the trial .... In our case, the charge-sheet has been filed and the case is pending trial. Therefore, this Court, at this stage cannot interfere under Section 482 of the Cr. P.C. ....'

From the decisions of the Supreme Court and the various High Courts referred to above, it is clear that once a case is taken cognizance of by a competent Court and the proceedings of the case has commenced, the mere antecedent illegality or irregularity in the investigation, on the basis of which the final report has been filed will not invalidate or vitiate the proceedings unless it is shown that prejudice has been caused thereby to the accused or any miscarriage of justice has resulted thereby. Hence, with respect, I am unable to share the view taken by the learned Judges of the Calcutta High Court in the three decisions referred to above viz that the illegal investigation conducted beyond the prescribed period of six months without the order of the Magistrate would vitiate the taking cognizance of the offence and the subsequent proceedings. Of course if a petition is filed by the accused before the taking cognizance of the offence by the Magistrate, challenging the validity of the investigation conducted beyond the prescribed period of six months without obtaining the permission of the Magistrate, the position would be different.

24. Coming to the present case the occurrence took place on 2-3-1981 and accused 3 and 4 were arrested on 9-3-1981. The rest of the accused surrendered before the Court. Though the charge-sheet is purported to 'have been signed on 6-5-1981, I have already concluded that the investigation in the present case had continued till 25-2-1982, that is to say, well over a period of six months from the date of arrest of the accused. The case has been taken cognizance of on 12-3-1982. The petition before the Court below for stopping the proceedings was filed only on 10-6-1982. Hence, in view of my above finding the cognizance taken by the Magistrate in the case and the further proceedings conducted thereafter are not liable to be quashed on the ground that the investigation was illegal.

25. Mr. Sam V. Chelliah has further submitted that though he has not filed any petition for quashing the proceedings invoking Section 482 of the Code, on the ground that the cognizance of the offence in the present case has been taken beyond the period of limitation as provided for in Section 468 (2) (b) of the Code, inasmuch as the facts of the case clearly show that cognizance was taken beyond the period of limitation, this Court may be pleased to quash the proceedings on this ground, if not on the ground of non-compliance of Section 167 (5).

26. Having regard to the facts and circumstances of this case, I am not inclined to direct the accused to come by way of a separate application under Section 482, Cr. P.C. for quashing the proceedings since the case is pending for more than two years. Further, 1 feel that the expedience of justice demands that in the present case the alternative plea of the learned Counsel has to be considered.

27. As rightly pointed out by the learned Counsel, the offences in this case, viz., under Sections 448 441 (sic 341) and 323, I.P.C. have been taken cognizance of after the expiry of the period of limitation as contemplated under Section 468 (2) (b) viz, beyond a period of one year. In the present case, the prosecution has not filed any petition under Section 473 invoking the inherent jurisdiction of the Court below to extend the period of limitation. Therefore, when the punishments provided for these offences are one year and less, the cognizance of the offences sought to have been taken within a period of one year from the date of the offences. Indisputably the trial Court has taken cognizance of the offences beyond the statutory period of limitation of one year. On that ground, the entire proceeding in C. C. 78 of 1982 on the file of the Court below is quashed, though not on the ground of the illegality of the investigation.

28. In the result the revision is allowed.

29. Before parting with the judgment, I feel that I am duty-bound to bring to the notice of all the Magistrates in the State the import of Section 167 (5) of the Cr. P.C. In this context, it will be apposite to refer to the following observation of the Supreme Court in Hussainara Khatoon v. State (1979) 3 SCR 760 : 1979 Cri LJ 1052:

We would also request the High Court to draw the attention of the Magistrates to the provision in Section 167, Sub-section (5), and ensure compliance with the requirement of this provision by the Magistrates.

Since as often as not, jarring pieces of information about the heavy pendency of criminal cases in the F.I.R. stage and the steep escalation thereof from day to day are brought to the notice of this Court and since, in my view, the Courts concerned have an activist role in ameliorating this highly deplorable state of affairs, I called for a statement from the Administrative Side of this Court with regard to the total number of first information reports pending in various Courts in the State of Tamil Nadu as on 1-4-1983. The office has collected the statistics from the various Courts in the State and placed them before me. They furnish the particulars regarding the number of first information reports pending in the 25 Metropolitan Magistrates' Courts in the City of Madras including the Courts of the Chief Metropolitan Magistrate and the Additional Chief Metropolitan Magistrate, 57 First Class Magistrates' Courts and 143 Judicial Second Class Magistrates' Courts, all pending investigation and filing of charge-sheets. On a perusal of the said statistics, it is disquieting and heart-rending to note that the total pendency of first information reports (both summons cases and warrant cases) in all the Courts in the State amounts to an alarming and threatening figure of 2,99,439, as on 1-4-1983. These first information reports relate to prohibition offences and offences under the other Acts, of which some relate to minor offences. It is deeply regrettable and genuinely contrite to note that in some of the Courts the cases registered from 1966 onwards are shown as pending, that is to say, pending for years together touching an abominable extent of 17 years. The reason for such pendency of this threatening figure is due to the non-filing of the final report as contemplated under Section 173 Cr. P.C. for reasons best known to the investigating agencies. It is not known whether the registers -- F.I.R. Index -- kept in the concerned police stations relating to these very old cases still show these cases as pending investigation or whether they have been given a quietus in their registers without informing the same to the concerned Courts.

This leads to a grave doubt whether there is proper periodical and routine checking and rechecking of the registers such as the F.I.R. Index (Form No. 12) the Register of Processes etc, maintained in the respective police stations, with the entries of the registers kept in the concerned Courts. In order to remedy this longstanding sorry state of affairs to an appreciable extent I would like to make the following suggestions:

(1) All the Magistrates in the State should take note of the pendency of the summons cases in the F.I.R. stage pending for more than six months from the date of arrest of the accused and should make orders stopping the investigations in all those cases forthwith by invoking Section 167 (5).

(2) If any accused is in incarceration in any of the summons cases pending for more than six months, that accused should be immediately set at liberty consequent upon the stoppage of investigation, since once the investigation is ordered to be stopped there is no need for any more remand of the accused for the purpose of investigation.

(3) By applying Section 468 (2) (b), Cr. P.C. all summons cases punishable with imprisonment for one year or less not taken cognizance of due to the non-filing of the charge-sheets even after the expiry of one year from the date of the offence or any other relevant date prescribed for the commencement of the period of limitation as provided for under Section 469. Cr. P. C should be struck off from the file of the Courts after giving short notice to the prosecution.

(4) As pointed out by the Supreme Court in Hussainara Khatoon's case : 1979CriLJ1036 all the under-trial prisoners against whom charge-sheets have not been filed within the specified period of limitation as contemplated under Section 468 (2) should be released consequent' upon the striking off of those cases.

(5) Warrant cases which are punishable with imprisonment for a term exceeding one year but not exceeding three years and all summons cases punishable for more than one year, all of which are pending due to the non-filing of charge-sheets beyond the period of limitation of three years should be struck off from the file after giving a short notice to the prosecution and the accused, if in jail, should be set at liberty consequent upon the striking off of those cases.

(6) There should be a periodical and routine, proper and effective checking of all the registers - F.I.R. Index and Register of Processes etc. - maintained in the police stations, by the inspecting and supervising superior police officials and any lapse should be seriously viewed.

(7) In strict compliance with the police standing orders and instructions issued then and there by the higher police officials all the station house officers should bestow much attention to see that there is a regular process-checking and that the final reports of investigation are promptly forwarded to the Courts under acknowledgment.

(8) All the presiding officers of the Magisterial Courts should keep watch over the pending cases and issue memos to the concerned stations calling for the particulars regarding the stage of investigation, and if there is any lapse on the part of the concerned police officials to send replies to the memos, it should be brought to the notice of the District higher police officials.

(9) The Chief Judicial Magistrates should see that the Magistrates under their respective jurisdictions are strictly complying with the provisions of Sections 167 (5) and 468 (2) of the Cr. P.C.

30. I hope that if the above suggestions are strictly carried out, there will be considerable improvement in the situation with regard to the pendency of the first information reports and there will be a proper observance of the rule of Law.


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