Hanuman Box Agarwalla Vs. Girish Chandra Gogoi and ors. - Court Judgment

Excerpt:
- - (6) where any order stopping further investigation into an offence has been made under sub-section (5), the sessions judge, 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. in support of his submission strong reliance has been placed on the decision of the supreme court in h. state of delhi, air 1955 sc 196 :(1955 cri lj 526). in this well known case though it was held that section 5-a of the prevention of corruption act, 1947 prohibiting investigation of a case by a police officer below the rank specified in the section..... b.l. hansaria, j. 1. a case was registered against opposite parties nos. 1 to 5 under sections 447/448/323 read with section 34 ipc. this was pursuant to a first information report lodged on 27-11-79. the accused persons came to be arrested on 2-12-79 and 27-12-79. on charge-sheet being submitted on 18-11-80, the accused persons faced their trial and the learned trial court held the accused persons guilty under the aforesaid sections of law., but then the accused were acquitted because of what has been laid down in section 167(5) of the cr. p.c. the acquittal order has been assailed by the complainant in this revision.2. the revision came up for hearing before a learned single judge (homchoudhuri, j.) before whom the decision rendered by another learned single judge of this court.....

Judgment:

B.L. Hansaria, J.

1. A case was registered against opposite parties Nos. 1 to 5 under Sections 447/448/323 read with Section 34 IPC. This was pursuant to a first information report lodged on 27-11-79. The accused persons came to be arrested on 2-12-79 and 27-12-79. On charge-sheet being submitted on 18-11-80, the accused persons faced their trial and the learned trial Court held the accused persons guilty under the aforesaid Sections of law., But then the accused were acquitted because of what has been laid down in Section 167(5) of the Cr. P.C. The acquittal order has been assailed by the complainant in this revision.

2. The revision came up for hearing before a learned single Judge (Homchoudhuri, J.) before whom the decision rendered by another learned single Judge of this Court (Phukan, J.) in State of Tripura v. Niranjit, (1987) 1 Gauhati LR 231 was relied on on behalf of the accused persons. It has been held in Niranjit that where a charge-sheet is submitted beyond the period of 6 months after the arrest of the accused in a summons-case and no permission has been granted within 6 months for allowing continuance of investigation the entire proceeding is liable to be set aside.

3. Brother Homchoudhuri, J. however felt that the following questions arising out of the provisions contained in Section 167(5) need to be considered by a larger Bench:

i) Whether the entire proceeding becomes without jurisdiction and nullity in case invevestigation in a summons-case is not completed and the charge-sheet is not submitted within a period of 6 months from the date of arrest of the accused unless the Investigating Officer making the investigation satisfies the Magistrate that for a special reason and in the interest of justice the continuation of the investigation beyond the period of 6 months is necessary?

ii) Whether the proceeding becomes without jurisdiction and nullity only because the charge-sheet was submitted after 6 months though investigation was completed within a period of 6 months from the date of arrest of the accused in a summons-case?

iii) Whether the proceeding is a nullity and Magistrate cannot take cognizance, if the investigation continues beyond 6 months of arrest of the accused although the part of investigation completed before expiry of 6 months make out a case for trial against the accused?

4. The revision is before us to answer the above questions. Before proceeding further we may note Section 167(5) and (6) of the Cr. P.C.

(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of she 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.

(6) Where any order stopping further investigation into an offence has been made under Sub-section (5), the Sessions Judge, 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.

5. As the charge-sheet was apparently submitted in the present case beyond the period of 6 months from the date of arrest of the accused, the applicability of Section 167(5) is apparent as the alleged offences were triable as summons-case. Question however is whether the provisions contained in Section 167(5) is a mandatory provision and if so whether violation of the same would render the trial illegal and without jurisdiction. It may be pointed out that in the Criminal Procedure Code, 1898 a provision similar to 167(5) did not find place. The Code of 1973 introduced Some drastic changes in the law relating to procedure for criminal trials. One object sought to be achieved was to avoid delay in investigation and trial. It is a notorious fact that under-trial accused prisoners remain behind the bars for long period even without charge-sheet being filed against them as many of these prisoners are either unable to furnish bond or are not released on bail. To avoid such unfortunate state of affairs Section 167 of the new Cr. P.C. made an effort to expedite the investigation and with that end provision was made in this Section for the release of the undertrials on bail as of right if investigation is not completed within a specified period. Section 167(5) was similarly enacted to avoid delay in investigation which was harmful not only to individual but also to the society as undertrial prisoners languished in detention even though accused of offences of comparatively minor nature triable as summons-cases.

6. The apex Court of the land had occasion to notice the provision contained in Section 167(5) in two of its Hussainara Khatoon's cases, AIR 1979 SC 1360 ; (1979 Cri LJ 1036) and AIR 1979 SC 1377 : (1979 Cri LJ 1052). In these two cases the concern of the Court was expressed for those prisoners who were languishing in the jails of Bihar for a long number of years exceeding 6 months though the offences charged against them were triable as summons-cases. The Court, therefore, directed the State of Bihar to enquire into these cases and where it was found that the investigation was going on for a period of more than 6 months without satisfying the Magistrate that for special reasons and for the interest of justice the continuation of investigation beyond the period of 6 months was necessary, the State would release the undertrial prisoners unless the necessary orders of the Magistrate were obtained within a period of one month.

7. The provision contained in Section 167(5) was held to be mandatory in Babulal v. State of Rajasthan, 1982 Cri L.J. 1001 (Raj). Shri Barua appearing for the petitioner has urged that even though the requirement of Section 167(5) may be mandatory the same is not sufficient to regard the trial as null and void even if carried on in defiance of this provision of law unless prejudice is caused. In support of his submission strong reliance has been placed on the decision of the Supreme Court in H. N. Rishbud v. State of Delhi, AIR 1955 SC 196 : (1955 Cri LJ 526). In this well known case though it was held that Section 5-A of the Prevention of Corruption Act, 1947 prohibiting investigation of a case by a police officer below the rank specified in the section was mandatory in character, yet the trial which followed in violation of this section was not held to be null and void. Relying on this decision it has been contended that in the case at hand also unless any prejudice was caused to the accused because of taking cognizance of the case investigated in violation of Section 167(5), the trial could not be nullity.

8. It may be pointed out that in some of the decisions referred by Shri Barua it has been held that prejudice is the test to decide whether a trial in violation of Section 167(5) would be a nullity or not (See Public Prosecutor v. S. P. Reddy, 1988 Cri LJ 1057 (Andh Pra) and Bhaskaran v. State of Kerala, 1987 Cri LJ 170 (Kerala)). On this aspect of the matter the view taken in State v. Jai Bhagawan, 1985 Cri LJ 932 (Delhi) is that no question of prejudice would arise because cognizance would be taken on the basis of the materials collected during investigation which had been conducted within the period of 6 months.

9. On the question as to whether cognizance can be taken even if there is a violation of Section 167(5) the views expressed by different High Courts have been different. It was held in Jaysankar v. State, 1982 Cri LJ 744 (Calcutta) that the cognizance would be bad in law and the subsequent proceeding would be without jurisdiction. It was reiterated in Pappa Rao v. State, 1985 Cri LJ 546 (Calcutta) that a Magistrate cannot proceed to try an accused on a charge-sheet submitted as a result of investigation continued in breach of this provision.

10. The aforesaid view has however not been approved by the other High Courts of the country. It was held by the Andhra Pradesh High Court in S. P. Reddy's case, 1988 Cri LJ 1057, that so far as taking of cognizance is concerned, limitation has been provided by Section 468 of the Code. Because of this if cognizance is taken on the basis of charge-sheet filed within the period of limitation mentioned in Section 468 but after the period of 6 months the same would not be totally barred. The same view found favour with the Kerala High Court in Bhaskaran, 1987 Cri LJ 170. The Bombay High Court also took this view in State of Maharashtra v. P. C. Tatyaji, 1986 Cri LJ 332 by pointing out that cognizance can be taken under Section 190 of the Code on the basis of defective charge-sheet. It has been held in Jagannathan v. State, 1983 Cri LJ 1748 (Madras) that carrying On of investigation beyond the period of 6 months without the permission of the Magistrate would be illegal but if cognizance has once been taken by competent Court, 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 proceeding unless it is shown that prejudice has been caused to the accused and miscarriage of justice has resulted thereby. It was held in D. Kumar v. State of Karnataka, 1985 Cri LJ 1347 (Karnataka) that the bar imposed by Sectipn 167(5) is for the investigation and not for the Court taking cognizance of the case.

11. Another aspect of the matter on which there is difference of opinion among different High Courts of the country is relatable to the question as to whether permission visualised by Section 167(5) has to be granted before expiry of 6 months or the same can be accorded after expiry of this period. It was held in Pappa Rao v. State, 1985 Cri LJ 546 (Cal) that leave to continue the investigation beyond 180 days should be taken before expiry of the said period. In Ram Kumar v. State, 1981 Cri LJ 1288 (Cal) it has been pointed out that as Section 167(5) has mentioned about 'continuation of the investigation' the same presupposes an investigation which is in progress. Because of this, required permission has to be taken before the expiry of 6 months mentioned in this Section. It was pointed out that as against the aforesaid terminology used in Section 167(5), Section 167(6) speaks of 'further investigation', because of which a Sessions Judge can order further investigation even after expiry of the period of 6 months visualised by Section 167(5). The view expressed in Tatyaji's case (1986 Cri LJ 332 (Bombay)) is that as Section 167(5) has imposed a mandatory duty upon the Magistrate to stop investigation after 6 months, if the Magistrate has not complied with the provision the Investigating Officer may assume that continuation of the investigation has been permitted. In Bhaskaran's case, 1987 Cri LJ 170 it was held by the Kerala High Court that there is no automatic stoppage of investigation under Section 167(5). It was pointed out that even in a case where interest of justice demands investigation may not automatically close for the mere laches of the investigating agency in not getting the required permission from the Magistrate. In this case it was further held that evidence collected after 6 months would not be unacceptable.

12. A related question which has come up for consideration in the aforesaid cases is whether filing of charge-sheet is a part of investigation. It was held in Pappa Rao, 1985 Cri LJ 546, by the Calcutta High Court that that Section 173(2) would indicate that charge sheet is not a part of investigation inasmuch as this section states that as soon as investigation is completed, the officer-in-charge of the police station has to forward to a Magistrate a report. This report is known as final report where no case has been made out or a charge sheet where prima facie case has been made out. While coming to this conclusion, some observations made by the Supreme Court in Rishbud, AIR 1955 SC 196 : (1955 Cri LJ 526) were noted and it was pointed out that in that case the point under examination had not come up for consideration as this Court was examining the statutory obligation of an investigating officer and in this context it was observed that formation of opinion regarding placing of accused before a Court for trial was one such obligation. This is far from saying that filing of charge sheet is integral part of investigation. The language of Section 173(2) of the Code would not bear the statement. This was also the view taken in Public Prosecutor v. B. Anjaneyulu, 1986 Cri LJ 1456 (AP).

13. We have duly considered the different aspects of the matter involved in the case and in the light thrown by the decisions noticed above we would express our views as below:

1) Full effect has to be given to the legislative intent behind framing of Section 167(5). As already noted the object sought to be achieved by Section 167(5) is to avoid delay in investigation and trial. This had become necessary because it was found as a notorious fact that undertrial prisoners languished behind the bars for minor offences for a long period even without charge sheet having been filed against them. This period at times exceeded the maximum period of imprisonment provided for the offence. We therefore observe that in those cases which attract Section 167(5) if charge sheet is not filed within a period of 6 months from the date of the arrest of the accused and where permission for extension of time has not been taken from the Magistrate, the accused persons, if in jail, shall be released forthwith from detention. This would fulfil legislative intent to a great extent.

2) Permission for continuation of investigation beyond the period of 6 months has to be obtained before the expiry of 6 months. For this purpose obtaining of permission after the expiry of 6 months would not do. According to us, this follows from the language of Section 167(5) which permits the Magistrate to order 'continuation of the investigation'. With respect we do not agree with the Bombay view expressed in Tatyaji, 1986 Cri LJ 332 that non-passing of any order by the Magistrate stopping further investigation may be taken as implied permission to continue investigation. In a matter so important as the one at hand, we have not thought it permissible to deny an important right to the accused on the basis of an implied order. In view of heavy pendency, passing of order contemplated by Section 167(5) may miss the Magistrate in many cases.

3) Section 167(5) has put a fetter on continuation of investigation beyond the period of 6 months but it has not dealt with the question of taking of cognizance which aspect of the matter has been dealt with by section 190 which finds place in Chapter XIV of the Code dealing with conditions requisite for initiation of proceedings, whereas Section 167(5) is a part of Chapter XII whose subject matter is information to the police and their powers to investigage. It would therefore be permissible to take cognizance of an offence even after six months if the limitation mentioned in Section 468 of the Code has not expired. This would apply to those accused persons who are not in jail at the relevant time. This is also subject to what is being stated later under point No. (6).

4) Even though it would be permissible to take cognizance of the offence on the basis of the charge sheet submitted beyond the period of 6 months visualised by Section 167(5), it would be open to the Magistrate to look into those materials alone which had been collected within the periof of 6 months and to ignore other materials put on record. Confinement to the materials collected within 6 months would not require examination of the question regarding prejudice to the accused, which aspect has been mentioned in many cases.

5) The fate of the trial cannot be decided on the yardsticks of prejudice to the accused because it would be difficult on the part of the. accused to establish the question of prejudice in very many cases because of which the statutory safeguard given by Section 167(5) would be rendered nugatory in large number of cases. Question of prejudice which was emphasised in Rishbud, AIR 1955 SC 196 : (1955 Cri LJ 526) should not apply to a provision like 167(5) which has dealt with the limitation of conducting investigation inasmuch as when dealing with a provision setting time limit question of prejudice cannot be regarded as relevant and germane.

6) Filing of charge sheet is not a part of investigation and as such if there be reason-able delay in filing of charge sheet on the basis of the materials collected within the period of 6 months mentioned in Section 167(5), cognizance of the offence by the Magistrate would not be illegal. Of course, here also only reasonable latitude would be given to the investigating agency by way of condoning short delay and if the delay be long the Magistrate may rightly refuse to take cognizance of the case covered by Section 167(5). Delay beyond three months may not be regarded as reasonable in this regard. It may be pointed out that in Tatyaji's case, 1986 Cri LJ 332, the Bombay High Court stated that if delay in forwarding charge sheet be short no question of miscarriage of justice would arise.

14. We, therefore, answer the three questions framed by brother Homchoudhuri, J. by stating as below:

i) The entire proceeding would not become without jurisdiction and nullity in those cases where investigation in a summons-case is not completed within a period of 6 months where no permission has been obtained to continue investigation beyond the period of 6 months. This is subject to what has been stated under point No. (6) above.

ii) The proceeding would not become without jurisdiction and nullity only because the charge-sheet was submitted after 6 months. This applies to the accused person not in jail at the relevant time. But then the delay in submitting charge-sheet should be short and reasonable. If the delay be inordinate or unreasonable (where the delay should be regarded as unreasonable has been dealt with above), the Magistrate may refuse to take cognizance of the offence which is the subject matter of the charge sheet.

iii) The proceeding would not become a nullity if the materials collected before expiry of 6 months make out a case for trial against the accused. This applies to those cases which are connected with the accused persons not in jail at the relevant time.

15. In the aforesaid view of the matter the present order of acquittal cannot be sustained. But then as the acquittal came to be passed about 6 years back relating to an offence which had taken placed about 10 years ago we are not inclined to interfere with the order of acquittal, which would have required re-examination of the case by the learned trial Court in the light of the observations made above, as the offence of simple house trespass and of giving blows to the complainant.

15A. The revision is disposed of accordingly. The little delay in delivery of judgment has occurred due to closure of the Court for long vacation soon after the hearing was over.

H.K. Sema, J.

16. I agree.