Jagannathan and Others vs The State

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 u/s 167(5), Cr.P.C., and seeking an order striking off the charge-sheet and discharging the accused.

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.

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 petitioner-accused, as contemplated u/s 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 petitioner 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.

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).

From the above order, it is clear that even though the charge-sheet is purport 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 investigating had continued till 25-2-1982 and the investigation had reached its finality only thereafter and under these circumstances the

mere facts 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 investigation 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 S. 173(2), Cr.P.C., and therefore, in the present case, as rightly

pointed out by the learned counsel for the petitioner, 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.

Now, let me examine the principle of law underlying S. 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 S. 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 Session 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-section (1)

and (2) of S. 167. Section 167 of the new Code corresponds to Section 167 of the old Code. In S. 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 S. 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 that 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 S. 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 u/s 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 S. 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 offencer making the investigation shall forthwith transmit to the nearest judicial magistrate a copy of the

entire 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 term 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 S. 344 (corresponding to Section 309(2) of the new Code). The validity of this procedure

was very much doubted, because that S. 344 was intended to operate only after the Magistrate had taken cognizance of the offence which could

be properly done only after a final report u/s 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 that 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 offences. 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 of 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 investigation 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 thing can only be

inferred from the other provisions of the Code which I shall presently refer to. Section 48(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 come within the definition of an 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 exceeding 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, where under the Court is given a discretionary power to the take cognizance of an offence after the expiry

of the period of limitation by extending the period satisfied on the facts and circumstance of each case. This period of one year or three years, as

the case may be, also, impliedly suggests that the investigations has to be completed within that period. In this context, reference can be made to

the decision of the Supreme Court in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, , wherein their Lordships, while

examining the scope of S. 468 of the Code, have expressed their view as follows :

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 Articles 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 offence, 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-section (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 summons case from the date of the arrest of

the accused, obviously with the aim of eradicating the malady of protracted investigation of such offence, 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 investigation 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 investigation 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.

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 S. 167, Cr.P.C. independent

of each other and is that 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 the individuals involved but also to the society and that the procedure should not be complicated

and should, to the utmost extent possible, ensure a fair deal to the poorer sections of the community. It is 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 S. 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 posses 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 case 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 that 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 of 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 a contemplated u/s 437(3) of the Code. In this

context, reference fan 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 accuse 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 of bail or not. If the Court insist on the under

- trial prisoner, 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.

In the recent past, the Supreme Court has rendered a series of landmark decisions, which give a new outlook and seeks 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

and Others Vs. Home Secretary, State of Bihar, Patna, , 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 were 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 impreative 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 is 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.

Krishna Iyer, J., speaking for the Bench in Nimeon Sangma and Others Vs. Home Secretary, Government of Meghalaya and Others, 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, indeed 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 term exceeding one year but not exceeding three years, respectively : See Hussainara Khatoon

and Others Vs. Home Secretary, State of Bihar, Patna, . Of course, u/s 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 into he interests of justice, since such and 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) form 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 accuses is on bail or continues to be in detention.

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 summon 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 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 tow functionaries are independent of each other.

A Division Bench of the Calcutta High Court, in Jay Shankar Jha Vs. The 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 CWN 559 and Ram Briksh Jadab Vs. State of West

Bengal and Others, .

A question may arise whether the arrest of the accused contemplated u/s 167(5) would mean only and arrest effected by a police or and

officer making the investigation and whether it will, for the invocation of this provision, included also the surrender by the accused before the

Magistrate.

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 u/s 41 to 44 of the Code - will come within the meaning of the term ""arrest"" occurring in S. 167(5). Once a

person is arrested, for the purpose of investigation, the remand is made u/s 167. A Division Bench of the Kerala High Court in Velu Viswanthan

and Others Vs. State Etc., 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 u/s 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 u/s 167. This view has been adopted by Varadarajan, J., of this Court, as he than was, in State by Public

Prosecutor v. Mookkan, (judgment of this Court in Criminal Appeals Nos. 25/78 and 602/78 and Crl.R.C. 644/77, D/- 28-3-1980). In a recent

Judgment of the Supreme Court in Niranjan Singh and Another Vs. Prabhakar Rajaram Kharote and Others, , 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 Ramakrishna in re

(Order of this Court in Crl.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 surrenders 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.

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.

The Supreme Court, in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, in which the question arose with regard to

the mandatory nature of Section 167(5), Criminal P.C., has observed as follows :

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 investigations 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 Magistrate in Bihar have been complying with the provisions of

Section 167(5).

Subsequently, the same principle has been reiterated in the case of Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, ,

with the following observation :

We had given direction by our Order dated 26th February, 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 form 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 that 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 Babulal Vs. 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, 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 S. 167(5).

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 a six months from the dated

on which the accused was arrested, the Magistrate must make an order stopping the investigation into the offence unless the officer making the

investigating has, before the expiry of the said six months period of six month''s period, satisfied 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, 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 will not ipso facto be deemed to be an implied permission by the Court to

the investigation 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 (1983 Cri LJ 39)(Cal). Once

there is an order passed stopping the investigation, as rightly pointed out in Baby 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 u/s 167 arises only when the investigation is pending, unless an applications 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 u/s

167(6) will not arise unless the officer making the investigation has taken out an application before the Magistrate under S. 167(5) before the

expiry of the six months period and that has been rejected.

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 u/s 173(2) consequent upon the investigation conducted beyond the period of six moths without the

permission of the Magistrate, are invalid and as such liable to be quashed. In Jay Shankar Jha''s case 1982 Cri LJ 744, 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 the cognizance taken by the Magistrate on the 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 83 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 (1983 Cri LJ 39) 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.

The Rajasthan High Court in Babu Lal''s case 1982 Cri LJ 1001 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 investigation 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.C., 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 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.

In Major E.G. Barsay Vs. The State of Bombay, , 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 and Inder Singh Vs. The State

of Delhi, , 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 in validity of the preceding investigation

would not vitiate the result unless miscarriage of justice had been occasioned thereby. In The State of Uttar Pradesh Vs. Bhagwant Kishore Joshi, ,

it has been pointed out as follows :-

It is, therefore, necessary for the accused to thrown 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 adducting 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 of 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 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.

Chinnappa Reddy, J., of the Andhra 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 illegality has resulted in a

miscarriage of justice.

See also Assanar v. State of Kerala 1969 MLJ 189.

The Supreme Court, in Bai Radha Vs. The State of Gujarat, , 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 u/s 537 of the old Code.

In M.C. Sulkunte Vs. State of Mysore, , 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 M LW 11; Muni Lal Vs. Delhi Administration, ; State of

Andhra Pradesh Vs. P.V. Narayana, : Khandu Sonu Dhobi and Another Vs. State of Maharashtra, ; and A.C. Sharma Vs. Delhi Administration, .

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 S. 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 vitiated 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 S. 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 it 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.

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.

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 S. 167(5).

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 S. 482, Cri.P.C. for quashing the proceedings since the case is pending for more than two years. Further, I feel that the expedience of

justice demands that in the present case the alternative plea of the learned counsel has to be considered.

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 S. 468(2)(b) viz., beyond a period of one year. In the

present case, the prosecution has not filed any petition under s. 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.

In the result, the revision is allowed.

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 S. 167(5) of

the Cr.P.C. In this context, it will be opposite to refer to the following observation of the Supreme Court in Hussainara Khatoon and Others Vs.

Home Secretary, State of Bihar, Patna, :

We would also request the High Court to draw the attention of the Magistrate to the provision in S. 167, sub-section (5), and ensure compliance

with the requirement of this provision by the Magistrates.

Since as often as not, jarring piece 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 may 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'' Court in the City of Madras including the Courts of the Chief Metropolitan Magistrate and the Additional Chief Metropolitan

Magistrate, 57 First Class Magistrate''s Courts and 143 Judicial Second Class Magistrate''s 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 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 S. 173, Cr.P.C. for reasons best known to the investigation 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 register 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 S. 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 not need for any more remand

of the accused for the purpose of investigation.

(3) By applying S. 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 u/s 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, 1980 SCC 35 : 1949 Cri LJ 1036 all the under-trial prisoners against

whom charge-sheets have not been filed within the specified period of limitation as contemplated u/s 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-sheet 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 a 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 Magistrate 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.

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.

Petition allowed.