Narayan Chandra Paul vs The State of Tripura

D.N. Baruah, J.—On the basis of a First Information Report dated 19.7.89 lodged with West Agartala Police Station, the Police registered a case (PS Case No. 23 (7)/90) under Sections 279, 304 (A) of the Indian Penal Code against the Petitioner on the allegations that he drove a vehicle negligently and in a very high speed, causing death of three persons. During investigation police arrested accused and he was released on bail on 30.7.89. Charge sheet was submitted on 26.3.91 on completion of investigation. As the case being a summons procedure one, it was contended that submission of charge sheet after expiry of period of six months was contrary to the provision of Sections 167(5) and 468 of the Code of Criminal Procedure. Petitioner filed a petition before the Judicial Magistrate First Class, Agartala, stating that taking cognizance of the offence was illegal. However, the Judicial Magistrate rejected the petition. Accordingly, a revision has been filed praying for setting aside the Annexure-B order dated 21.1.92 passed in GR Case No. 963 of 1989 by the Magistrate.

The case was placed before a Single Bench (the Chief Justice). The learned Counsel for the Petitioner placed reliance on the decisions in State of Tripura v. Niranjit Singha and Anr. (1987) 1 GLR 231 and in Hanuman Box Agarwala v. Girish Chandra Gogoi and Ors. (1990) 2 GLR 46. Having heard the counsel, the Chief Justice was of the opinion that the correctness of the decisions required to be considered by a larger Bench, On the basis of the said order, the case has been placed before this Bench for consideration.

The question which falls for determination is - if a case triable by a Magistrate as a summons case and the investigation is not concluded within a period of six months from the dale on which the accused was arrested, whether the Magistrate can take cognizance of the offence after expiry of the period?

In State of Tripura v. Niranjit Singha (Supra) a Single Judge of this Court has occasion to deal with the provision u/s 167(5) of the Code of Criminal Procedure. The learned Single Judge after discussing decisions of various High Courts in this regard observed that" the mandate of the legislature in respect of Sub-section (5) of Section 167 Code of Criminal Procedure is clear and in cases triable under summons procedure the investigating agency must complete the investigation within a period of six months from the date of arrest of the accused failing which the Magistrate is legally bound to stop further investigation. If the investigating agency wants to proceed beyond the period of six months it must make an application before the Court within the aforesaid period and the Court may allow after applying its judicial mind continuance of investigation beyond the above period provided, the Court is satisfied that there are special reasons and that for ends of justice such continuance of investigation is necessary." The learned Single Judge further observed that any other interpretation, would make the provision nugatory and it would go contrary to the intention of the legislature. The requirement of Sub-section (5) of Section 167 of the Code must be fulfilled before the Magistrate can take cognizance. While coming to the conclusion, the learned Single Judge accepted the view expressed by High Courts of Calcutta and Rajasthan and disagreed with the view expressed by other High Courts, namely, Madras and Delhi.

In another case, registered u/s 447, 448, 323 read with Section 34 IPC, similar matter came up for consideration before a Single Judge (Homchoudhuri, J). Admittedly, the said case was also a summons procedure case and Section 167(5) of Code of Criminal Procedure was applicable. In the said case on the failure of prosecution to submit the charge sheet within a period of six months from the date of arrest of the accused, the Magistrate acquitted the accused person and the said acquittal order was assailed by the complainant in a revision before the learned Single Judge. In the aforesaid case, the opposite party relied on the decision in State of Tripura v. Niranjit Singha (Supra) on behalf of the accused. In State of Tripura v. Niranjit Singha (Supra) Charge Sheet was submitted beyond the period of six months after the arrest of the accused in a summons procedure case and no permission had been granted within six months for continuance of investigation and therefore, trial of the case was not allowed. The learned Single Judge (Homchoudhuri, J.) however, felt that three important points arising out of the provisions contained in Section 167(5) of Code of Criminal Procedure needed to be considered by a larger Bench. Those points are as follows:

(i) Whether the entire proceeding becomes without jurisdiction and nullity in case investigation 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?

In view of the reference, a Division Bench consisting of Hansaria and Sema, JJ. took up the matter to answer the points under reference.

The Division Bench considered catena of decision of various High Courts in connection with the case and in the light of the decisions mentioned in the said judgments, the Division Bench observed that the object sought to be achieved by Section 167(5) was to avoid delay in investigation and trial. This had become necessary because it was found as a notorious fact that under-trial 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. The decision in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, is an instance on the point. If the charge sheet is not filed within the period of six months from the date of arrest of the accused and when permission for extension of time has not been taken from the Magistrate, the accused person, if in jail, shall be released forthwith from detention. This fulfil the legislative intent to a great extent. Permission for continuation of investigation has to be obtained before expiry of six months. After expiry of six months permission for continuance of investigation is not available. Besides, investigation continues without an order of Magistrate stopping the prosecution does not necessarily imply a permission to continue investigation. Section 167(5) only puts a fetter on continuation of investigation beyond the period of six months, but it does not deal with the question of taking of cognizance. This aspect of the matter has been dealt with by Section 190 of the Code. Therefore, it would be permissible to take cognizance of an offence even after six months if the limitation mentioned in Section 468 has not expired, The Division Bench further observed that even though it is permissible for a Court to take cognizance of offence on the basis of charge sheet submitted beyond the period of six months, it would be open to the Magistrate to look into those materials alone which had been collected within the period of six months and not other materials on record collected thereafter. Confinement of the materials collected within six months would not require examination of the question regarding prejudice to the accused. the Division Bench further observed that 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 the statutory safeguard given by Section 167(5) would be rendered nugatory in large number of cases.

The filing of a charge sheet is not a part of investigation and as such if there be a reasonable delay in filing the charge sheet on the basis of the materials collected within the period of six months referred to in Section 167(5), cognizance of the offence by the Magistrate would not be illegal However, only reasonable latitude should be given to the Investigating agency by way of condoning reasonable delay. If the delay is inordinate, the Magistrate may rightly refuse to take cognizance of the offence. The Division Bench felt that the delay beyond three months may not be regarded as reasonable in this regard. Accordingly, the Division Bench answered the question framed by the learned Single Judge (Homchoudhuri, J.) as follows:

(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.

After considering the entire legal aspect of the matter the Division Bench came to the conclusion on the facts of the said case that the order of acquittal passed by the Magistrate without considering all these aspects of the matter could not be sustained.

These two decisions have been referred by another Single Judge (the Chief Justice), who was of the opinion that the correctness of the decisions required reconsideration by a larger Bench.

We have heard Mr. B.N. Majumdar, learned Counsel for the Petitioner and the learned Advocate General for the State of Tripura. Mr. Mazumdar submitted that provision of Section 167(5) of the Code is mandatory and the word ''investigation'' mentioned in Sub-section (5) not only includes various stages of collecting materials, but also includes submission of the charge sheet, Therefore, Section 167(5) puts a complete bar from taking cognizance of the offence beyond the period of six months, Hence, the Court had no power to take cognizance of an offence after expiry of a period of six months from the date of arrest of the accused in a summons procedure case. He further contended that the Court cannot take cognizance of an offence after expiry of the period of six months from the date of arrest on an incomplete investigation.

The learned Advocate General, on the other hand, supported the decision of the Division Bench. He, however, conceded that provision of Section 167(5) is mandatory. He further view our attention to the provision of Section 173 of the Code. Under Sub-section (1) of Section 173 of Code of Criminal Procedure every investigation under the Chapter XII shall be completed without unnecessary delay and as soon as it is completed, the officer in charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government.

On the basis of the rival contentions of the learned Counsel for the parties, we are to see the correctness of the two decisions, namely, State of Tripura v. Niranjit Singha (Supra) and Hanuman Box Agarwala v. Girish Chandra Gogoi (Supra). The learned Single Judge relied on the decisions of Calcutta and Rajasthan High Court and disagreed with other decisions, while coming to a conclusion that on the expiry of the period of six months from the date of arrest of the accused it was the duly of the Court to stop investigation. The learned Single Judge further held that if the investigation is not complete within the period prescribed u/s 167(5) the Court is debarred from taking cognizance of the offence. On the other hand, the Division Bench in Hanuman Box Agarwalla v. Girish Chandra Gogoi (Supra) after discussing the entire aspects of the matter and catena of decisions placed before the Court held that no doubt that Section 167(5) puts a fetter on continuation of investigation beyond the period of six months unless the investigating officer seeks further extension of time and the Court after proper application of mind comes to a conclusion that further extension of time for investigation is necessary may allow the continuance of investigation for further period, but such period should not be for a too long period, the Division Bench held that such extension should not go beyond a period of three months.

The object and reason of incorporating various provisions of Section 167 is patent from the language used. The legislative changes u/s 167 are made with object to eliminate the chronic malady of protracted investigation Sub-section (5) of Section 167 Code of Criminal Procedure deals with investigation in summons procedure case, which are new. Sub-section (5) puts a time limit for continuation of investigation in such cases and provides for stopping of the investigation after six months from the date on which the accused was arrested unless the investigating officer satisfies the Magistrate regarding its (sic) beyond such period for special reason or in the interest of justice. Sub-section (6) of Section 167, however, authorises the Sessions Judge to order for further investigation by vacating the order made by the Magistrate slopping further investigation and direct further investigation 10 be made into the offence subject to such directions. Sub-section (5) of Section 167 empowers the Magistrate to stop further investigation after a period of six months in a summons case, We quote the Section 167(5):

167(5) 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.

A bare reading of Sub-section (5) of Section 167 clearly indicates that in a summons case if the investigation is not concluded within a period of six months from the date of arrest, the Magistrate shall make an order stopping further investigation, unless the investigating officer 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. Sub-section (5) only bars continuation of investigation, therefore, it is necessary to see what the word investigation'' means. The word ''investigation'' is defined in Section 2(h) of the Code. We quote Section 2(h):

Section 2(h): "Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person other than a Magistrate who is authorised by a Magistrate in this behalf.

From the definition it is clear that the word ''investigation'' means only collection of evidence by the Police or any person other than a Magistrate. This definition does hot include the charge sheet. Therefore, Section 167(5) only bars collection of evidence by the Police or any person other than the Magistrate, after expiry of the period referred to therein.

From a close reading of Section 173 it will appear that the charge sheet is to be submitted only after collection of evidence by the police or by any other person. Section 173 directs the investigating agency that every investigation under this Chapter shall be completed without unnecessary delay. Sub-section (2)(i); refers that as soon as it is complete, the officer in charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. We are of the opinion that this report is the charge sheet. Therefore, charge sheet does not form a part of investigation. In view of the above, the contention of the learned Counsel for the Petitioner that the charge sheet is also a part of the investigation is contrary to the provisions of the Code of Criminal Procedure. The charge sheet is only a report to the Magistrate for taking cognizance of the offence.

Further, Section 167(5) only bars further investigation and it does not include charge sheet. The provision for taking cognizance of offence is dealt with in Section 190 of the Code. Bar of taking cognizance is not contemplated in Section 167(5) of the Code. We find various provisions which put a bar in certain circumstances on taking cognizance of the offence, viz; Sections 195 to 198(A) and 468. Section 468 puts a bar in taking cognizance of an offence after expiry of the period of limitation prescribed therein. Section 167(5) is a safeguard to the accused persons so that investigation should not prolong and the accused is not unnecessarily harassed. That does not mean that the evidence if collected during the period prescribed cannot be taken into consideration by the Magistrate for taking cognizance of the offence. If the investigating agency is able to collect materials within the period of six months, however, for some reason, the charge sheet is filed after expiry of that period we are of the opinion that the Magistrate definitely has got the power to consider those materials for taking cognizance of the offence. The sufficiency of materials for taking cognizance is question of relevancy and that has to be dealt with in each cases. It does not prohibit the Magistrate to take into consideration of the materials. Therefore, taking cognizance of the offence on the basis of the collected materials within the period prescribed in the section is legal. It is the satisfaction of the Magistrate which is the prime consideration for taking cognizance of the offence.

Next question is what should be the time limit for further investigation of the offence, which a Magistrate can allow to an Investigating Officer. No doubt, the period should be as short as possible else, the object of the legislature incorporating the Sub-section (5) of Section 167 of the Code of Criminal Procedure will be frustrated. The Division Bench has fixed a time limit of three months. In our opinion, there should not be a fixed period. It will depend upon the facts and circumstances under which art investigating agency could not complete the investigation and considering all these facts, it is for the Magistrate to decide what should be the appropriate time for further continuance of investigation. No rigid time should be fixed. Therefore, we are unable to agree with the decision of the Division Bench that three months is the reasonable time. It will vary from case to case. It is for the Magistrate to consider after looking into the entire matter what should be the minimum time to complete the further investigation, keeping in mind that the continuance of further investigation should not cause inordinate delay and if the facts and circumstances do not justify even extension of a day may not be regarded as reasonable. In an appropriate case, extension of time beyond three months may be reasonable. Because, the word ''reasonable'' means moderate according to sound judgment not absurd; not greatly less or more than might be expected. It should be tolerable and fair.

In respect of other points, the Division Bench has correctly laid down the proposition, therefore. We uphold the decisions of the Division Bench on those points. The decision of the Single Bench (sic) also correct in observing -"in cases triable under summons procedure the investigating agency must complete the investigation within a period of six months from the date of arrest of the accused failing which the Magistrate is legally bound to stop further investigation. If the investigating agency wants to proceed beyond the period of six months it must make '' an application before the court within the aforesaid period and the Court may allow after applying its judicial mind continuance of investigation beyond the above period provided the Court is satisfied that there are special reasons and that for ends of justice such continuance of investigation is necessary." But we are unable to agree with the opinion of the learned Single Judge in observing-"...in any case triable by a Magistrate as a summons ease the requirement of Sub-section (5) of Section 167 must be fulfilled before the Magistrate can take cognizance." Therefore, we are of the opinion that this portion of the observation of the learned Single Judge is not tenable.

We decide the matter as indicated above,

The case shall now be posted before a Single Bench to decide the matter in the light of the law laid down by this Court.