State of Orissa vs Abdul Nashiri Khan

K.C. Jagadeb Roy, J.—Pursuant to the information by one Choudhury Das, Constable No. S1107 of the 7th Battalion, O.S.A.P. the Inspector in-charge, Capital Police Station registered a case No. 480/84 on 31-10-1984 under Sections 34, 11, 323 Indian Penal Code and directed the Sub-Inspector Sri A.F. Khan to take up investigation. It course of investigation, the Investigating Officer arrested one Abdul Nashiri Khan on 14-11-1984 and released him on bail. The said Abdul Nashiri Khan filed a petition u/s 167(5) of the Code of Criminal Procedure on 15-5-1985 with a prayer to direct the stoppage of further investigation on the ground that the case being a summons case and the investigation having not been completed - within a period of six months from the date of his arrest, was not to continue without permission of the Court.

On receipt of the said petition from the accused the Court called for a report from the Officer in-charge, Capital P.S. on the said petition but the Officer in-charge of the Capital P.S in-charge of investigation did not make any report as was required by the Court and on the other hand filed the charge-sheet on 28-6-1985 against all the four-accused persons. The Sub-Divisional Judicial Magistrate, 8hubaneswar who was insets in of the case by his order dated 18-7-1985 refused to take cognizance or the offence on the basis of the charge-sheet submitted in the case, holding that he was incompetent to direct initiation of a judicial proceeding upon an illegal charge-sheet submitted in die case as the charge-sheet was not filed within a period of six months and passed order abating the proceeding. Against this order of the learned Sub-Divisional Judicial Magistrate, Bhubaneswar passed in G.R. Case No. 2149 of 1984 the State of Orissa has ordered this criminal revision.

Learned Addl. Government Advocate appearing for the State of Orissa has submitted that the continuance of investigation and filing of a charge-sheet in the Court are two different things and even though Section 167(5) of the Code of Criminal Procedure precludes the Investigating Officer to make further investigation beyond a period of six months from the date of arrest of the accused in a summons case without the permission of the Court, it does not bar the prosecution to submit the charge-sheet beyond period of six months as the charge-sheet can be lawfully filed in time within a period of six months according to Section 468 of the Code of Criminal Procedure. Therefore, it is urged by him that the impugned order cannot be allowed to stand and should be quashed since he was in wrongful apprehension that it had no jurisdiction to entertain a charge-sheet and to take cognizance of the case if the same was fi1ed beyond a period of six months. It is argued on behalf of the accused by Mr. Jena, learned Counsel appearing for the accused that if the investigation is not complete within a period of six months and continued thereafter without the permission of the Court the entire investigation will be deemed to be illegal and any charge-sheet filed on the basis of such an investigation would be an illegal one and no cognizance should be taken by Court on such a charge-sheet. The points needs close scrutiny.

There is divergent opinion amongst different High Courts in India regarding taking up cognizance of a charge-sheet in a summons case filed beyond the period of six months from the date of arrest of the accused and when investigation continued beyond title period of six months without the permission of the Court. In Kumar v. State of Karnataka, reported in Crimes 1985 Vol. 2 at page 81, a Single Judge of Karnatak High Court has stated thus:

...But, the bar u/s 167(5) is for the investigation and not for the Court taking cognizance of the case. Therefore, at best it can be said that the filing of the charge-sheet by the Investigating Officer beyond the period of six months from the date of the arrest of the accused was illegal and the evidence collected by the Investigating Officer after the period of six months has to be excluded from consideration. But, it is well settled in view of the decision of the Supreme Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi, that a defence or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance of trial.

A similar view was also taken by the Delhi High Court in the case of Court on its own motion v. State dl Jai Bhagwan, reported in 1985 II Crimes 97. The Delhi High Court took into consideration the view expressed by Karnatak High Court in this matter and the contrary view taken by Calcutta and Rajsthan and ultimately followed the view expressed by Karnatak High Court. In accepting the view of Karnatak High Court the Division Bench of the Delhi High Court followed the observations of the Supreme Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi, which read thus:

It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the know ledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified by ordering such re-investigation as the circumstances of an individual case may call for.

A similar view was also taken by the Supreme Court in M.C. Sulkunte Vs. State of Mysore, and the State of Andhra Pradesh Vs. P.V. Narayana, .

The Calcutta High Court however had taken a different view. In Ram Briksh Jadab Vs. State of West Bengal and Others, , a single Judge of the Calcutta High Court held thus:

It must, therefore, be held that the continuation of investigation beyond the period of 180 days was illegal and the learned Magistrate was not competent to take cognizance on the challan submitted as a result of such investigation.

In an earlier decision of the Calcutta High Court in the case of Jay Shankar Jha Vs. The State, , a Division Bench of the said High Court also held the same view. In that case the Court held that where in a summons case, the investigation of the case was not concluded within a period of six months from the date of the arrest of the accused, and no attempt was made by the investigating officer to satisfy the Magistrate as required by Section 167(5) that for "special reasons" and in the "interest of justice" the continuation of the investigation beyond the period of six months was necessary the Magistrate was bound to make an order stopping further investigation into the offence. The continuation of the investigation beyond the period of six months in contravention of law was illegal and the cognizance taken by the Magistrate was had in law and the subsequent proceeding was without jurisdiction. The Court also further held that the illegality remains an illegality and the delay or failure on the part of the accused to point out the same will not make it otherwise. The question whether the accused has been prejudiced or not is thus wholly irrelevant.

After hearing both the learned Counsel for the State of Orissa and for the accused, I am of the view that the view taken by the Delhi High Court and Karnatak is correct and to be followed.

In the present case when the fact that the investigation was not complete within a period of six months was brought to the know ledge of the Court, the Court had given opportunity to the prosecution to give a report on the delay but the prosecution did not feel it necessary to make a report. Irregularity in investigation and invalid investigation, such as, investigation beyond the period of six months has not to be ignored while taking cognizance on a charge. It is true that the Code of Criminal Procedure has made provisions u/s 468 of the Code of Criminal Procedure prescribing the periods of 1imitation for taking cognizance of an offence under which the period of one year is provided for taking cognizance in the present case. If a harmoneous construction has to be made between the provisions contained in Section 167 and Section 468 of the Code of Criminal Procedure the only reasonable conclusion would that a charge cannot be thrown out from consideration for taking a cognizance merely because it was filed beyond a period of six months the cognizance should be taken and those materials which were obtained by the prosecution in the investigation beyond a period of six months has to be ignored in such circumstances.

I accordingly hold that- the learned trial Court has committed an error in law in refusing to take cognizance of the charge-sheet. The impugned order is accordingly quashed as against Opposite Party No. 1. By order dated 12-2-1990 this Court had already dismissed the criminal revision as against Opposite Party No. 2 Sri Aruna Kumar Sukla. Thus, the case is remitted back to the trial Court so that he may consider the charge-sheet afresh for taking cognizance in the case. The consideration will be confined only to the Opposite Party No. 2 of this revision.

Revision dismissed.