The Public Prosecutor vs Sagam Pratap Reddy

Jayachandra Reddy, J.—The specific question that falls for consideration in this revision case is "whether in a summons case the charge-sheet, i.e., the police report, can be struck off and the accused can be discharged on the ground that the investigation has not been concluded within a period of six months from the date of arrest, as contemplated u/s 167(5), Cr.P.C."

The question arises under the following circumstances:-The Station House Officer, Cumbum, filed a charge-sheet against the petitioner for the offence punishable u/s 304-A, I.P.C. in respect of an offence alleged to have been committed on 13-7-1983. The petitioner accused was arrested on 13-7-1983 itself and was released on bail on the same day. The charge-sheet was filed in the court on 18-4-1984. The trial commenced and during the course of the trial the accused filed an application seeking discharge on the ground that the charge-sheet and the trial are vitiated inasmuch as the investigation went beyond the period of six months, contrary to Section 167(5), Cr.P.C. and consequently the charge-sheet which is part and parcel of such illegal investigation, cannot be entertained and trial also is vitiated. The learned Magistrate, relying on a decision of this Court in S.M. Hussain v. State of Andhra Pradesh (1985) 2 Andh LT 24, held that the proceedings in the case are vitiated for lack of permission by the Magistrate to continue the investigation u/s 167(5), Cr.P.C. and for failure to file the police report within six months from the date of arrest of the accused. Questioning the said order, the Public Prosecutor has filed this revision.

It is submitted on behalf of the State that the investigation conducted beyond six months without the permission of the Magistrate does not automatically disentitle the police from filing the charge-sheet and that any illegality or irregularity in the investigation does not invalidate or vitiate the taking of cognizance of the offence and the subsequent proceedings and that the view taken by this Court in S.M. Hussain''s case 2 1985 Andh LT 24 (supra) is contrary to law.

For a better appreciation of the point to be resolved, it is necessary to refer to the relevant provisions of the Code of Criminal Procedure. The old Section 167, Cr.P.C. provided for the detention of an accused in custody for a term not exceeding 15 days on the whole. But, this was honoured more in the breach than in the observance. The Legislature felt that a drastic remedy was called for to have the desired effect, as there were serious complaints persistently that the investigations were not being completed quickly and that, in many cases, accused persons were kept in detention or remand for long period causing hardship and misery to such under-trial prisoners and their families. Therefore, the section has been amended suitably in the year 1973 and among the several changes, the new Sub-sections (5) and (6) are introduced. Sub-section (5) of Section 167, with which we are now mostly concerned, reads thus:

Section 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 of fence 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.

The provisions of this section are supplementary to Section 57 and the object is to see that the person arrested by the police is brought before a Magistrate with the least possible delay in order to enable the Magistrate to Judge, if such a person is able to make any representation in the matter. Sub-section (5) of Section 167 deals with investigation in summons cases and prescribes a time limit for continuation of investigation in summons cases and also provides for stopping of investigation after six months from the date on which the accused was arrested unless the investigating officer 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. The framers of the Code have prescribed a limit of six months'' period for completion of the investigation in summons cases from the date of arrest obviously with the aim of stopping the protracted investigation of such offences. In Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, the Supreme Court considered the mandatory nature of Section 167(5) and observed thus:

We also find from Section 167(5) of the Cr.P.C. 1973 that if in any case triable by a Magistrate as a summons case the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence, unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of the 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 under-trial prisoners are triable as summons cases and yet they are languishing in jail for a long number of years for 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 the continuation of the investigation beyond the period of six months is necessary, the Government of Bihar will release the under-trial prisoners, unless the necessary orders of the Magistrate are obtained within a period of one month from today.

The section clearly lays down that the power to permit the continuation of investigation given to the Magistrate has to be exercised before the period of six months and the Magistrate is also under obligation to stop further investigation unless he orders the continuation as provided under the section. In Jay Sankar Jha v. State 1982 Cri LJ 744 a Division Bench of the Calcutta High Court considered the scope of Section 167(5) and held that continuation of the investigation beyond the period of six months in contravention of law, is illegal and the cognizance taken by the Magistrate is bad in law and the subsequent proceeding is without jurisdiction. The learned Judges, however, in the operative portion, held thus:

For the reasons stated as above, we are of the opinion that the investigation carried on after the expiry of the period of six months was without jurisdiction and the cognizance taken on police report based upon such an investigation was bad in law. The subsequent proceeding was without jurisdiction.

(Emphasis supplied)

The learned Judges did not go to the extent of laying down that police report itself cannot be filed in a summons case if the investigation continued beyond six months without obtaining the necessary permission. What is laid down is that if the police report is based upon the material gathered during the investigation carried on after the expiry of the period of six months also, then the cognizance taken on such report is vitiated. Babulal Vs. State of Rajasthan, is a case where the accused moved an application for this discharge contending that the investigation had not been completed within six months pending the application, the charge-sheet was filed and cognizance was taken and it was contended that the Magistrate ought to have stopped the investigation because the officer making investigation had not satisfied the Magistrate that the continuation of the investigation beyond the period of six months was necessary. Ultimately, the High Court quashed the proceedings holding that the investigation conducted beyond the period of six months has to be treated illegal and no action can be taken on a charge-sheet, which has been filed in breach of Section 167(5), Cr.P.C.

A plain reading of Section 167(5), Cr.P.C. shows that the provision casts a duty on the Court to stop the investigation in a summons case, if the same is not concluded within a period of six months, unless the officer making the investigation before the expiry of the said period, satisfies that, for special reasons and in the interests of justice, the continuation of the investigation is necessary. But the important question that crops up for consideration is whether such defective or illegal or irregular investigation would automatically vitiate the trial of the case. In a number of cases, the Supreme Court and various High Courts held that, unless and until the accused shows that prejudice has been caused by the illegality or irregularity in the investigation would not vitiate the trial. In H.N. Rishbud and Inder Singh Vs. The State of Delhi, the Supreme Court held that the illegality committed in the course of the investigation would not affect the competence and jurisdiction of the court for trial and, where cognizance of the case had in fact been taken, and the case had proceeded to termination, the invalidity of the proceeding investigation would not vitiate the result, unless miscarriage of justice had been occasioned thereby. In Public Prosecutor v. K.Kanaka Rao 1969 Mad LJ (Cri) 821 : (1969) 2 An WR 449. Chinnappa Reddy, J. held thus:

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

No doubt, most of these decisions are prior to the introduction of Section 167(5) in 1973 but they do lay down general principles which remained unaltered. We shall however proceed to consider some of the decisions rendered subsequent to 1973.

In Jagannathan and Others Vs. The State, the learned single Judge of the Madras High Court has considered the scope of Section 167(5) and has also referred to the above-cited decisions. The learned Judge has distinguished the judgments of the Calcutta High Court and the Rajasthan High Court, holding, that in all these cases proceedings were quashed only after the cognizance of the offence was taken, on the ground that cognizance would not be taken on the charge-sheet filed as a result of investigation conducted beyond the period of six months. The learned Judge however, keeping in view the general principle that a defective or illegal or irregular investigation would not vitiate the trial of case held:

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 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 proceeding unless it is shown" that prejudice has been caused thereby to the accused or any miscarriage of justice has resulted thereby. Hence, with respect, I am unable to share the view taken by the learned Judges of the Calcutta High Court in the three decisions referred to above.

I am in respectful agreement with this view of the learned Judge of the Madras High Court.

Yet another question that remains to be considered is whether the investigating officer can file the charge-sheet in a summons case, even after the expiry of six months, in which investigation was not stopped, as required u/s 167(5), Cr.P.C. There should not be difficulty in filing a charge-sheet in that manner, i.e., even after the expiry of six months, provided the same is not barred by, limitation, as per Section 468, Cr.P.C. But, there may be cases where the Magistrate has not passed an order stopping investigation, land investigation might have continued without even the accused raising any (Objection. Courts have clearly held that if the ''Magistrate does not exercise the power under Sub-section (5) of Section 167 stopping the investigation, or where the accused also did not raise an objection, it cannot be presumed that the investigating officer had the implied permission to continue the investigation beyond the period of six months and file the charge-sheet within the period of limitation prescribed u/s 468, Cr.P.C. In any one of the abovementioned decisions, it is not considered whether cognizance can be taken in a summons case, on the basis of a police report filed beyond the period of six months, on the basis of the material gathered, during the investigation, up to the period of six months and also whether there are any limitations in taking cognizance of the case on such report. There may be cases where the investigation in summons cases went on for a period beyond six months, contrary to Sub-section (5) and the material gathered, during the investigation after the period of six months, may be very innocuous and immaterial.

Can it be said that merely because a part of the investigation conducted beyond six months, without the permission of the Magistrate, is illegal, taking cognizance of the case by the Magistrate on the basis of a charge-sheet filed within the period of limitation but after six months, is totally barred, and proceeding if any after taking such cognizance is vitiated? Having regard to the general principles that defective investigation does not vitiate the proceedings, the answer for this should be in the negative. Cases are not unknown, where sometimes the investigation is deliberately continued beyond six months, or where the Magistrate due to unavoidable circumstances could not exercise his power under Sub-section (5) putting an end to the investigation within the period of six months. To say, in such cases, filing of [the report is barred and that cognizance cannot be taken on the basis of such reports though filed within the period of limitation may result in miscarriage of justice. It must always be remembered that the procedural law is there only to further the ends of justice and not to frustrate the same. In this context, it must once again be noted that Section 167(5) does not prescribe any time limit for filing the charge-sheet. It only sets a deadline of six (months'' period for the completion of investigation in a summons case from the date of arrest of the accused. It is only Section 468, Cr.P.C. that prescribes the period of limitation for taking cognizance and Sub-sections, (2)(b) and (2)(c) of Section 468, Cr.P.C. also apply to summons cases and the charge-sheet can be filed within one year under Sub-section (2)(b) or within three years under Sub-section (2)(c), as the case may be. Therefore, it is clear that the limitation prescribed u/s 167(5) does not bar the filing of the charge-sheet beyond the period of six months and in such cases, viz., where the charge-sheets are filed beyond the period of six months and within the period prescribed u/s 468, the Court has to take cognizacne inasmuch as taking cognizance is not barred. No doubt, the provisions of Section 167(5) are mandatory, but the Magistrate can act upon the material gathered within the period of six months and there can be no legal impediment for such a course. In State v. Jai Bhagwan 1985 Cri LJ 932 a Division Bench of the Delhi High Court considered somewhat a similar question and held that the mere fact of investigation having continued beyond the period of six months, without the permission of the Magistrate, does not automatically nullify the continuance of the trial and that the only result in that case is that the Magistrate will only look into the material, which had been collected within a period of six months, and will ignore the other material and then decide whether to take cognizance or not. The Division Bench also further pointed out that if such a course is adopted, the question of prejudice being occasioned would not arise because cognizance would be only on the basis of investigation which had been conducted legally and within the time permitted. In arriving at such a conclusion, the Division Bench also referred to the decision of the Supreme Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi, .

A Division Bench of this Court in Public Prosecutor, A.P. High Court v. B. Anjaneyulu 1986 Cri LJ 1456 considered the scope of Section 167(5) to some extent and held:

The Police report cannot be said to be an integral part of investigation. The introduction of Section 167(5) in the Code, cannot have the effect invalidating the investigation done within the period of six months or enabling the court to stopping the filing of police report u/s 173(2). If the investigation done during the period of six months discloses an offence a police report may be founded on it and the court can take cognizance of the same.

The Division Bench referred to the judgment of the Supreme Court in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, . The Division Bench also referred to the judgment of the learned single Judge in S.M. Hussain v. State of Andhra Pradesh (1985) 2 An LT 24, (supra) and overruled the view of the single Judge that the police report u/s 173(2), Cr.P.C. is an integral part of the investigation and held that the Magistrate cannot give a direction to the police not to file the charge-sheet merely on the ground that six months had expired, after the arrest of the accused. Therefore, S.M. Hussain v. State of A.P. 1985 2 Andh LT 24 (supra) is no more good law. Hence, the order under revision passed relying on the said decision is liable to be quashed.

From the above discussion, it emerges that filing of charge-sheet is not controlled by Section 167(5). The only relevant section prescribing the period for filing charge-sheets is Section 468 (2)(b) and (2)(c) and they should be filed in accordance with these provisions. Section 167(5) cannot override Section 468. The Magistrate cannot refuse to take cognizance of the case, on the basis of the charge-sheets duly filed, as per Section 468 merely on the ground that investigation was not complete within the period of six months. In all those charge-sheets filed in accordance with Section 468, but beyond the period of six months, the Magistrates can look into the material, which had been collected within the period of six months and ignore the other material gathered beyond that period and then decide whether to take cognizance or not. By doing so, the question of any prejudice being occasioned would not arise because cognizance is taken only on the basis of the material gathered during the investigation conducted within the period prescribed u/s 167(5). For a proper exercise of power under these provisions a duty is cast on the Magistrates to periodically check the relevant register in respect of the summons cases pending and take appropriate action u/s 167(5), Cr.P.C. As" observed by the Division Bench in Public Prosecutor, A.P. High Court v. B. Anjaneyulu 1986 Cri LJ 1456 (supra), if there is undue delay in the investigation and if the accused is so aggrieved it is always open to him to move the High Court for quashing the proceedings.

Now coming to the facts of the instant case, the occurrence is said to have taken place on 13-7-1983. The allegation is that the accused drove the lorry in a rash and negligent manner and dashed against a parked lorry which resulted in the death of two persons. The learned Magistrate, relying on a decision of the learned single Judge of this Court in S.M. Hussain''s case (1985) 2 Andh LT 24 (supra) discharged the accused. The said decision is overruled by the Division Bench in Public Prosecutor, A.P. High Court v. B. Anjaneyulu 1986 Cri LJ 1456. Therefore, the order of the learned Magistrate is quashed and he is directed to proceed with the trial of the case in accordance with law. The Criminal revision case is accordingly allowed.