Utpalendu Mahato vs State and Another

Ajit Kumar Sengupta, J.—Having been found guilty of the offence u/s 304A of the Indian Penal Code, the petitioner was convicted and sentenced by the Chief Judicial Magistrate, Malda, to suffer rigorous imprisonment for two years and to pay a fine of Rs. 2,000/- in default, to suffer rigorous imprisonment for six months. The appeal preferred against the said conviction and sentence was dismissed by the learned Sessions Judge, Malda. This revisional application is directed against the said appellate order.

At the hearing Mr. S.S. Roy, learned counsel for the, petitioner has urged that the entire proceedings before the courts below are vitiated in view of non compliance with the mandatory provisions of section 167(5) and 167(6) of the Code of Criminal Procedure.

The contention about the invalidity of the proceeding was taken for the first time before the appellate court. The attention of the appellate court was drawn to the single bench decision of this Court in Ali Hossain v. State of West Bengali, reported in 83 CWN 559 where the learned Judge observed that if the case triable according to the summons procedure is not completed within six months in terms of section 167(5) of the Code of Criminal Procedure, it is the duty of the Investigating. Officer to apply before the Magistrate before the expiry of the said period for extension of time. That having not been done, the chagesheet submitted after the expiry of the period of six months, would render the proceedings without jurisdiction. The learned Magistrate had no jurisdiction to take cognizance on such chargesheet. The learned Sessions Judge after referring to the said decision held that since no objection was raised by the accused on the very day the chargesheet was submitted against him beyond the period of six months praying that the chargesheet that was submitted should not be taken notice of nor should the cognizance be taken thereupon having regard to the provision of section 167(5) of the Criminal Procedure Code, the accused at the appellate stage could not urge that ground. Secondly, irregularity of taking cognizance against the accused is a mere irregularity which does not vitiate the proceeding in view of the provision of section 460 of the Criminal Procedure Code.

In our view, the Id. Sessions Judge fell in error in holding hat non-compliance with the provisions of section 167(5) of the Code of Criminal Procedure is a mere irregularity which can be cured u/s 460 Cr. P.C. One of the objects sought to be achieved by Section -167 is to avoid delay in investigation and trial while ensuring fair trial to the accused. Section 167(5) of Code of Criminal Procedure was enacted to avoid delay in investigation which would be prejudicial not only to the individual but also to the society. In many cases under trials have to languish in detention even though accused of minor offence triable as summons case. If investigation is allowed to continue beyond the period of six months specified u/s 167(5) of the Code of Criminal Procedure in the absence of special reasons and interest of justice, accused may still be in detention if he is unable to furnish bail. Where an investigation is in breach of the provision of section 167(5) subsequent proceeding would be bad if the Id. Magistrate has not taken step which he is bound to take under that section.

If the investigation could not be completed within six months of the arrest of the accused in summons cases, the Police could seek the permission of the Magistrate to continue the investigation and if it was refused, then to seek such permission from the Court of Sessions and if such permission is refused, then on the basis of investigation so far made to submit a report u/s 169 or Section 179 Cr. P.C. If the Magistrate is satisfied that there is a case he can take cognizance or drop the proceeding it no offence is made out. If the Police continues investigation without such permission, it would be in breach of the mandatory provision u/s 167(5) and Magistrate and should discharge the accused.

Section 167(5) is mandatory in character and it is the duty enjoined upon the Magistrate by law to see that no investigation is continued in a summons case beyond six months from the date of arrest of the accused without obtaining his permission. Even such permission cannot be given in a routine manner. The Magistrate has to satisfy himself that for special reasons and in the interest of justice continuance of investigation beyond a period of six months is absolutely necessary. If the investigating officer does not satisfy the Magistrate as to why the proceedings would continue beyond six months and his permission is not obtained after placing relevant materials but the investigation nonetheless is continued, such investigation would be illegal. All steps and proceedings taken in furtherance of the said investigation would also be rendered invalid. The continuation of the investigation u/s 167(5) after the statutory period will be without jurisdiction and the Id. Magistrate also acts without jurisdiction taking cognizance and continuing the proceeding on the basis of the charge sheet filed after the statutory period. If the Id. Magistrate does not stop investigation and allows it to continue, he acts without jurisdiction. Section 460 of the Code of Criminal procedure cannot be pressed in aid for empowering the Id. Magistrate to continue the proceedings in breach of the mandatory provision of section 167(5). As a conviction for a charge not framed is an illegality and not a curable irregularity, so is a conviction based on a chargesheet filed in violation of the mandatory provision of Section 167(5) of the Criminal Procedure Code.

In the instant case, as it appears from the lower court records, that Gazole P.S. Case No. 14 dated 21/3/76 was started against the accused under sections 279/304 of the. Indian Penal Code on the basis of the FIR lodged with the said Police Station. It also appears from the records that the investigation of the said case was taken up on that very day. If further appears from the record that the present petitioner was produced before the Magistrate on 22.3.76. The chargesheet dated 19.11.76 was received by the Magistrate concerned on 6.12.76. It is absolutely clear that more than six months passed between the date of the arrest of the accused and the submission of the chargesheet. The records do not disclose that Magistrate concerned made any order stopping further investigation in the offence on the expiry of six months from the date of arrest of the accused. There is also no prayer of the Investigating Officer before the Magistrate for extension of the said period. No prayer u/s 167(6) of the Criminal Procedure Code appears to have been made before the Sessions Judge concerned. In our view, on these facts the proceedings have to be quashed.

The other ground of the learned Sessions Judge is that the accused having submitted to the jurisdiction by not raising any objection on the very day the chargesheet was submitted, cannot turn round and object to the continuance of the proceeding. This view is also erroneous as we said that non compliance with the mandatory provision of section 167(5) of the Criminal Procedure Code will render the chargesheet without jurisdiction and no cognizance could be taken on such chargesheet and, accordingly, the proceeding continued in furtherance of such chargesheet must be held to be bad. It is not a mere irregularity. It is a question of jurisdiction which goes to the root of the matter. It is a nullity as the proceeding has been taken without any foundation for it. The provision of Section 167(5) of the Criminal Procedure Code is not merely a regulator procedure. It confers jurisdiction on the authority to continue or not to continue a proceeding. This mandatory provision is enacted on the ground of public interest and public policy. The jurisdiction could neither be waived nor created by consent. That apart when the proceeding is without jurisdiction, the orders passed thereon would be nullity and this would be so whether the accused raises any objection or not The objection in such a case can be taken at any stage of the proceeding. Even otherwise the appeal is a continuation of the original proceeding when such objection can be taken. In our view, it is immaterial at which stage objection to the jurisdiction is taken.

In Jay Shankar Jha Vs. The State, the Division bench of this Court held as follows: The next question for consideration is whether the accused having not raised the objection immediately on the expiry of the period of six months entitled to raise the objection now, specially when as many as either prosecution witnesses have been examined, unless he shows that he has been prejudiced by the continuation of investigation beyond the period of six months. In our opinion no such contention can prevail in view of the specific provisions of Section 167(5) of the Criminal Procedure Code. The accused was not required to raise any such objection as the obligation was upon the Magistrate to stop further investigation. The illegality remained a 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.

For the reasons aforesaid, we are of the view that the proceedings culminating in the conviction and sentence of the petitioner must be held to be without jurisdiction and, accordingly, quashed. The sentence and conviction of the accused is, therefore, set aside. The petitioner is discharged from bail bond.

This Rule is thus made absolute.

J.N. Hore, J.

I agree.