Himachal Pradesh High Court
State Of H.P. vs Rehmat Ali on 22 July, 1999
Equivalent citations: 2000CRILJ675
Author: M.R. Verma
Bench: M.R. Verma
JUDGMENT M.R. Verma, J.
1. This appeal has been preferred by the State against the judgment dated 3-5-1995 passed by the learned Sessions Judge, Sirmaur whereby the judgment dated 14-12-1993 passed by the learned Sub Divisional Judicial Magistrate (1), Paonta Sahib convicting the accused-respondent (hereinafter referred to as 'the accused') under Sections 279 and 304-A of the Indian Penal Code and sentencing him to suffer simple imprisonment for six months and to pay fine in the sum of Rs. 2000/- under Section 304-A, I.P.C. and in default of payment of fine to suffer further simple imprisonment for hone month and to pay fine of Rs. 500/- under Section 279 of the Indian Penal Code and in default of payment of fine to suffer simple imprisonment for one month, has been set aside.
2. Case of the prosecution, in brief, is that on 14-8-1989 at 9.45p.m. H.C.Chaman Lal and Constable Mahal Singh of Police Station Paonta were detailed for patrol duty by H.C. Baldev Singh. All these three police officials thereafter went towards Badripur in Mini Bus No. HIN-57 which was driven by the accused. At 10 p.m. the patrol party reached at the house of one Surjit Singh at Badripur who offered liquor to H.C.Baldev Singh and the accused. Both of them consumed two bottles of Una No. 1. Thereafter accused asked said Surjit Singh to provide more liquor and thus one half of Una No. 1 was brought by him and that too was consumed by the accused and H.C. Baldev Singh. These two police officials persuaded H. C. Chaman Lal and Constable Mahal Singh to share the liquor but they refused to do so. Thereafter accused and Baldev Singh asked H.C. Chaman Lal and Constable Mahal Singh to return to Paonta. The party then started their journey in the same bus back to Paonta. Thus bus was driven by the accused who was not able to drive the vehicle properly because he was under the influence of liquor. When they have travelled a distance of about 1/2 a kilometer the bus fell down in a pit as a consequence of the rash and negligent driving by the accused. H. C. Baldev Singh was crushed to death on the spot. After investigation in the matter the accused was challaned for the commission of the offence punishable under Sections 279 and 304-A of the Indian Penal Code. He came to be tried by the learned Sub Divisional Judicial Magistrate (I), Paonta Sahib who convicted and sentenced him as aforesaid vide his judgment dated 14-12-1993. Feeling aggrieved the accused preferred an appeal which was heard and decided by the learned Sessions Judge, Sirmaur at Nahan who by the impugned judgment set aside the conviction and sentence and acquitted the accused. Hence, the present appeal.
3. I have heard the learned Additional Advocate General and the learned counsel for the accused.
4. It is not disputed that the accused was arrested on 15-8-1989 and the charge-sheet was presented in the concerned Court on 22-11-1990. The offences alleged to have been committed by the accused are punishable under Sections 279 and 304-A of the Indian Penal Code. Therefore, the case against him is triable as a summons case. However, as seen above the investigation in the case was not completed and charge-sheet was not submitted within six months, nor the permission/order was obtained from the concerned Magistrate for continuation of investigation beyond six months from the date of arrest of the accused as required under Section 167(5) of the Code of Criminal Procedure.
5. Against the aforesaid admitted background of the case the learned Sessions Judge held "that the investigation which was carried on in the instant case after the expiry of the six months was wholly without jurisdiction and the cognizance so taken on the police report based on such an investigation, was bad in law, which has vitiated the entire trial which commenced before the Court below." As a consequence of this conclusion the conviction of and sentence awarded to the accused was set aside and he was acquitted.
6. The only question, which therefore arises for determination in this appeal is whether the learned Sessions Judge is right in holding that infringement of the provisions of Section 167(5) of the Code of Criminal Procedure has vitiated the trial or he has mis-construed the relevant provisions of law and thus has arrived at a wrong conclusion.
7. Section 167(5) of the Code of Criminal Procedure reads as under :
(5) If in any case triable by 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
8. A plain reading of the above provisions make it clear that it makes obligatory on the part of the Magistrate to whom the F.I.R. in a summons case has been forwarded, to stop "further investigation" in a summons case, if the investigation is not completed within six months from the date of arrest of the accused. However, if the Investigating Officer satisfies the said Magistrate that for special reasons and in the interests of justice the continuation of investigation beyond the prescribed period of six months is necessary he may not stop 'further investigation.'
9. A situation may arise, as in this case, that despite expiry of the prescribed period, the Magistrate did not pass order stopping 'further investigation', nor he was approached and satisfied by the Investigation Officer that for any special reason and in the interest of justice the continuation of investigation was necessary and thus the investigation continued. In such a situation what will be the effect on the case.
10. Non passing of the order stopping investigation in such a situation will not amount to implied permission to continue the investigation beyond the prescribed period for the simple reason that negligence or inaction on the part of the Magistrate cannot be substituted for what he can do only after being satisfied for special reasons and in the interest of justice that too if found necessary. Thus, the lapse committed is not curable. The infringement of the provisions of Section 167(5), will, therefore, have its legal consequences.
11. The material question which now calls for determination is as to what will be the legal consequences of such infringement.
12. Section 167(5) of the Code of Criminal Procedure empowers the Magistrate, in a case where the investigation is not completed in a summons case within six months from the date of arrest of the accused and time is not extended within the framework of the said section, to stop 'further investigation' into the offence. The use of words 'further investigation' in the Section is of vital importance. If the further investigation is stopped, that does not necessarily mean that the case stood cancelled or the order stopping further investigation will amount to 'acquittal' or 'discharge' of the accused. Had the Legislature intended such consequences to follow, such intention could be expressed by adequate provisions in the sectionitself.
13. To substantiate what I have said hereinabove, a reference may be made to the provisions of Section 258 of the Code of Criminal Procedure which provides of stopping of proceedings in certain cases and reads as follows :
258. Power to stop proceedings in certain cases :--
In any summons case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.
14. As is evident from the bare perusal of the above provision while empowering the Judicial Magistrate to stop the proceedings in any summons case at any stage within the scope of the section the Legislature expressly provided the consequences of stopping of the proceedings. This has not been so provided under Section 167(5) of the Code of Criminal Procedure which contemplates the stopping of 'further investigation' leaving the result thereof to be governed by other provisions of law.
15. It may be pointed out here that once a F.I.R. has come into being under Section 154, Cr.P.C.the final action is required to be taken therein by the investigating agency under the provisions of Sections 169, 170 and 173 of the Code of Criminal Procedure. On such action haying been taken, the concerned Magistrate will either cancel the case or proceed to commit or try the case. Therefore, even in a case wherein 'further investigation', may have been stopped under Section 167(5), Cr.P.C, recourse to Sections 169, 170 and 173 ibid will have to be taken and the 'stopping' of "further investigation" in the absence of expressly specified consequences will not amount to cancellation of the case, nor can such stoppage be deemed to be an order of acquittal or discharge of the accused.
16. To act under Sections 169, 170 and 173 of the Code of Criminal Procedure the investigating agency in a case where 'further investigation' has been stopped will have to examine the material collected by it within the time prescribed under Section 167(5) of the Cr.P.C. and find out for itself whether a final report for cancellation of the case or a charge-sheet with a prayer for trial of the accused is to be submitted. In case the material collected by the police within the prescribed period of six months of the arrest of the accused is sufficient to proceed against the accused a charge-sheet with a prayer for his trial will have to be submitted under Section 173, Cr.P.C. and in view of there being material he will have to be tried for the offence alleged to have been committed by him. The order stopping further investigation shall not operate as a bar for trial of the accused for the reason that the period of six months prescribed for completion of investigation under Section 167(5) of Cr.P.C. is not the period of limitation for presentation of a charge-sheet which will bar taking of cognizance of the offence by the concerned Court but is the period in which investigation in a case triable as a summons case is expected to be concluded. In fact the Court will be barred from taking cognizance of an offence on the ground of limitation only under Section 468 of the Code of Criminal Procedure.
17. Thus, the result of the stopping of further investigation under Section 167(5) will be that thereafter the investigating agency will not be in a position to collect any further material/evidence but can depend on the material already collected to decide its further course of action. If it proceeds to collect 'further evidence' after such order, that will be an illegal exercise, and, therefore, it will not be permissible to the prosecution to take advantage of the material/evidence so collected.
18. The corollary, therefore, is that when in a case where the Magistrate failed to stop further investigation and the Investigating Officer continued the investigation after the period of six months without the permission of the Magistrate, the material collected after expiry of the prescribed period of six months is on the same footing as the evidence collected after the passing of an order stopping further investigation, that is to say that such evidence must be ignored as inadmissible for all purposes. However, the material/evidence collected within the prescribed period of six months will have to be taken into account.
19. It must, therefore, follow that the legal consequences of infringement of the provisions of Section 167(5) of the Cr.P.C. will not vitiate the entire trial but the evidence collected beyond the prescribed period of six months shall only be rendered inadmissible. This view is supportable on the basis of a few judgments of other High Courts also.
20. In case State of Punjab v. Amar Singh, 1992 Cri LJ 1000 a Division Bench of the High Court of Punjab and Haryana has held as under
6... the Legislature in its wisdom has barred the continuation of the investigation after the expiry of period of six months from the date of arrest of the accused. There is no indication, direct or indirect therefrom that the investigation already conducted within the period of six months would also stand vitiated or that the continuation of the investigation beyond the period of six months in summons cases would vitiate the entire trial or result in acquittal of the accused. In other words, it can be well said that the evidence collected during the investigation beyond the period of six months would be rendered inadmissible by these provisions and not the evidence which was collected earlier by the investigation. Moreover, the Magistrate has been given the powers to extend the period of investigation under the circumstances of a particular case. Under Sub-section (6) of this Section, the Sessions Judge has been invested with the powers to review such order of the Magistrate. Thus, the perusal of the provisions of Sub-section (5) also provides an oblique indication that the Legislature have struck a balance between justifiable protracted investigation and the investigation unnecessarily delayed beyond a period of six months in summons cases. Consequently, by no stretch of imagination, it can be held that the violation of the provisions of Section 167(5) of the Code would result in vitiating the entire trial.
Similar view has been taken in a good number of cases and a few of them are Hanuman Box Agarwalla v. Girish Chandra Gogoi (1990) 2 Crimes 317 (Gauhati), D. Kumar v. State of Karnataka, 1985 Cri LJ 1347 (Kant), and State v. Jai Bhagwan, 1985 Cri LJ 932 (Delhi).
21. In view of the above, the learned Sessions Judge has committed an error in concluding that infringement of the provisions of Section 167(5), Cr.P.C. has vitiated the entire trial in this case. The impugned judgment oRacquittal entirely based on this conclusion, therefore, cannot be sustained.
22. It may be pointed out there that the learned Sessions Judge has set aside the judgment of the learned trial Magistrate only on technical ground and has not discussed and decided anything on factual aspects and merit on the basis of evidence on record. A perusal of the evidence on record reveals that most of the evidence produced at the trial had been collected within six months of the arrest of the accused. Therefore, the appeal before him was to be decided on merits.
23. Though sufficient time has elapsed from the date of occurrence/arrest of the accused who was released on bail immediately after the arrest, but in the facts and circumstances of the case it will be expedient and in the interest of justice if the matter is decided on its own merits keeping in view of the delay factor.
24. For all the reasons stated hereinabove, this appeal is accepted and the impugned judgment acquitting the accused is set aside. The learned Sessions Judge will readmit the appeal against its old number and date and dispose of it afresh in view of the observations made hereinbefore. Records of the case be returned to the learned Sessions Judge forthwith. Parties are directed to appear before the learned Sessions Judge on 28-8-1999.