Filing of the chargesheet under section 173 is not a part of actual investigation which does not conclude until the filing.

( 1 ) THIS revisional application is directed against the appellate order dated July 19, 1983 passed by the learned Sessions Judge, Andaman and Nicobar Islands in Criminal Appeal No. 22 of 1982. By the order impugned the learned Sessions Judge has affirmed an order dated October 5, 1982 of conviction under section 304a and section 279 of the Indian Penal Code passed by the learned Judicial Magistrate, 1st Class, Mayabundar in G. R. Case No. 276 of 1978. The accused is the petitioner before us in this revisional application.

( 2 ) ACCORDING to the prosecution, the accused petitioner while driving a motor truck on July 12, 1978 at 10. 30 A. M. ran over a boy named Tannis Dung Dung aged about 9 years at Bijdera on his way, from Panchbati to Rangat. The boy died instantaneously. Such death according to the prosecution was due to rash and negligent driving on the part of the accused petitioner. The petitioner was arrested on the same day and on completion of investigation the police drew up the chargesheet on September 13, 1978. That chargesheet, however, was not filed before the learned Magistrate earlier than April 9, 1979 on which date the learned Magistrate took cognizance. At the trial the prosecution adduced evidence including the evidence of certain eye witnesses and the learned Magistrate convicted the accused petitioner under both sections and sentenced him to undergo rigorous imprisonment for six months. In doing so the learned Magistrate recorded a finding to the effect that the prosecution had duly proved the commission of the offence by the accused petitioner as he was charged for. The accused petitioner preferred an appeal but the learned Sessions Judge in dismissing the appeal upheld the order of conviction and sentence. Hence the present revisional application.

( 3 ) MR. Sardul Singh appearing in support of this revisional application has raised three points. In the first place, he has contended that the chargesheet having been filed beyond 180 days from the date of arrest the learned Magistrate could not have taken cognizance on such a chargesheet in view of section 167 (5) of the Code of Criminal Procedure and the entire trial hased on such cognizance is liable to be set aside. Reliance has been placed on the decisions in the cases of Ram Kumar v. The State, Jay Shankar Jha v. The State and Ram Biksh Jadah v. The State of West Bengal and Ors, Secondly. It has been contended by Mr. Singh that on the evidence adduced the learned Magistrate should have held that the death was entirely accidental and was not due to any rash and negligent act on the part of the accused petitioner. Lastly reliance has been placed by Mr. Singh on section 360 of the Code of Criminal Procedure in contending that in any event considering the fact that this was the first offence committed the accused petitioner should have been released of Probation of Good Conduct.

( 4 ) THE learned Public Prosecutor, appearing on behalf of the State, has strongly contested the first and the second points raised by Mr. Singh. In his usual fairness the learned Public Prosecutor has left the third point raised by Mr. Singh to the discretion of this Court. In contesting the first point it has been contended by the learned Public Prosecutor that in this case investigation was completed, well within 180 days from the date of arrest when the chargesheet was drawn up on September 10, 1978 and hence there was no breach of section 167 (5) of the Code of Criminal Procedure- He has conceded that there was some delay in the matter of actual filing of to chargesheet before the learned Magistrate. But that according to him would not constitute infringement of section 167 (5) of the Code of Criminal Procedure. So far as the second point raised by Mr. Singh is concerned, it has been contended by the learned Public Prosecutor that same raises a _question of fact and in view of concurrent findings of the two courts below this court should not interfere wi