The investigation carried on after the expiry of the period of six months without the satisfaction of the Magistrate as required by S. 167(5) Cr. P.C. is without jurisdiction and the cognizance taken on a police report based on such an investigation is bad in law.

S. N. Sanyal, J :–This revisional application is at the instance of the petitioner Jay Sankar Jha against whom a proceeding being Case No. G.R 572 of 1977 under Ss. 279 and 338 of Indian Penal Code and Ss. 86(a)(b) and 118A of the Motor Vehicles Act is pending before the learned Metropolitan Magistrate, Third Court, Calcutta. The petitioner was arrested on September 3, 1976 in connection with that case. The petitioner was granted bail by the learned Chief Metropolitan Magistrate, Calcutta on September 4, 1976. The police prayed for time on different dates for completing the investigation and challan was submitted against the petitioner on June 27, 1977. The learned Chief Metropolitan Magistrate took, cognizance and transferred the case to Metropolitan Magistrate. Third Court. The case was triable as a summons case and the learned Magistrate proceeded with the trial in course of which eight prosecution witnesses were examined. The accused thereafter filed an application under S. 167(5) of the Code of Criminal Procedure contending that there was violation of the mandatory provision of S. 167(5) Cr. P.C. as the investigation was not completed within six months from the date of arrest and the challan was submitted beyond the statutory period without seeking any permission from the Magistrate. The accused contended that the cognizance taken was bad in law and further continuance of the case was an abuse of the process of Court. The prayer of the accused was that further proceeding should be stopped and the accused should be acquitted.

2. The learned Magistrate rejected the application on the ground that cognizance was taken by the learned Chief Metropolitan Magistrate and it was not within his competence to challenge the order of the learned Chief Metropolitan Magistrate as he could not sit in judgment over the order of the learned Chief Metropolitan Magistrate.

3. The accused has come up before this Court in revision for quashing the proceeding. The learned Advocate for the petitioner has contended that cognizance taken was bad in law and the subsequent proceeding thus became illegal and an abuse of the process of Court. The mere fact that the petitioner did not raise the objection earlier cannot deprive him of the right granted by law. It has been further contended that the record does not show that before the expiry of the period of six months from the date of arrest of the accused any attempt was made by the officer making the investigation to satisfy the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months was necessary. The contention of the learned Advocate for the petitioner is that in the instant case the Magistrate was obligated to make an order stopping further investigation as required by the mandatory provisions of S. 167(5) of the Code of Criminal Procedure. In support of his contention the learned Advocate for the petitioner has referred to the case of Ram Kumar Keshari v. The State, reported in 1981 Criminal Law Journal 1288.

4. There is no dispute that the accused Jay Sankar Jha was arrested on September 3, 1976 in connection with the instant case which admittedly is a case triable by a Magistrate as a summons case. The investigation of the case was not concluded within a period of six months from the date of arrest. The challan was submitted on June 27, 1977 and the learned Chief Metropolitan Magistrate took cognizance on that date. In view of S. 167 (5) Cr. P.C. the investigation beyond the period of six months can be continued only if 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. This satisfaction of the Magistrate must take place before the expiry of the period of six months. In order to see whether any such satisfaction was there it will be necessary to consider