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High Court Of Allahabad
S. K. Kaul, J.
Bajmuddin Alias Miyan : Appellant
Versus
State Of U.P. : Respondent
Criminal Misc. Case No. 520 of 1981
Decided On : May 13, 1982
CRIMINAL PROCEDURE CODE - SECTION 167(5) - INVESTIGATION NOT COMPLETED WITHIN SIX MONTHS - COGNIZANCE BY MAGISTRATE - NOT BARRED - SECTION 190, 195, 468 - INTERPRETATION - HARMONIOUS CONSTRUCTION - DELAY IN INVESTIGATION - NOT A BAR TO TAKING COGNIZANCE - SECTION 167(6) - APPLICATION TO SESSIONS JUDGE FOR CONTINUATION OF INVESTIGATION - PURPOSE - SECTION 169, 178 - FINAL REPORT OR CHARGE SHEET - SUBMISSION TO MAGISTRATE - MAGISTRATE'S POWER TO ACT - SECTION 190 - DUTY OF INVESTIGATING OFFICERS TO FINISH INVESTIGATION WITHIN SIX MONTHS - ADJOURNMENTS TO PRODUCE PROSECUTION EVIDENCE - DISCRETION OF MAGISTRATE - COERCIVE MEASURES TO COMPEL WITNESSES TO ATTEND COURT - INCHARGE MAGISTRATE - POWER TO TAKE COGNIZANCE ON CHARGE SHEET - JOINT TRIAL - SEPARATION OF TRIALS - PREJUDICE TO ACCUSED - MAGISTRATE'S DISCRETION.
Fact of the Case:
Petitioners challenged the proceedings pending against them in the Magistrate's Court under Section 60 of the Excise Act on the grounds that the investigation was not completed within six months as required by Section 167(5) CrPC, that there were excessive adjournments for prosecution evidence, that the Incharge Chief Judicial Magistrate took cognizance of the charge sheet during the absence of the Chief Judicial Magistrate, and that the trial of the petitioners was improper as the recovery of liquor bottles from their individual possession should have resulted in separate charge sheets.
Finding of the Court:
The court held that the delay in investigation beyond six months without obtaining permission from the Magistrate did not bar the Magistrate from taking cognizance on the charge sheet. The court emphasized the duty of investigating officers to finish the investigation within six months and obtain permission for continuation if necessary. The court also directed the trial court to conclude the trial by the end of August 1982 and warned of potential interference if the process was abused.
Issues: 1. Whether the Magistrate could take cognizance of the complaint based on an investigation not completed within six months without permission from the Magistrate under Section 167(5) CrPC? 2. Whether the Magistrate's grant of adjournments for prosecution evidence amounted to harassment of the accused? 3. Whether the Incharge Chief Judicial Magistrate had the power to take cognizance of the charge sheet during the absence of the Chief Judicial Magistrate? 4. Whether the trial of the petitioners should have been separated due to the recovery of liquor bottles from their individual possession?
Ratio Decidendi: 1. Section 167(5) CrPC should be interpreted harmoniously with Sections 190, 195, and 468 CrPC. The absence of a specific bar in Section 190 or 195 CrPC against taking cognizance based on delayed investigation indicates that the Legislature did not intend to bar cognizance solely due to such delay. 2. The scheme of the Act requires the investigating officer to submit a final report or charge sheet to the Magistrate, who then acts upon it under Section 190 CrPC. This emphasizes the Magistrate's ultimate authority to take cognizance, irrespective of the police's opinion. 3. The purpose of Section 167(6) CrPC, which allows an application to the Sessions Judge for continuation of investigation, is to expedite the hearing of cases, not to bar cognizance in cases of delayed investigation. 4. Investigating officers should strive to complete the investigation within six months and obtain permission if necessary. 5. Magistrates should exercise discretion in granting adjournments for prosecution evidence and take coercive measures to compel witnesses to attend court. 6. Incharge Magistrates have the power to take cognizance on charge sheets. 7. The Magistrate should consider the potential prejudice to the accused when deciding whether to separate joint trials.
Final Decision: The petition was dismissed. The stay order was vacated, and the trial court was directed to conclude the trial by the end of August 1982.
S. K. Kaul, J.
1. THIS is a petition u/Sec. 482 CrPC with a prayer that the proceedings pending in the Court of the Magistrate u/Sec. 60 Excise Act may be quashed on the following grounds :-
(1) That the investigation in this case was not finished within six months as provided by sub-section (5) of Section 167 CrPC and since no permission of the Magistrate was obtained by the I. O. to continue investigation, the Magistrate could not have taken cognizance of the complaint moved before him on the basis of this investigation.
(2) The second ground was that more than ten hearings took place for adducing prosecution evidence. The prosecution evidence were not given with the result that the accused was being harrassed and as such proceedings should be dropped.
(3) The third ground was that Chief Judicial Magistrate concerned was on leave when the charge sheet was submitted. The Incharge Chief Judicial Magistrate should not have taken cognizance of the charge sheet and as such the cognizance in this case was not legal.
(4) The last point was that the trial of the two petitioners was not proper in as much as the recovery of bottles of liquor from their individual possession was a separate offence so far as they are concerned and as such separate charge sheets should have been filed.
2. I have heard the learned counsel for the parties. In my view this petition has no force.
So far as the first ground is concerned, sub-section (5) of Section 167 runs thus:
"If in any case trial 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 in the interests of justice the continuation of the investigation beyond the period of six months is necessary."
Sub-section (6) of Section 167 CrPC reads as follows :
"Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application to him otherwise, that further investigation into the offence sought to be made vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify."
3. THESE two sub-sections of Section 167 CrPC have to be read along with Sections 190, 195 and 468 of the Code of Criminal Procedure. Section 190 provides in what matters a Magistrate can take cognizance. Section 195 deals with the bar created in the way of the Court to take cognizance. Section 468 lays down that limitation in offences punishable with imprisonment for a term not exceeding one year, is one year for taking cognizance of such offences.
4. THE rule of interpretation is that the provisions of a statute should be interpreted in a harmonious manner so that there should be no clash between interpreting one provision in relation to the other. If the intention of the Legislature was that in cases where investigation is not finished within six months, the Magistrate should not take cognizance on a police report, some such words should have been added either in Section 190 or 195 CrPC. After all, when a bar is to be put in the way of a Court taking cognizance and when there is a specific provision like Section 195 CrPC which comes subsequent to Section 167 CrPC there was nothing to stop the legislature in mentioning a sub-section or a clause to this Section 195 CrPC that in cases where investigation was not concluded within a period of six months and when permission was not obtained from the Magistrate to continue investigation, cognizance by a Magistrate on a police report which is in the shape of charge sheet will be barred. Indeed, the limitation clause says that a charge sheet could be submitted in cases under Section 60 Excise Act within one year from the date of the offence. That would sugges
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