A, an accused is being tried by a Magistrate in a summons case. The investigation is not concluded within six months from the date on which the accused was arrested. The concerned Magistrate passes an order under Section 167(5), Cr. P.C. to stop the further investigation………………… Can the Sessions Judge of the same sessions division vacate the order of the concerned Magistrate passing the order of stopping further investigation?

Question: A, an accused is being tried by a Magistrate in a summons case. The investigation is not concluded within six months from the date on which the accused was arrested. The concerned Magistrate passes an order under Section 167(5), CrPC to stop the further investigation and discharges the accused while the officer conducting the investigation satisfies the Magistrate that for special reasons and for the ends of justice, the investigation requires to be continued beyond the period of six months.

Can the Sessions Judge of the same sessions division vacate the order of the concerned Magistrate passing the order of stopping further investigation? If so, under which provision of law can the Sessions Judge do so?

Find the answer only on Legal Bites. [A, an accused is being tried by a Magistrate in a summons case. The investigation is not concluded within six months from the date on which the accused was arrested. The concerned Magistrate passes an order under Section 167(5), CrPC to stop the further investigation………………… Can the Sessions Judge of the same sessions division vacate the order of the concerned Magistrate passing the order of stopping further investigation?]

Answer

Section 167(5) of the Criminal Procedure Code provides that-

If in any case triable by a Magistrate as a summons-case, if 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 or special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.

Section 167(5) CrPC ensures that in all cases triable by Magistrate as summons case, where an investigation is not completed within six months of arrest, the Magistrate shall order stopping further investigation unless there are special reasons for doing so in the interest of justice.

The purpose behind enacting Section 167(5) of the Code undoubtedly was to prevent the undesirable prolonging of the agony of an accused facing a criminal case seriously prejudicing his right to personal liberty. In its wisdom the legislature, while being conscious of the right of every person under Article 21 of the Constitution of India thought it fit and desirable to enact a salutary provision, such as Section 167(5) of the Code for providing a mechanism so as to prevent the unnecessary and undesirable prolongation of the agony of a person facing a criminal case for an indefinite period.

In the case of Saktisadhan Maji & Ors. v. State reported in 1994 C Cr Law Reporter (Cal) 137, the Special Bench was of the opinion that cognizance of the offence and the trial of an accused on the basis of investigation carried on and charge sheet submitted beyond the period of six months without any specific order from the Magistrate was unfair and void.

This Bench also took a view that without a specific order from the Magistrate for the continuation of the investigation beyond six months, the accused immediately at the expiry of six months acquired a right to be discharged from the case if the investigation was not completed and concluded within the period of six months. The Special Bench also was of the view and opinion that any cognizance or trial for an offence on the basis of investigation continued and charge-sheet filed beyond the period of six months, without an appropriate order from the Magistrate under Section 167(5) of the Code must be held as illegal and void on the ground of failure of justice. This special Bench, therefore, clearly formed the following opinions:

• once the investigation is not completed within six months from the date of the arrest of the accused, unless the Magistrate passes a specific order in terms of section 107(5) of the Code, it comes to an automatic halt;
• and the accused, on the expiry of six months period, automatically would stand discharged from the case.

In other words, the Special Bench was of the opinion, (by implication) that there is no need for the Magistrate nor was there any requirement of law, in terms of Section 167(5) of the Code, for the Magistrate to pass any specific order stopping investigation or to make any judicial order discharging the accused and that the discharge of the accused was automatic in such an eventuality.

The Supreme Court also in paragraph 7 of the decision in the State of West Bengal v. Falguni Dutta (1993 SCC (3) 288) observed:

“…..Therefore, the Special Court can stop further investigation into the offence if the investigation is not concluded within a period of six months from the day of the arrest of the accused person unless for special reasons and in the interests of justice the continuation of the investigation beyond that period is necessary. In the present case, the officer making the investigation had not sought the permission of the Special Court to continue with the investigation even after the expiry of six months. The object of this sub-section clearly is to ensure the prompt investigation into an offence triable as summons-case to avoid hardship and harassment to the accused person.”

In paragraph 8 of the said decision, the Supreme Court made the following observations:–

That takes us to the next question whether the special court can besides directing stoppage of investigation, entertain and act on a charge-sheet or a police report submitted under section 173(2) of the Code in such cases. The expression ‘police report’ has been defined under the Code to mean a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173 section 2(r). Section 173 lays down that every investigation under Chapter XII shall be completed without unnecessary delay and as soon as it is completed the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government.

It will thus be seen that the police report under section 173(2) has to be submitted as soon as the investigation is complete. Now, if the investigation has been stopped on the expiry of six months or the extended period, if may, by the Magistrate in the exercise of the power conferred by sub-section (5) of section 167 of the Code, the investigation comes to an end and, therefore, on the completion of the investigation section 173(2) enjoins upon the officer-in-charge of the police station to forward a report in the prescribed form.

There is nothing in sub-section (5) of section 167 to suggest that if the investigation has not been completed within the period allowed by that sub-section, the officer-in-charge of the police station will be absolved from the responsibility of filing the police report under section 173(2) of the Code on the stoppage of the investigation.

Moreover, section 167(6) clearly states-

where any order stopping a further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought 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.

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