A, an accused is aggrieved by the order passed under Section 167(5), not to stop further investigation even when the investigation was not concluded within six months from the date on which he was arrested… Can the Sessions Judge entertain the petition filed by A?

Question: A, an accused is aggrieved by the order passed under Section 167(5), not to stop further investigation even when the investigation was not concluded within six months from the date on which he was arrested.

Being aggrieved by the order of the magistrate, he (A) does not file any application before the Magistrate and directly files an application before the Sessions Judge to vacate the order of the magistrate. Can the Sessions Judge entertain the petition filed by A?

Find the answer to the mains question only on Legal Bites. [A, an accused is aggrieved by the order passed under Section 167(5), not to stop further investigation even when the investigation was not concluded within six months from the date on which he was arrested… Can the Sessions Judge entertain the petition filed by A?]

Answer

Section 167(5) of CrPC lays down the provision that, “If in any case triable 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 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.”

The provisions of this section are supplementary to Section 57 and the object is to see that the person arrested by the police is brought before a Magistrate with the least possible delay in order to enable the Magistrate to Judge if such a person is able to make any representation in the matter.

Sub-section (5) of Section 167 deals with the investigation in summons cases and prescribes a time limit for the continuation of investigation in summons cases and also provides for stopping of investigation after six months from the date on which the accused was arrested unless the investigating officer 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.

The framers of the Code have prescribed a limit of six months for completion of the investigation in summons cases from the date of arrest obviously with the aim of stopping the protracted investigation of such offences.

In Hussainara Khatoon v. Home Secretary, State of Bihar [1979 AIR 1369] the Supreme Court considered the mandatory nature of Section 167(5) and observed thus:

“We also find from Section 167(5) of the Cr.P.C. 1973 that if in any case triable 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 satisfies the Magistrate that for special reasons and in the interest of the justice the continuation of the investigation beyond the period of six months is necessary.

We are not at all sure whether this provision has been complied with, because there are quite a few cases where the offences charged against the under-trial prisoners are triable as summons cases and yet they are languishing in jail for a long number of years for exceeding six months.

We, therefore, direct the Government of Bihar to inquire into these cases and where it is found that the investigation has been going on for a period of more than six months without satisfying the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary, the Government of Bihar will release the under-trial prisoners, unless the necessary orders of the Magistrate are obtained within a period of one month from today.”

The section clearly lays down that the power to permit the continuation of investigation given to the Magistrate has to be exercised before the period of six months and the Magistrate is also under an obligation to stop further investigation unless he orders the continuation as provided under the section.

In Jay Sankar Jha v. State, 1982 Cri LJ 744 a Division Bench of the Calcutta High Court considered the scope of Section 167(5) and held that continuation of the investigation beyond the period of six months in contravention of law, is illegal and the cognizance taken by the Magistrate is bad in law and the subsequent proceeding is without jurisdiction.

A reading of sub-section (6) further shows that 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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