1. This petition under S. 482 Cr. P.C is directed against the order dated October 29, 1980 of the Judicial Magistrate No. 1, Jodhpur, taking cognizance against the petitioner under Sec. 4(2) Rajasthan Prohibition Act, 1969 (hereinafter referred to as the Act). The controversy relates to the interpretation of Sec. 167(5) of the Cr. P.C The relevant facts are these. For an alleged offence under Sec. 4(2) of the Act, the petitioner was arrested on 28-1-1979. However, the charge-sheet was not filed within six months from the date of arrest and it further appears that the investigation had not been completed. The petitioner moved an application in the court on 16-10-80 with a prayer that he be discharged because the investigation had not been completed within six months. This application was ordered to be listed for arguments on 29-10-1980. On that date no order was passed on this application as a charge-sheet was then filed and the Magistrate took cognizance of the offence.

2. It is argued by the learned counsel for the petitioner that provisions of Sec. 167(5) are mandatory and the Magistrate should have stopped the investigation in the case because the officer making the investigation did not satisfy the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months was necessary. It is further argued that the investigation should be deemed to have been stopped even without a specific order by the Magistrate because the law-enjoins upon the Magistrate that he shall make an order stopping further investigation into the offence as the officer making the investigation did not move an application before the Magistrate for continuation of the investigation. On the other hand the learned Public Prosecutor contended that provisions of Sec. 167(5) Cr. P.C were not mandatory and in any case any illegality committed during the investigation would not affect the taking of the cognizance. I have considered the rival contentions carefully.

3. There is no direct authority on the point and it has to be decided on first principles. No doubt it was thus held in these authorities:—

Dr. Dr M.C Sulkunte v. State Of Mysore, ((1970) 3 SCC 513); (1971 Cri LJ 519 at p. 523):

“Although laying the trap was part of the investigation and it had been done by a Police Officer below the rank of a Deputy Superintendent of Police, it cannot on that ground be held that the sanction was invalid or that the conviction ought not to be maintained on that ground. It had been emphasised in a number of decisions of this Court that to set aside a conviction it must be shown that there has been miscarriage of justice as a result of an irregular investigation.”

State of Andhra Pradesh v. P.V Narayana (1971 SCC (Cri) 186) : (1971 Cri LJ 676).

“An illegal investigation does not vitiate the trial. The High Court erred in quashing the proceedings against the respondent solely on the ground of illegal investigation, in order to set aside the conviction it must be shown that there has been miscarriage of justice as a result of bad and irregular investigation.”

4. The earliest authority in this respect is H.N Rishbud & Inder Singh v. State of Delhi (1955-1 SCR 1150) : (1955 Cri LJ 526) wherein it was thus held:—

“Held, that S. 5(4) and proviso to Sec. 3. Prevention of Corruption Act, 1947 (II of 1947) and the corresponding Sec. 5-A, Prevention of Corruption (Second Amendment) Act, 1952 (LIX of 1952) are mandatory and not directory and that an investigation conducted in violation thereof is illegal.

If cognizance is in fact taken on a police report in breach of a mandatory provision relating to investigation, the results which follow cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice, it is well settled that an illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby.

When any breach of the mandatory provisions relating to investigation is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly,; and by such officer as it considers appropriate with reference to the requirements of Sec. 5-A Prevention of Corruption (Second Amendment) Act, 1952.”

5. However, in this authority it has been clearly said that if any breach of mandatory provisions relating to investigation is brought to the notice of the court at an early stage of the trial, the court will have to consider the nature and extent of the violation and pass appropriate orders for further investigation wholly or partly as the nature of the case may require. The other two Supreme Court authorities did not consider, the effect of illegality committed during investigation when such question was raised in the early stages of the trial.

6. From a bare perusal of Sec. 167(5) Cr. P.C, it is evidently clear that, this is mandatory in nature as it enjoins upon the Magistrate that he shall make an order stopping further investigation into the offence unless he is satisfied that for special reasons and in the interest of justice the continuation of the investigation beyond six months is necessary. The learned counsel for the petitioner brought to my notice the observations made in the following cases, though none of them are directly on the point but all the same some guidance is provided in deciding the question at issue before me:—

7. In Superintendent & Remembrancer of Legal Affairs, West Bengal v. Nasima Ranga Rao, (1978 Cri LJ 1830) (Cal) the question at issue was whether an order passed by the Sessions Judge on an application under Sec. 167(6) should be a speaking order it was held that the Sessions Judge was required to consider the grounds raised in the application to satisfy himself for granting permission for further investigation into the offence and to give his own reasons in support of the order this would therefore imply that orders under Section 167(5) or 167(6) are not routine orders and various factors have to be considered before an order for continuing the investigation is made.

8. In Matabar Parida v. State of Orissa ((1975) 2 SCC 220) : (1975 Cri LJ 1212) the question was regarding the interpretation of Sec. 167(2) proviso (a) and it was held that the accused could not be kept in detention beyond the period of ninety days even if the investigation is continuing. The intention of the legislature was not to grant any discretion to the court and make it obligatory upon it to release the accused on bail.

9. In Panney Singh v. State of Rajasthan (1979 WLN 377) : (1980 Cri LJ 339) the question was whether the Magistrate could take cognizance on a charge-sheet presented beyond the period of limitation. It was held that the order taking cognizance was without jurisdiction and the court could not subsequent to the passing of the order condone the delay and extend the period of limitation.

10. In Hasan Ali v. The State Of Rajasthan (1979 WLN 151) with regard to the interpretation of Sec. 116(6) it was thus held:—

“Once six months have expired and the period for permitting the continuation of the enquiry is not extended within the period of six months, then the proceedings automatically come to an end in terms of Sec. 116 of the Act itself. Once an enquiry comes to an end, it no more survives. It is very difficult to hold that thereafter the Magistrate could revive it by passing an order for the continuation of enquiry despite the expiry of six months. The reason is that what is dead and closed cannot be infused with life nor can it be revived by a magisterial order when the enquiry is no more subsisting in view of the mandatory provision contained in Sec. 116(6) of the Act.”

11. No doubt in Hussainara Khatoon v. Home Secretary. State of Bihar (1979 Cri LJ 1036) : (AIR 1979 SC 1360) the question before the Supreme Court was not with regard to the mandatory nature of Sec. 167(5) Cr. P.C It was not clear whether the investigation was being continued beyond a period of six months after obtaining proper permission from the court and in these facts it was observed (Para 19):—

“We also find from Sec. 167(5) 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 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 far 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. We would also request the High Court to look into this matter and satisfy itself whether the Magistrates in Bihar have been complying with the provisions of Sec. 167(5).”

12. It was again reiterated in the case of Hussainara Khatoon v. Home Secretary, State of Bihar (1979 Cri LJ 1052); ((1980) 1 SCC 108 : AIR 1979 SC 1377) and the following observations were made (Para 8):—

“We had given direction by our Order dated 26th Feb. 1979 that the State Government should enquire into cases where the offences charged against under-trial prisoners are triable as summons cases, for the purpose of ascertaining whether there has been compliance with the provision of Sec. 167, sub-s. (5) Cr. P.C It is clear from this 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 must 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 justice, the continuation of the investigation beyond the period of six months is necessary. With a view to securing compliance with this provision we directed that if, in a case triable by a Magistrate as a summons case, it is found that investigation has been going on for a period of more than six months without satisfying the Magistrate that the special reasons and in the interest of justice, the continuation of the investigation beyond the period of six months is necessary, the State Government will release the under-trial prisoner, unless the necessary orders of the Magistrate are obtained within a period of one month. The reasons for giving this direction was that in such a case the Magistrate is bound to make an order stopping further investigation and in that event, only two courses would be open; either the police must immediately proceed to file a charge-sheet, if the investigation conducted till then warrants such a course, or if no case for proceeding against the under-trial prisoner is disclosed by the investigation, the under-trial prisoner must be released forthwith from detention. The State Government has not filed before us any report of compliance with this direction and we would, therefore, require the State Government to do so within a period of ten days from today we would also request the High Court to draw the attention of the Magistrates to the provision in S. 167, sub-sec. (5) and ensure compliance with the requirements of this provision by the Magistrate.”

13. The Criminal P.C 1898 was replaced by the Criminal P.C 1973. It introduced drastic changes in the law relating to procedure for criminal trials. One of the objects sought to be achieved was to avoid delay in investigation and trial while ensuring a fair trial to the accused on the principles of natural justice. It was a notorious fact that under-trials remained behind the bars for long periods even without a charge-sheet being filed against them as many of such accused were unable to furnish bail or were not granted bail. To avoid such unfortunate state of affairs by S. 167 of the new Cr. P.C an attempt was made to expedite the investigation and with that end in view provision was made regarding the release of an under-trial on bail as of right if the investigation is not completed within 90 days. S. 167(5), Cr. P.C, was similarly enacted to avoid delay in investigation which was harmful not only to the individuals but also to the society and the under-trials were languishing in detention even though accused of offences comparatively minor in nature triable as summons cases. With similar ends in view the concept of limitation for the first time was introduced in the new Code. If proper attention is not paid to S. 167(5) startling results may follow. Under S. 167(2) the Magistrate has the power of detention of the accused during investigation. By proviso to sub-s. (2) of this section the Magistrate has to release the accused on bail if he was prepared to and does furnish bail if the investigation is not completed within 90 days. Of course if the accused is unable to furnish the bail, he has to remain in detention even in a summons case pending investigation which has been completed within 90 days. After expiry of six months from the date of arrest of an accused in a summons case if proper care is not bestowed upon S. 167(5) Cr. P.C and the investigation is allowed to drag beyond this period in the absence of special reasons and the interest of justice an accused would still be in detention if he was unable to furnish bail. This is not warranted by law because in my opinion once the investigation is stopped the accused has to be released even though he is unable to furnish bail, as the power of detention and remand under S. 167 is only while the investigation is going on. The power to remand and detain an accused in custody under S. 167 is only while the investigation is pending. It comes to an end as soon as the charge-sheet is filed or the investigation is stopped. Viewed in this context it appears that S. 167(5) is mandatory in character and it is the duty enjoined upon the Magistrate by the law to see that no investigation is continued in a summons case beyond six months from the date of the arrest of the accused without his permission. The Magistracy and the police officers have to pay proper regard to this salutary provision of law which has been enacted not only in the interest of under trials but also in the interest of society. The language of S. 167(5) Cr. P.C on its plain reading points to the same conclusion as the expression used is “The Magistrate shall make an order stopping further investigation…………”. It may further be pointed out that this illegality was brought to the notice of the Magistrate even before the charge-sheet in the case was filed. Even the Supreme Court in the case of H.N Rishbud & Indersingh v. State of Delhi (1955 Cri LJ 526) (supra) has pointed out that if illegality is brought to the notice of the Magistrate in the early stage of the proceedings he has to order re-investigation or further investigation as the case may be.

14. In the two cases of Hussainara Khatoon v. Home Secretary, State of Bihar (1979 Cri LJ 1036 and 1052) the Supreme Court has directed in such cases that the investigating agency should now seek the permission to continue the investigation in the absence of which the Magistrates are bound to stop the investigation. Even such permission has not to be given in routine. The Magistrate has to satisfy himself that for special reasons and in the interest of justice the continuation of investigation beyond the period of six months is necessary. In the case before me, the Magistrate has not cared to stop the investigation which could not be concluded within a period of six months from the date of the arrest of the petitioner. He seriously erred in the discharge of his duty, under S. 167(5) Cr. P.C The investigating agency also did not try to satisfy the Magistrate that for special reasons and in the interest of justice the continuation of investigation beyond the period of six months was necessary. In these circumstances the investigation which was conducted beyond the period of six months has to be treated illegal. The Magistrate could not have taken cognizance on a charge-sheet which contained some of the evidence obtained by illegal investigation. The proper course now would be for the investigating agency to satisfy the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months was necessary and obtain the necessary permission, Unless the permission to investigate is given by the Magistrate, no action can be taken on a charge-sheet which has been filed in breach of S. 167(5) Cr. P.C The question as to the effect of illegality committed during the investigation because of the non-compliance of the mandatory provision of S. 167(5), Cr. P.C on a trial when the objection is not taken early need not be considered in this case. Suffice it to say that different considerations may arise in view of the law enunciated in the three above referred Supreme Court authorities. In the result the petition is accepted and the order of the Magistrate dated 29-10-1980 taking cognizance against the petitioner is hereby quashed.

15. Petition allowed.