B.S.YADAV, J. - (1.) THE petitioner has been convicted and sentenced under section 304-A, Indian Penal Code. The only irregularity pointed out by the leaned counsel for the petitioner in the proceedings was that the case was triable as a summons case and the charge-sheet was presented in the court after the expiry of more than 6 months of the arrest of the petitioner and thus section 167(5), Criminal Procedure Code, has been contravened. (For the purposes of discussion it is being assumed that in the present case charge-sheet was presented in the court more than 6 months after the arrest of the accused. Otherwise there is no evidence about the date of the arrest though the challan was filed more than 6 months after the registration of the case.) He has further urged that filing of charge-sheet in court is part of the investigation. In support of the latter proposition he has relied upon H.N. Rishbud and another v. State of Delhi, AIR 1955. Supreme Court 196 and M.B. Tharade v. State of Gujarat, AIR 1969, Gujarat 362. Reliance was also placed upon Raj Singh v. The State (Delhi Admn.), 1984(1) Recent Criminal Reports 581 : 1984(2) C.L.R. 388 wherein it was laid down that if the investigation is not completed within 6 months and the police, without the permission from the Court, continues the investigation after that period, such investigation is bad in law as the mandatory provision contained in sub-section (6) of Section 167 of the Code, is violated and the Magistrate cannot taken cognizance on a report submitted on such an investigation as it is not a mere irregularity but an illegality which does not seem to be curable under section 460 or 465 of the Criminal Procedure Code.
(2.) FIRST I will take Raj Singh's case (supra). In a latter case reported as The State v. Jai Bhagwan, 1985 Cr. L.J., 932 a Division bench of the same High Court disapproved the observation made in that earlier case. It would not be out of place to mention here that even in Raj Singh's case (supra) it was recognized that trial court proceeded on the basis of an investigation which had taken place within a period of 6 months from the date of the arrest of the accused. It was remarked :- "If the investigation is not complete within six months, the option available to the police is to seek permission from the Magistrate to continue investigation and if he refuses, then to approach the court of Sessions for such permission and if such permission is refused, then on the basis of the investigation so far made to submit a report under section 169 or under section 173 Cr.P.C." Thus it is clear that even in view of the ratio of Raj Singh's case (supra) reports under section 173 of the Code could be filed in court after six months of the arrest of the accused and the court can take cognizance on such a report. In H.N. Rishbud's case (supra) their lordships nowhere held that cognizance taken on a report submitted after six months of the arrest of the accused was bad in the eye of law and the trial should be quashed on that ground. Their lordship remarked as follows :- "If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be not doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought a miscarriage of justice." It was further remarked :- "It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficient early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstance of an individual case may call for." In Jai Bhagwan's case (supra) it was remarked :- "We do not think it necessary in these cases to decide this aspect and we shall proceed on the basis that the period of investigation continues right up to the date when the report is filed before the Magistrate. But what is important to emphasis is that the mere fact of investigation having continued beyond a period of six months without the permission of the Magistrate does not automatically nullify the continuance of the trial. The only result in that case is that the Magistrate will only look into the material which had been collected within a period of six months and will ignore the other material and then decide whether to take cognizance or not. So the question of prejudice being occasioned would not arise because cognizance would be on the basis of investigation which had been conducted legally and within the time permitted. The trial court in ignoring this aspect has patently committed an illegality."
(3.) THUS the trial cannot be declared a nullity merely on the ground that the charge-sheet was presented in the court more than 6 months after the arrest of the accused, Neither in both the courts below nor in this court it was urged that the Investigating Agency collected any evidence after the expiry of 6 months of the arrest of the accused. In fact, the orders of the courts below show that the charge-sheet had been prepared on 27th April, 1983 i.e. within 6 months of the registration of the case though it was filed in court on 14th July, 1983. As no material was collected by the Investigating Agency after the expiry of 6 months from the date of arrest of the accused, the question of prejudice to the accused will not arise. Hence it cannot be said that the accused in any way has been prejudiced by the investigation.;