PRITPAL SINGH, J. - (1.) A case under section 304-A, 279, 337 and 338, Indian Penal Code, which was triable as a summons case, was registered against the petitioner Satpal Singh at Police Division No. 4, Jalandhar, on February 23, 1985. The petitioner was arrested on the same day. It is alleged that although under section 167(5) of the Code of Criminal Procedure (hereinafter called 'the Code') the investigation was required to be completed within six months from the date of the arrest of the petitioner, and no permission had been obtained by the police from the Magistrate to continue the investigation beyond the period of six months, statements of a number of witness were recorded by the police after the expiry of six months and the challan was presented in the Court on November 4, 1985. The petitioner has, therefrom filed this petitioner under section 482 of the Code of Criminal Procedure praying that the proceeding pending before the trial court against him in pursuance of the aforesaid illegal investigation be quashed and he may be discharged.
(2.) IT may be stated here that the petitioner had filed a petition before the trial Court for his discharge on the same facts but it was declined on May 2, 1986 (Annexure P1). In order to consider the prayer of the petitioner it will be useful to reproduce the provision of Section 167(5) of the Code which read as under :- "If in any case triable by a Magistrate as a summons case, the investigation is to 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." It is envisaged by these provisions that the investigation has to be stopped by the Magistrate in a case triable as summons case if it is not concluded within six months from the date of the arrest of the accused. The period of investigation can be allowed to be continued beyond the period of six months if the Investigation Officer satisfied the Magistrate that for special reasons it is necessary to do so. In the present case, admittedly, the investigation of the case continued beyond six months without permission of the Magistrate. Statements of a number of witnesses were recorded during that period. The question for determination is whether the violation of these provisions is fatal to the prosecution case. This question is answered in the negative by the Supreme Court in H.N. Rishbud & Anr. v. State of Delhi, AIR 1975 SC 196 and Ganga Ram v. Union Territory, Chandigarh, 1986(2) Recent CR 139 : 1986(2) CLR 118. It was held that if the Court takes cognizance on a police report vitiated by the breach of mandatory provision relating to investigation, the trail cannot be set aside unless the illegality in the investigation can be shown to have brought a miscarriage of justice. It was further remarked in H.N. Rishbud's case (supra) :- "It does not follow, however, that the invalidity to 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 sufficiently 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 re-investigation as the circumstances of an individual case may call for." Thus the mere fact of investigation having continued beyond a period six months without the permission of the Magistrate does not automatically nullify the continuance of the trial. As held in The State v. Jai Bhagwan, 1985 Cr. LJ 932: "The only result in that case is that the Magistrate will only look 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."
(3.) THE order of the trial Magistrate dated May 2, 1986 reveals that an application under section 197(5) of the Code was moved on behalf of the State seeking permission for continuing the investigation beyond the period of six months. This application has not so far been decided by the trial Court. Both counsel agree that it is incumbent upon the trial Magistrate to decide this application. In circumstances mentioned above the trial cannot be set aside and the petitioner cannot be discharged. Resultantly this petitioner stands dismissed. The trial Court is, however, directed to decide the application under section 167(5) of the Code filed by the prosecution seeking permission to continue investigation beyond the period of six months. The parties have been directed to appear before the trial Court on September 15, 1986.;