K. D. SHARMA, C. J. - (1.) THE petitioner, Prabhu, by name has invoked inherent jurisdiction of this Court by way of an application u/s 482 Cr. P. C. for quashing the order of the learned Munsiff and Judicial Magistrate, Tonk dated 21. 8. 1982, whereby, the application of the petitioner u/s 167 (5) Cr. P. C. was dismissed and the criminal proceedings against the petitioner subsequent to the expiry of the period of six months, were ordered to continue.
(2.) THE relevant facts giving rise to this application u/s 482 Cr. P. C, may be briefly, stated as follows: - On 17. 2. 1981, Shri Ramanand Shukla, C. I. (Excise), Tonk searched the residential house of the petitioner and recovered half bottle of illicit liquor from his room. The petitioner was arrested the very day and was bailed out later-on, on the next day by the Chief Judicial Magistrate, Tonk. The Police however, could not complete the investigation within the period of six months from the date on which the petitioner was arrested, for the reasons best known to them. The Police, however, applied in writing to the learned Additional Munsiff and Judicial Magistrate to whose Court the case was transferred on 10. 8. 1981, for granting time on different dates for completing investigation, but no orders were passed on such application by the Judicial Magistrate. Eventually, the police submitted a charge sheet against the petitioner u/s 4 (2) of the Rajasthan Prohibition Act (here in-after referred to as the Act), in the court of learned Additional Munsiff and Judicial Magistrate, Tonk on 11. 1. 1982. The case was adjourned from time to time up to 19. 5. 1982 for one reason or the other. The petitioner on 19-5-1982 filed an application before the Additional Munsiff and judicial Magistrate that the case against him was triable as summons case and the investigation was not concluded within the period of six months from the date of his arrest and so the learned Judicial Magistrate may make an order stopping further investigation into the offence under sub-section (5) of Section 167 Cr. P. C. The learned Judicial Magistrate rejected the application of the petitioner on the ground that it was not filed in the court before filing of the challan by the police. Aggrieved by this order, the petitioner has moved this Court for redress of his grievance. I have carefully perused the record and heard Mr. K. N. Tikku, learned counsel for the petitioner and Mr. G. C. Chatterji, learned Public Prosecutor for the State. It has been contended before me by Mr. K. N. Tikku, learned counsel for the petitioner that in a case triable by a Magistrate as summons case, if the investigation is not concluded by the police within a period of six months from the date on which the accused was arrested, the Magistrate is bound to make an order stopping further investigation into the offence, unless the Investigating Officer is able to satisfy the Magistrate that for special reasons and in the interest of justice, the continuation of the investigation beyond the specified period, is necessary. Mr. K. N. Tikku further urged that no attempt was made by the Investigating Officer to satisfy the Judicial Magistrate that there existed special reasons for the continuation of the investigation beyond the period of six months and in the interest of justice also, such continuation was necessary. According to the submission of the learned counsel for the petitioner, the subsequent criminal proceedings filed against the petitioner after the expiry of the period of six months, was without jurisdiction and the Additional Munsiff and Judicial Magistrate committed a grave error in taking cognizance on police report based on such belated investigation.
(3.) IN support of his above contention, Mr. K. N. Tikku, relied upon an authority: Jai Shanker Jha vs. State (1 ). Mr. G. C. Chatterji, learned Public Prosecutor on the other hand, contended that the petitioner is not entitled to raise this objection after the filing of the charge sheet against him in the competent court and that the investigation carried on after the expiry of the period of six months, cannot take away the jurisdiction of the court, which is competent to try the petitioner for the offence under Section 4 (2) of the Act. I have carefully considered the rival contentions mentioned above. It has not been disputed before me that the charge-sheet was filed against the petitioner in the court of Additional Munsiff and Judicial Magistrate, Tonk after the expiry of the period of six months from the date of arrest of the petitioner i. e. 17. 2. 1981. Further, there is no dispute about the fact that the learned Magistrate did not pass an order that he was satisfied for special reasons and in the interest of justice that the continuation of the investigation beyond the period of six months, was necessary. It is no doubt true that the Officer making the investigation in this case applied many a times for grant of time to file the challan against the petitioner, but no orders for continuation of the investigation beyond the period of six months, were passed either by the Chief Judicial Magistrate or by the learned Judicial Magistrate on such applications. The contention of the learned Public Prosecutor that the petitioner ought to have raised this objection immediately on the expiry of the period of six months is not tenable, because it was the duty of the Magistrate to stop further investigation beyond the period of six months, unless he was satisfied that for special reasons and in the interest of justice, the continuation of the investigation beyond the period of six months, was necessary. Under the law it was not obligatory on the petitioner to raise any such objection immediately on the expiry of the period of six months. The provisions contained in sub-sectionf5) of Section 167 Cr. P. C. are of mandatory nature and the delay on failure on the part of the petitioner to raise such objection, in my view, could not cure the illegality that had crept in the proceedings on account of failure of the Magistrate passing an order for stopping further investigation into the offence beyond the period of six months. ;