D.L.MEHTA, J. - (1.) THIS revision petition has been directed against the order dated 26th August, 1986 passed by the Munsif and Judicial Magistrate, Khetri.
(2.) BRIEF facts of the case are that the FIR was lodged against the petitioner under Section 354 -II on 7 -9 -1985. The petitioner was arrested on 26th November 1985 and he was also bailed out. Charge sheet against the accused was filed on 11 -6 -1986. The petitioner moved an application under Section 167(5) Cr PC with the prayer that the charge -sheet has been filed beyond the period of six months from the date of his arrest and in view of the provisions of Section 167(5) no case can be registered and proceeded. The submission of the petitioner was rejected. Mr. Gupta, learned Counsel for the petitioner has cited before me the case of Jagannathan and Ors. v. State 1983 Cr. LJ 1748, in which the Madras High Court has held as under: Under the statutory provision, viz., Section 167(5) there are statutory duties, one cast on the Court and the other on the Investigating Officer. For the invocation of this Sub -section, the following conditions should be satisfied: [1] The case to which this provision is to applied should be one triable by the Magistrate as a summons case; [2] The accused in that case should have been arrested; and [3] The investigation should no have been concluded within a period of six months from the date of arrest of the accused. The officer making the investigation has necessarily to move the Court before which the case is pending, for an order permitting continuation of the investigation beyond the period of six months, before the Magistrate discharges his duty, which comes only after the expiry of six months. It follows that these two duties cast on these two functionaries are independent of each other. Taking into custody of a person by the Magistrate on his surrender also will come within the ambit of the term 'arrest' and the period of six months will commence to be reckoned from the date of such surrender or the arrest of the accused.
(3.) MR . Gupta has further cited before me the case of Calcutta High Court in Jay Shanker Jha v. State 1982 Cr LJ 744. Their Lordships held as under: Where in a summons case, the investigation of the case was not concluded within a period of six months from the date of arrest of the accused, and no attempt was made by the Investigating Officer to satisfy the Magistrate as required by Section 167(5) that for 'special reasons' and in the 'interest of justice' the continuation of the investigation beyond the period of six months was necessary, the Magistrate was bound to make an order stopping further investigation into the offence. The continuation of investigation beyond the period of six months in contravention of law, was illegal and the cognizance taken by the Magistrate was bad in law and the subsequent proceeding was without jurisdiction; It could not be said that by asking the Investigating Officer to expedite investigation and by taking cognizance after the expiry of the period of six months the Magistrate had impliedly allowed the continuation of investigation, because the Magistrate has. no such competence as the investigation beyond the period of six months can only continue if the conditions laid down in Section 167(5), Cr.PC are fulfilled. ;