MRS. SUSIE REHMER Vs. STATE

JUDGEMENT

(1.) BY this writ petition filed under Article 226 of the Constitution of India read with Section 482 of Code of Criminal Procedure, 1973 the petitioner seeks quashing of the FIR No. 235/2008 dated 17.06.2008. The factual matrix of the case is as follows:

(2.) MS . Geeta Luthra, counsel for the petitioner contended that merely missing of a page would not attract Section 12(1) (b) of the Passport Act as the case of the State is not that any specific entries were manipulated or altered by the petitioner in the passport. In support of her arguments counsel for the petitioner has placed reliance on Schedule V of Clause 5 of The Passport Act, 1967 and judgment of the Apex Court in Akmal Ahmed v. State of Delhi : AIR 1999 SC 1315 and of Delhi High Court reported in, 134 (2006) DLT 700 in Balvinder Singh v. State. Counsel also submits that even otherwise such entry or alteration has to be wilful which is not a case set up by the State. Another contention raised by the counsel for the petitioner was that the State cannot file a police report in a summon case where the investigation is not completed within the statutory period of six months. She submitted that the FIR in the present case was registered on 16.6.2008 and till date the investigation has not been completed. The contention of the counsel was that it is the mandate of Section 167(5) of the Code of Criminal Procedure that the investigation in a summon case triable by a Magistrate must be completed within a period of six months. Counsel further submitted that if for any reason investigation in such like case does not get completed then it is for the prosecution to approach the Magistrate to seek extension of the six months period which in the present case has not been done by the State. In support of her argument counsel for the petitioner has placed reliance on the judgment of High Court of Madras in Azalea Veronica v. State rep. By Inspector of Police : 2007 Cri LJ 3038. She further submitted that it can be assumed that the investigation already stands completed in view of the stand taken by the State in the Status Report. Counsel further stated that even otherwise import of Section 167(5) of Cr.P.C. is that any investigation done beyond the mandatory period of six months cannot be looked into by the court. In support of her arguments, counsel for the petitioner placed reliance on the judgment of the Apex Court in State of Karnataka v. M. Raju, 1995(1) RCR 38.

(3.) SO far as Section 167(5) is concerned, Mr. Pahwa submitted that if the investigation in a summons case is not completed for any reason then it is for the Magistrate to pass an order to stop further investigation into the offence and no such order has yet been passed by the Magistrate in the present case. Counsel further submitted that under Section 167(5) of the Code of Criminal Procedure the Magistrate after recording special reasons if any advanced by the investigating officer can permit the continuation of the investigation even beyond the period of six months. Counsel further argued that even if there is any delay in the investigation and delay in filing of the Challan the same shall merely constitute an irregularity which cannot vitiate the proceedings as would be manifest from Section 460(e) of the Code of Criminal Procedure. Counsel further submitted that under the Passport Act, 1967 the State is required to obtain a previous sanction of the Central Government before launching the prosecution and therefore the delay in conducting the investigation and filing of the Challan invariably takes place where such sanction of the concerned authority is required. Counsel for the respondent further submitted that Section 12 of the Passport Act is a continuing offence and therefore, under Section 472 of the Code of Criminal Procedure a fresh period of limitation began to run at every moment of such continuing offence. He further submitted that in the given facts of the present case the investigation would certainly continue even beyond the mandatory period of six months and there would be no illegality in carrying out such investigation. In support of his arguments, counsel for the respondent placed reliance on the judgment of the Apex court in State of West Bengal v. Falguni Dutta and Anr. : (1993) 3 SCC 288 and State of West Bengal v. Nirmal Kanti Roy : (1998) 4 SCC 590 and of this Court in Court On Its Own Motion v. State and Jai Bhagwan : 28 (1985) DLT 77.