JAY SANKAR JHA Vs. STATE WEST BENGAL

JUDGEMENT

(1.) THIS revisional application is at the instance of the petitioner Jay Sankar Jha against whom a proceeding being Case No. G. R. 572 of 1977 under Ss.279 and 338 of Penal Code and Ss.89(a)(b) and 118A of the Motor Vehicles Act is pending before the learned Metropolitan Magistrate, Third Court. Calcutta. The petitioner was arrested on Sept. 3, 1976 in connection with that case. The petitioner was granted bail by the learned Chief Metropolitan Magistrate, Calcutta on Sept. 4, 1976. The police prayed for time on different dates for completing the investigation and challan was submitted against the petitioner on June 27, 1977. The learned Chief Metropolitan Magistrate took cognizance and transferred the case to Metropolitan Magistrate, Third Court. The case was triable as a summons case and the learned Magistrate proceeded with the trial in course of which eight prosecution witnesses were examined. The accused thereafter filed an application under Section 167(5) of the Criminal P.C. contending that there was violation of the mandatory provision of S.167(5), Cr. P.C. as the investigation was not completed within six months from the date of arrest and the challan was submitted beyond the statutory period without seeking any permission from the Magistrate. The accused contended that the cognizance taken was bad in law and further continuance of the case was an abuse of the process of Court. The prayer of the accused was that further proceeding should be stopped and the accused should be acquitted.

(2.) THE learned Magistrate rejected the application on the ground that cognizance was taken by the learned Chief Metropolitan Magistrate and it was not within his competence to challenge the order of the learned Chief Metropolitan Magistrate as he could not sit in judgement over the order of the learned Chief Metropolitan Magistrate.

(3.) THE learned Advocate for the petitioner has contended that cognizance taken was bad in law and the subsequent proceeding thus became illegal and an abuse of the process of Court. The mere fact that the petitioner did not raise the objection earlier cannot deprive him of the right granted by law. It has been further contended that the record does not show that before the expiry of the period of six months from the date of arrest of the accused any attempt was made by the officer making the investigation to satisfy the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months was necessary. The contention of the learned Advocate for the petitioner is that in the instant case the Magistrate was obligated to make an order stopping further investigation as required by the mandatory provisions of S.167(5) of the Criminal P.C. In support of his contention the learned Advocate for the petitioner has referred to the case of Ram Kumar v. The State, reported in 1981 Cri LJ 1288 (Cal).