UTPALENDU MAHATO Vs. STATE & ANOTHER

JUDGEMENT

(1.) Having been found guilty of the offence under Sec. 304A of the Indian Penal Code, the petitioner was convicted and sentenced by the Chief Judicial Magistrate, Malda, to suffer rigorous imprisonment for two years and to pay a fine of Rs. 2,000/ - in default, to suffer rigorous imprisonment for six months. The appeal preferred against the said conviction and sentence was dismissed by the learned Sessions Judge, Malda. This revisional application is directed against the said appellate order.

(2.) At the hearing Mr. S.S. Roy, learned counsel for the, petitioner has urged that the entire proceedings before the courts below are vitiated in view of non compliance with the mandatory provisions of Sec. 167(5) and 167(6) of the Code of Criminal Procedure.

(3.) The contention about the invalidity of the proceeding was taken for the first time before the appellate court. The attention of the appellate court was drawn to the single bench decision of this Court in Ali Hossain v/s. State of West Bengali, reported in 83 CWN 559 where the learned Judge observed that if the case triable according to the summons procedure is not completed within six months in terms of Sec. 167(5) of the Code of Criminal Procedure, it is the duty of the Investigating. Officer to apply before the Magistrate before the expiry of the said period for extension of time. That having not been done, the chargesheet submitted after the expiry of the period of six months, would render the proceedings without jurisdiction. The learned Magistrate had no jurisdiction to take cognizance on such chargesheet. The learned Sessions Judge after referring to the said decision held that since no objection was raised by the accused on the very day the chargesheet was submitted against him beyond the period of six months praying that the chargesheet that was submitted should not be taken notice of nor should the cognizance be taken thereupon having regard to the provision of Sec. 167(5) of the Criminal Procedure Code, the accused at the appellate stage could not urge that ground. Secondly, irregularity of taking cognizance against the accused is a mere irregularity which does not vitiate the proceeding in view of the provision of Sec. 460 of the Criminal Procedure Code.