SANCTITY OF COGNIZANCE TAKEN AFTER SIX MONTHS
AS REFERRED u/s. 167(5) Cr.P.C.
M. KARUNANITHI, B.Sc., M.L.,
Advocate / Former Special Public Prosecutor ‘Q’ Branch CID
32, Law Chambers, High Court Buildings, Madurai – 625 023.
INTRODUCTION :
There are number of provisions in Code of Criminal Procedure, 1973 limiting the power of the learned Magistrate in taking cognizance besides Section 468 Cr.P.C. One among them is Section 167(5) Cr.P.C. The author intends to discuss about the restriction imposed u/s. 167(5) Cr.P.C., with the help of decided cases.
DISCUSSION :
For easy reference Section 167(5) Cr.P.C., is extracted hereunder :
167. Procedure when investigation cannot be completed in twenty-four hours.
(5) If in any case triable by Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary.
COGNIZANCE – MEANING
(1) A Court’s right and power to try and to determine cases
(2) The taking of judicial or authoritative notice.
COGNIZANCE – DEFINITION :-
It is made clear that the term cognizance has not been defined in the Code of Criminal Procedure. On bare reading of Section 190 Cr.P.C., it is made clear that what action of the learned Judicial Magistrate would amounts to taking cognizance has not been defined, but when a Judicial Magistrate in order to take cognizance of the offence taking note of accusation and apply his judicial mind into the allegations made in the complaint or on the police report, he is said to have taken cognizance on the matter. The above view has been reiterated in Kishan Singh Vs. State of Bihar by the Hon’ble Supreme Court – (1993)2 SCC 16.
In order to apply Section 167(5) Cr.P.C., the following are the essential ingredients:
1) It is applicable only to summons case investigated by the police.
2) The limitation starts from the date of arrest of the accused.
3) The restriction is not absolute one, on application it can be extended by the Judicial Magistrate.
The law specifically mandates that in a summon case after arrest of an accused investigation not to continue after six months. So, the cognizance can be taken on the materials collected during six months from the date of arrest, since it was not barred by Section 167(5) Cr.P.C.
State of West Bengal Vs. Falguni Dutta
(1993)3 SCC 288 = 1993 SCC Crl. 815.
The learned Judicial Magistrate can ignore the conclusion arrived at by the investigation office and he can independently apply his mind to the facts and the materials collected and emerging from the investigation and can take cognizance of the offence, if he things fit and exercise his power under Section 190(1) (b) Cr.P.C. – (2006)4 SCC 359 Minnu Kumari Vs. State of Bihar.
When more accused involved and arrested – from what date limitation will commence
When several accused are involved and arrested on different dates, it is the date when an accused was arrested firstly is the crucial date for calculating the six months time.
1995 Crl.L.J. 115 – Subrata Patna Vs. Director of Panchayat.
In the above case, it has been held that the six months period will commence from the arrest of one accused firstly.
Whether accused has to file an application to stop the investigation after the period of six months or not?
In Jaganath Vs. State of Tamil Nadu reported in 1984 MLJ Crl. 129, it has been held that it is to be stopped whether accused prays for it or not. Hence, a duty is cast upon the learned Judicial Magistrate to stop further investigation after the period of six months as contemplated u/s. 167(5) Cr.P.C.
Whether cognizance taken after six months is valid?
It is to be pointed out that Section 167(5) Cr.P.C. mandates that in case of investigation in summons case, the investigation is to be stopped unless extension of time has been sought for by the investigation officer. The said provision does not bar to take cognizance on the materials collected during the period of six months.
1992 Crl.LJ 1000 – State of Punjab Vs. Amar Singh
1988 Crl.LJ 1057 – PP, Hyderabad Vs. S.P. Reddy
In the above cases, it has been held that the cognizance can be taken on the materials collected during the period of six months.
Whether Section 167(5) Cr.P.C., is applicable to E.C. Act Cases?
It is needless to say that Section 167(5) Cr.P.C., does not classify any offences except summons case. So, all the summons cases are very well covered u/s. 167(5) Cr.P.C.
1) PP, High Court, Hyderabad Vs. Anjaneyalu 1986 Crl.LJ 1456
A Special Court under EC Act is entitled to take cognizance of police report u/s. 173(2) Cr.P.C., on the investigation done within a period of six months.
2) Phalgundi Dutta Vs. State of W.B – 1991 Crl.LJ 565
If the case is triable summarily no matter what classification the offence answers, the accused is to be released, if the investigation is not concluded within six months. Thus, Section 167(5) Cr.P.C. applies to EC Act offences also.
CONCLUSION :
Thus, the learned Magistrate can very well take cognizance on the materials collected during the period of six months. Section 167(5) Cr.P.C does not create bar to take cognizance on the materials collected during the period of six months from the date of arrest of the accused.