S.167(5) CrPC | Magistrate Can't Issue Automatic Order Without Anything Else To Stop Investigation Upon Expiry Of Six Months: Calcutta High Court

The Calcutta High Court on Thursday held that under Section 167(5) of CrPC, there cannot be an automatic order issued by a magistrate, without anything else, to stop further investigation on expiry of six months from the date of arrest.

The single judge bench of Sugato Majumdar observed:

“Section 167 (5) of CrPC unequivocally states that the Magistrate can stop investigation on contingency that the Investigating Officer has failed 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 is necessary. There cannot be any automatic order without anything else on expiry of a period of six months from the date of arrest.”

It was the case of the petitioner that Investigating Officer (IO) was allowed time beyond a period of six months in terms of various impugned orders passed by the Chief Metropolitan Magistrate without conforming to the provisions of Section 167 (5) of CrPC.

The counsel appearing for the petitioner, S. N. Arefin submitted before the court that Section 167 (5) of CrPC there is a specific time limit of six months to conclude investigation, from the date of arrest and the Magistrate is duty bound to make an order stopping further investigation into the offence beyond the said time period of six months.

The court observed:

“The learned Counsel for the Petitioner, at the time of hearing candidly admitted that no step was taken or no petition was made before the Trial Court objecting to the impugned orders extending time for investigation. The Petitioner was silent at that time but suddenly the Petitioner woke up into the action after filing of the charge sheet on completion of the investigation, clubbing several actions against several courts together. Therefore, the objection regarding extension of time at this belated stage is not sustainable.”

It was further contended by the petitioner that CMM continued to allow time to IO in a mechanical manner through impugned orders and committed an error in not taking cognizance of the offence under Section 190 of CrPC and transferring the same to the another Metropolitan Magistrate for taking cognizance.

The court further held that under Section 460(e) of CrPC, if any Magistrate who is not empowered by law to do any of the following things entirely among others to take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of Section 190 erroneously in good faith, the proceeding cannot be set aside merely on that ground.

The court thus held, “Therefore, even if it is assumed that there is an irregularity, the same is saved of Section 460 (e) of the CrpC, proceeding cannot be quashed.”

Accordingly, the court dismissed the petition and directed the trial court to consider charge within a period of one month.

Case Title: Kamal Ghosh & Anr. v. The State of West Bengal & Anr.

Citation: 2023 LiveLaw (Cal) 76

Coram: Justice Sugato Majumdar

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