JUDGMENT - PURANIK S.W., J.: - The respondent - a Police Constable, was charge-sheeted for an offence under section 7(3) of the Protection of Civil Rights Act before the Judicial Magistrate, First Class, 6th Court, Nagpur in Criminal Case No. 460/83. After service of summons in the Court the accused appeared, furnished bail and filed an application under section 258 of Criminal Procedure Code seeking discharge. He contended that the charge-sheet was filed more than six months after the date of his arrest and the prosecution was for a cognizable offence triable as a summons case. He further contended that in view of the provisions contained in section 167(5) of the Criminal Procedure Code, the investigation which continued beyond the period of six months was illegal being without the previous sanction of the Magistrate in the interest of justice. It was for this reason that according to him, the entire proceedings are vitiated on the face of illegal charge-sheet filed before the trial Court. 2. The applicant herein i.e. the State, opposed the application of the accused. It was their say that any illegality or irregularity in the investigation does not affect the power of the Court to take cognizance. It was further contended that for the offence in question viz. under the Civil Rights Act, the maximum punishment is 6 months, and therefore, the Court could take cognizance within a period of one year as stipulated under section 468 of Criminal Procedure Code. 3. The learned trial Court, however, agreed with the submission of the respondent accused, and held that the charge-sheet filed before it under section 173 Criminal Procedure Code, was illegal and the entire proceedings are vitiated. He, therefore, passed an order of discharge of the accused under section 258 of Criminal Procedure Code. 4. It is this order which is impugned by the State. The respondent was duly served, but is not represented. Shri Habbibuddin Ahmed, the learned A.P.P. appears for the State. 5. The learned trial Judge has referred to the judgment of the Supreme Court in (H.N. Rishbud v. State of Delhi)1, A.I.R. 1955 S.C. 196 for the purpose of finding out what comprises a police investigation into an offence. The respondent was duly served, but is not represented. Shri Habbibuddin Ahmed, the learned A.P.P. appears for the State. 5. The learned trial Judge has referred to the judgment of the Supreme Court in (H.N. Rishbud v. State of Delhi)1, A.I.R. 1955 S.C. 196 for the purpose of finding out what comprises a police investigation into an offence. It was observed therein that apart from making spot enquiry, panchanama and seizures and recording of statements, the investigation also comprises of the Police Officer forming his opinion on the basis of facts and record as to whether there is enough material to find the accused having committed the offence and then to lodge his report under section 173 of Criminal Procedure Code before the trial Court. 6. The trial Court has also referred to three other rulings of Delhi, Rajasthan and Calcutta High Courts respectively. They deal with the provisions of section 167(5) of the Criminal Procedure Code as it stands amended and the consequence of non-compliance with that provision in respect of summons case whether cognizance may or may not have been taken. 7. The Division Bench of Calcutta High Court in (Jay Shankar Jha v. State)2, 1982 Cri.L.J. 744, has held that: “Where in a summons case, the investigation of the case was not concluded within a period of six months from the date of the arrest of the accused, and no attempt was made by the Investigation Officer to satisfy the Magistrate as required by section 167(5) that for “Special Reasons” and in the “interests of justice” the continuation of the investigation beyond the period of six months was necessary, the Magistrate was bound to make an order stopping further investigation into the offence. The continuation of the investigation beyond the period of six months in contravention of law, was illegal and the cognizance taken by the Magistrate was bad in law and the subsequent proceeding was without jurisdiction.” 8. The Single Judge of the Rajasthan High Court in the case of (Babulal v. State of Rajasthan)3, 1982 Cri.L.J. 1001 has taken the following view: “One of the objects sought to be achieved by the new Cr.P.C. 1973 was to avoid delay in investigation and trial while ensuring a fair trial to the accused on the principles of natural justice. The Single Judge of the Rajasthan High Court in the case of (Babulal v. State of Rajasthan)3, 1982 Cri.L.J. 1001 has taken the following view: “One of the objects sought to be achieved by the new Cr.P.C. 1973 was to avoid delay in investigation and trial while ensuring a fair trial to the accused on the principles of natural justice. It was a notorious fact that under-trials remained behind the bars for long periods even without a charge-sheet being filed against them as many of such accused were unable to furnish bail or were not granted bail. Section 167(5), Criminal Procedure Code was enacted to avoid delay in investigation which was harmful not only to the individuals but also to the Society and the under-trials were languishing in detention even though accused of offences comparatively minor in nature triable as summons cases.” “After expiry of six months from the date of arrest of an accused in a summons case if proper care is not bestowed upon section 167(5) and the investigation is allowed to drag beyond this period in the absence of special reasons and the interest of justice an accused would still be in detention if he was unable to furnish bail. This is not warranted by law because once the investigation is stopped the accused has to be released even though he is unable to furnish bail, as the power of detention and remand under section 167 is only while the investigation is going on. It comes to an end as soon as the charge-sheet is filed or the investigation is stopped. Viewed in this context it appears that section 167(5) is mandatory in character and it is the duty enjoined upon the Magistrate to see that no investigation is continued in a summons case beyond six months from the date of the arrest of the accused without his permission.” 9. The learned Judge has referred to cases decided by other High Courts as well as by the Supreme Court. Mention must be made of H.N. Rishbud v. State of Delhi (supra) and (Hussainara Katoon v. State of Bihar)4, A.I.R. 1979 S.C. 1377. 10. Chapter XII of the Criminal Procedure Code, 1973 relates to information to the police and their powers to investigate. It deals with information in cognizable cases under section 154 and information as to non-cognizable cases to section 155. 10. Chapter XII of the Criminal Procedure Code, 1973 relates to information to the police and their powers to investigate. It deals with information in cognizable cases under section 154 and information as to non-cognizable cases to section 155. The powers and procedure for investigation are respectively to be found under sections 156 and 157. Under section 157, if from information received or otherwise, an officer in-charge of a Police Station has reason to suspect the commission of an offence, which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot to investigate the facts and circumstances of the case, and if necessary, to take measures for the discovery and arrest of the offender. We are not concerned with the Proviso of this section in the present case. 11. Thus, section 157 gives powers to the Investigating Officer in a cognizable offence to proceed with the investigation forthwith and also to take measures for the discovery and arrest of the offender. He is also required to furnish a report to the concerned Magistrate. Other provisions in this Chapter from sections 158 to 167 are in connection with other powers of the Police Officers in calling the attendance of witnesses for enquiry, recording their statements, for conducting searches and seizures of concerned documents and properties and for recording confessions etc. The Chapter then proceeds to section 167 which deals with the procedure when investigation cannot be completed within 24 hours. This provision has been drastically amended in 1973 and 1978 with a view to expedite the investigations in cases where the person arrested is detained in custody. It gives the powers to the police and the Magistrate with regard to the continuation of the detention of the accused either under police custody or under Magisterial custody. This provision has been drastically amended in 1973 and 1978 with a view to expedite the investigations in cases where the person arrested is detained in custody. It gives the powers to the police and the Magistrate with regard to the continuation of the detention of the accused either under police custody or under Magisterial custody. It is in this section that sub-section (5) is introduced which reads as under:- “If in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of 6 months from the date on which the accused was arrested, a 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, continuation of the investigation beyond the period of six months is necessary.” 12. A perusal of the Scheme of section 167 shows as in the opening clause, “Whatever any person is arrested and detained in custody and it appears that the investigation cannot be completed within ....”, that the provision relatives to a person “arrested and detained in custody”. It is for this reason that in sub-section (2) also the powers of the Magistrate to continue “detention” either in “police custody” or in “Magisterial custody” is prescribed and further if within a period of 60 days or 90 days, as the case may be, the investigation is not complete, the accused shall be released on bail. However, Explanation (I) further says that the accused shall be detained in custody so long as he does not furnish bail sub-section (2-A) of section 167 also refers to forwarding the accused to the Executive Magistrate for authorising “further detention” of the accused with a proviso that the Executive Magistrate shall before the expiry of the period of further extension transmit the record of the case to the judicial Magistrate. Sub-section (3) of section 167 also refers that “a Magistrate authorising under this section” detention in the custody of the notice “shall record his reasons for so doing.” It is in the light of this phraseology used in various provisions and in particular the opening clause, that it is apparent that section 167 is mainly intended to see that no person is kept languishing in custody, police or Magisterial, for continued period of investigation. This would not, in my opinion, apply to cases where the investigating officer has already released the accused on securing surety bond from him. Sub-section (5) of section 167 relates to summons cases in particular and says that if the investigation in such case is not concluded within 6 months from the date of the arrest of the accused, the Magistrate shall make an order stopping further investigation into the offence. At this stage, also the officer making the investigation can satisfy the Magistrate that for special reasons and in the interest of justice continuation of investigation beyond six months is necessary. Sub-section (6) of section 167 says that inspite of the order of stopping further investigation by a Magistrate under sub-section (5) the Sessions Judge may if he is satisfied on an application made to him that further investigation into the offence ought to be made, he may vacate the order passed by the Magistrate under sub-section (5) and direct further investigation to be made into the offence subject to such direction with regard to bail and other matters. To my mind, it is apparent from the last clause of this sub-section which says “subject to such directions with regard to bail and other matters” that the detention of any accused person during investigation for a summons case should not exceed six months and if the investigation is directed to be continued beyond that, directions regarding bail of the detenu should be specified. 13. Then next I come to the release of the accused under section 169. It is in this section that, if upon an investigation under this Chapter, it appears to the officer incharge of the Police Station, that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if an when so required, before a Magistrate empowered to take cognizance of the offence on a police report. It therefore, applies only in cases where the person accused is in custody and the Police Officer is enjoined upon releasing him on executing bond if it appears to him that there is not sufficient evidence to justifying forwarding of the accused to the Magistrate. 14. It therefore, applies only in cases where the person accused is in custody and the Police Officer is enjoined upon releasing him on executing bond if it appears to him that there is not sufficient evidence to justifying forwarding of the accused to the Magistrate. 14. Under section 170 of Criminal Procedure Code, if it appears to the officer upon investigation that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take the cognizance of the offence of if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed for his attendance from day to day before such Magistrate until otherwise directed. Thus, upon investigation, if the Investigating Officer is satisfied that there is sufficient ground for proceeding against the accused in a prosecution, he shall forward the accused along with his report to the Magistrate or if the offence is bailable, he shall obtain necessary security and direct him to appear before the Magistrate on a given date. It is, therefore that under section 173 the report is filed stating amongst other things whether the accused has been arrested or whether he has been released on bail bond or whether he has been forwarded in custody. 15. Chapter XIV deals with conditions requisite for initiation of proceedings and the opening section 190 relates to the cognizance of offences by Magistrates. It says “.. the Magistrate ...may make cognizance of any offence: (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from an person other than a Police Officer, or upon his own knowledge, that such offence has been committed.” Sub-section (1)(b) of section 190 deals with cognizance upon a police report of such facts. The police report naturally refers to section 173 of Criminal Procedure Code. 16. Having briefly perused the scheme of investigation and taking up cognizance, one more section is relevant and that is section 468. It describes a bar taking cognizance after a lapse of period of limitation. The police report naturally refers to section 173 of Criminal Procedure Code. 16. Having briefly perused the scheme of investigation and taking up cognizance, one more section is relevant and that is section 468. It describes a bar taking cognizance after a lapse of period of limitation. It reads as under: “468(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be - (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purpose of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment”. 17. As already observed above, section 167 deals with person arrested and in custody. However, even assuming that section 167 sub-section (5) deals with only cases triable as summons cases, where the accused is arrested and the investigation is not completed within six months of his arrest and the Magistrate is enjoined upon stopping the investigation, yet I feel non-stopping of the investigation would be an error or irregularity and we would not vitiate the taking of cognizance by the Magistrate. 18. The learned Judge of the Rajasthan High Court in the case of Babula v. State of Rajasthan (supra) has referred to several decisions including that of the Supreme Court in (Hussainara Khatoon v. Home Secretary, State of Bihar)5, A.I.R. 1979 S.C. 1360. However, it appears that the cases referred are in respect of persons in detention and who would continue to be in detention even in summons case for a period beyond six months. It is in the light of these facts that the observations have been recorded. The Supreme Court in Hussainara's case (supra) has constantly referred to the “continued detention” of the accused or as “undertrial prisoner”. It is in the light of these facts that the observations have been recorded. The Supreme Court in Hussainara's case (supra) has constantly referred to the “continued detention” of the accused or as “undertrial prisoner”. The portion may be reproduced as follows: “We are not at all sure whether this provision has been complied with, because there are quite a few cases where the offences charged against the under-trial prisoners are triable as summons cases and yet they are languishing in jail for a long number of years far exceeding six months. We, therefore, direct the Government of Bihar to inquire into these cases and where it is found that the investigation has been going on for a period of more than six months without satisfying 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, the Government of Bihar will release the under-trial prisoners, unless the necessary orders of the Magistrate are obtained within a period of one month from to-day.” Even the observation reproduced earlier by the learned Single Judge referred to undertrials languishing in detention or of accused who would still be in detention if he was unable to furnish bail. In my opinion, therefore, section 167 applies to undertrials and deals with the release of the accused from detention if the investigation in a summons case is not completed within 6 months. Bail can be ordered under sub-section (6) by the Sessions Judge if he is satisfied on an application made to him or otherwise that further investigation is necessary in the interest of justice. In an earlier case, of H.N. Rishbud v. State of Delhi (supra) the Supreme Court was dealing with certain provisions of the Prevention of Corruption Act and whether section 5-A of that Act was directory or mandatory as well as effect of its breach. In the course of the judgment, they also dealt with the Scheme of Criminal Procedure Code with regard to the power of investigation by the Police Officer. They observed in para 9 that: “A defect or illegality in investigation, however serious, has no direct hearing on the competence or the procedure relating to cognizance of trial. No doubt a police report which results from an investigation is provided in section 190 Criminal Procedure Code as the material on which cognizance is taken. They observed in para 9 that: “A defect or illegality in investigation, however serious, has no direct hearing on the competence or the procedure relating to cognizance of trial. No doubt a police report which results from an investigation is provided in section 190 Criminal Procedure Code as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Criminal Procedure Code is one out of a group of sections under the hearing “conditions requisite for initiation of proceedings”. The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But section 190 does not. While no doubt, in one sense, Clauses (a), (b) and (c) of section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is, therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of section 190(1) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation section 537, Criminal Procedure Code (old) is attracted.” They further observed: “If, therefore, cognizance is in fact taken, on a police report vitiated buy the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled.” “Refer (Prabhu v. Emperor)6, A.I.R. 1944 P.C. 73 and (Lumbhardar Zutsi v. The King)7, A.I.R. 1950 P.C. 26.” Lastly, it is observed in relation to the said case that : “When a breach of the mandatory provisions of section 5-A, Prevention of Corruption Act is brought to the notice of the Court at an early stage of the trial, the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of section 5-A of the Act”. 19. In my opinion, the above observations of the Supreme Court clearly indicate that merely because the investigation having been vitiated by one or the other mandatory obligations, it does not preclude the trial Judge from taking cognizance of the offence upon that report. It is of course well settled that in such case, the Magistrate will have to satisfy that there is no miscarriage of justice caused to the accused thereby. 20. Lastly, under section 167(5) of Criminal Procedure Code, it is the Magistrate upon whom a mandatory duty is cast to stop the investigation in a summons case after 6 months. If he has not complied with the provision, the Investigating Officer may have assumed that continuation of investigation is permitted. Even otherwise, I do not find that it would cause miscarriage of justice if there is a short delay in tendering the charge-sheet. A Magistrate is surely entitled to take cognizance even on a defective charge-sheet under his powers spelt out in section 190 of Criminal Procedure Code. The only bar is in section 468 regarding limitation. In the present case, the limitation was one year, while the charge-sheet was filed after 7 months. The order impugned, therefore, needs to be set aside with certain directions. 21. The revision is partly allowed. The only bar is in section 468 regarding limitation. In the present case, the limitation was one year, while the charge-sheet was filed after 7 months. The order impugned, therefore, needs to be set aside with certain directions. 21. The revision is partly allowed. The impugned order is quashed and set aside and the learned trial Court is directed to reconsider the case as to whether any miscarriage of justice has been occasioned because of the short delay in filing of the charge-sheet, whether any additional investigation was necessary and whether he should proceed to take cognizance and proceed with the trial. Revision partly allowed. -----