State vs Joginder Kumar and Others

Police reports under sections 435/436 RPc were presented before the learned Special Judge (Sessions Judge Bhaderwah). Vide order

impugned in this petition passed on 26.7.1984, the learned trial Judge has discharged the respondents and dismissed the police reports on the

ground that both the challans were time barred. While taking this view, that the two challans were time barred, learned Judge has pressed into aid

the proviso to section 173 of the Code of Criminal Procedure.

Heard the learned counsel for the parties and perused the record.

Subsection (1) of Section 173 Cr.PROCEDURE CODE which is relevant for our purpose and which contains the proviso relied upon by the

trial Judge reads as under:

Report of police officer on completion of investigation: (1) Every investigation under this Chapter shall be completed without unnecessary

delay: Provided that investigation into offences under Section 152, 153A, 295, 295A, 296, 297, 289, 435, 436 and 505 of the State Ranbir Penal

Code shall be completed within two weeks and if the investigation is not so completed the investigating officer shall report the causes of the delay

to the District Superintendent of Police who shall issue necessary instructions for completion of the investigation

The only requirement of law mentioned in the proviso quoted above is that the investigation into the offences mentioned therein should be

completed within two weeks and if the investigation is not so completed, the Investigating Officer shall report the causes of delay to the District

Superintendent of Police who shall issue necessary instructions for early completion of the investigation. The prescribed period of two weeks has a

direct relation to the opening part of subsection which lays down that every investigation under Chapter14 shall be completed without any

unnecessary delay. While therefore, subsection (1) in general terms lays down that further investigation under Chapter14 shall be completed

without any unnecessary delay. Proviso specifically deals with subsection and provides that in respect of offences mentioned therein, investigation

shall be completed in two weeks.

The question which arises for consideration is whether the consequence of noncompletion of the investigation in the prescribed period of two

weeks, or for that matter the noncompletion of the investigation without even unnecessary delay can result in the offences becoming time barred

and directing the accused to be discharged. For answering this question, one has to turn to section 538B of the Code which defines the limitation

and prescribes the period of limitation in respect of certain offences in subsection (2) thereafter. According to section 538B, no court shall take

cognizance of an offence after the expiry of period of limitation as is prescribed in subsection (2) of section 538B. Three categories of offences

have been included in subsection (2) and the period of limitation prescribed ranges from six months to three years. A plain reading of subsection

(2) of section 538B leads one to clearly hold that the maximum period of limitation of three years is restricted to only those offences where the

punishment, though exceeding one year does not exceed three years. It therefore, clearly comes out that for such offences where the punishment

prescribed is more than three years, no period of limitation has been prescribed under the Code.

The only provision of law for our purposes is dealing with the period of limitation being section 538B of the Code, taking recourse to section

173 Cr.PROCEDURE CODE for the purposes of holding the challans to be time barred and discharging the accused on that ground was wholly

improper by the learned trial Judge. He has committed a grave irregularity in taking that view of the matter, perhaps by ignoring the plain reading of

the legal provisions and for the reasons best known to him.

A question may be asked as to what is the import of prescribing the period of two weeks in the proviso to section 173 Cr.PROCEDURE

CODE and what was intended by the Legislature in doing so. The answer has to be found to this question in section 497B of the Code where it

has been stated that the accused persons charged with offences under sections 437/ 436 etc. shall be released on bail if the investigation has not

been completed within a period of two weeks. Section 497B begins with very strict and rigorous requirement that no person accused of an offence

mentioned therein shall be released on bail unless the prosecution has been given an opportunity to oppose the application and the court is satisfied

that there are reasonable grounds for believing that he is not guilty of such offence. After lying down such rigorous and strict rule of law, regarding

the bail application, section itself, in the proviso relents and lays down that the bail shall be granted as a matter of right to accused involved in the

same offences if the investigation has not been completed within two weeks. The consequence of noncompletion of investigation in two weeks,

therefore, is only one and that is the accused are entitled for the grant of bail as a matter of right. There is no other consequence for such

noncompletion of the investigation in the prescribed period of two weeks.

For the foregoing reasons, therefore, this petition is allowed. The order impugned is setaside. Respondents who are present in the court today

are directed to surrender before the learned Sessions Judge (Special Judge) Bhaderwah who shall pass appropriate orders after their surrender in

his court and proceed with the case on its merits in accordance with the law.

Record be sent back forthwith. The parties through their learned counsel are directed to appear before the trial court on December 28th,'1994.