Calcutta High Court
Ardhendu Sarkar vs Subhas Chandra Chowdhury And Anr. on 19 July, 1995
Equivalent citations: 1996CRILJ195
ORDER Nripendra Kumar Bhattacharyya, J.
1. The petitioner by this revision under Section 482 of the Code of Criminal Procedure has challenged the legality, propriety and correctness of Order No. 6 dated 2-2-1993 passed by the learned District and Sessions Judge, However, in Crl. Misc. No. 574 of 1992, whereby the learned District and Sessions, Judge, Howrah, upon an application of one Subhas Chandra Chowdhury, Managing Director of M/s. National Iron and Steel Company Limited, allowed the prayer of the said Managing Director of the said Company and directed further investigation into the matter after vacating the order dated 16-5-1992 passed by the learned S.D.J.M. Howrah, in G.R. Case No. 2298 of 1988 whereby the learned Magistrate ordered stoppage of investigation and discharged the accused under Section 167(5) of the Code of Criminal Procedure. The learned District and Sessions Judge passed that order under sub-section (6) of Section 167 of the Code of Criminal Procedure.
2. A short resumption of the fact is that the accused was an employee and acted as a cashier in the Company, namely, M/s. National Iron and Steel Company Limited, a Government Undertaking (which term will be referred to hereinafter as 'the Company').
3. It was alleged that in his capacity as cashier of the Company the accused withdrew huge sums of money from Bank but he did not post the same in the cash book or posted a lesser amount in the cash book than the amount that was drawn from the Bank. The amount was not entered into the relevant account ledger and thereby the accused has dishonestly misappropriated a total sum of Rs. 13.85 lakhs by such false entry causing huge loss to the State Exchequer.
4. On 17-12-1988 a representative of the Company lodged an information with the Bally Police Station on which Bally Police Station Case No. 18 dated 17-12-1988 was registered against the accused petitioner herein for an offence under Section 409 of the Indian Penal Code. On that Police Station Case G.R. Case No. 2298 of 1988 was started in the Court of the learned S.D.J.M., Howrah. The accsued petitioner was arrested on 17-12-1983 and granted bail by the said learned Magistrate on 22-12-1988.
5. Though the investigation of the case proceeded, the chargesheet was submitted within the stipulated period as stipulated under sub-Section (5) of Section 167 of the Code of Criminal Procedure. The period is 2 years under the said sub-Section.
6. On 16-5-1992 the investigating officer prayed for extension of further time to complete the investigation of the case but the learned S.D.J.M., Howrah, in his order dated 16-5-1992, inter alia, observed that the statutory period had already expired and the ground stated in the petition of the investigating officer was not at all satisfactory and on such finding he rejected the prayer for extension of time to complete the investigation and ordered stoppage of further investigation and discharged the accused.
7. After lapse of 4 months therefrom on 25-9-1992 the Managing Director of the said Company made an application before the learned District and Sessions Judge, Howrah praying inter alia, for vacating the order of the learned S.D.J.M., Howrah directing stoppage of further investigation and discharging the accused under Sub-section (5) of Section 167 of the Code of Criminal Procedure which order was made on 16-5-92 and also permitting the investigating officer to further investigate into the offence in exercise of his power under Sub-section (6) of Section 167 of the Code of Criminal Procedure.
8. After hearing the parties and considering the materials on record, the case diary and other allied materials, the learned District and Sessions Judge, Howrah by his order No. 6 dated 2-2-1993 in Crl. Misc. Case No. 574 of 1992 vacated the order of the learned S.D.J.M., Howrah dated 16-5-1992 and directed the investigating agency to make further investigation of the case and to submit the report in the official form before the appropriate authority in due course of time.
9. Three-fold submissions have been made by the learned Senior Advocate for the accused petitioner, Mr. Dilip Kumar Dutta, appearing with the learned Advocate Mr. Arup Chandra Chatterjee. His first contention was that the order is not a speaking order and that no reason has been assigned by the learned District and Sessions Judge, Howrah in his order impugned for granting permission for further investigation into the offence and for vacating the order of the learned S.D.J.M., Howrah.
10. In the second place he contended that no time limit has been fixed by the learned District and Sessions Judge, Howrah in his impugned judgment for submission of the charge-sheet before the learned S.D.J.M., Howrah. As no time limit has been fixed for submission of the charge-sheet the order of submission of the charge-sheet and vacating the order of the learned S.D.J.M. is incorrect, illegal and imperfect.
11. Thirdly and lastly, it was contended by Mr. Dutta that Article 21 of the Constitution of India enshrines the right of the accused for speedy disposal of the case or trial. But as in the impugned order the learned District and Sessions Judge, Howrah did not specify any time for submission of the charge-sheet and thereby the investigation had purported to be prolonged, the order of vacating the order of the learned S.D.J.M. Howrah and direction of further investigation is violative of Article 21 of the Constitution of India. In support of his submission Mr. Uutta relied on a Supreme Court decision in the case of Abdul Rehman Antulay v. R.S. Nayak .
12. On the other hand, appearing for the opposite party No. 1, the Managing Director of the Company, the learned Senior Advocate Mr. Balai Chandra Roy appearing with the learned Advocate Mr. Ashim Kumar Roy contended that in the order impugned the learned District and Sessions Judge, Howrah has assigned reason for vacating the order of the learned S.D.J.M. Howrah and for directing further investigation of the case and submission of the report in the final form.
13. In the next place, Mr. Roy contended that the power of the Sessions Judge under sub-section (6) of Section 167 of the Code of Criminal Procedure is an independent power, independent of the revisional power or an appellate power. According to him power under sub-section (6) of Section 167 of the Code of Criminal Procedure is not controlled by sub-section (5) of Section 167 of the Code of Criminal Procedure. The only test that has been laid down in sub-section (6) of Section 167 of the Code of Criminal Procedure is the satisfaction of the Sessions Judge "that further investigation into the offence ought to be made" The Sessions Judge, is so satisfied, shall vacate the order of the Magistrate stopping further investigation into an offence and discharge of the accused as made under sub-section (5) of Section 167 of the Code of Criminal Procedure. Mr. Roy contended that in the instant case the learned Sessions Judge derived that satisfaction on consideration of the case diary and the other materials on record before him and after hearing the parties. So that test as laid down in sub-Section (6) of Section 167 of the Code of Criminal Procedure has been satisfied. In support of his submission. Mr. Roy relied on the two single Bench decisions of this Court in the cases of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Nasima Ranga Rao reported in 1978 CHN 255 and also in the case of Binoy Kumar Ghosh v. The State of West Bengal reported in 1979 (1) CHN 502.
14. Thirdly and lastly, Mr. Roy contended that sub-section (6) of Section 167 of the Code of Criminal Procedure being an indepdnent provision quite independent of sub-section (5) of Section 167 of the Code of Criminal Procedure no time frame should be given by the learned Sessions Judge for submission of charge-sheet. According to him, the framers of the law in their wisdom specified a time limit for submission of the charge-sheet or to complete the investigation of the case under sub-section (5) of Section 167 of the Code of Criminal Procedure but no such time limit has been specified in sub-section (6) of Section 167 of the Code of Criminal Procedure for further investigation and the only test that has been laid down is that the learned Sessions Judge shall satisfy himself "that further investigation in the offence ought to be made."
15. Mr. Himanshu De and Mr. Ranjan Kumar Roy, learned Advocate for the State, adopted the arguments of Mr. Roy.
16. Having heard the learned Advocates for the parties and considering the materials on record, I find substance in the arguments of Mr. Ray for the reasons given hereunder:-
17. Sub-section (5) of Section 167 of the Code of Criminal Procedure, inter alia, specifies the time for completion of the investigation and for submission of the charge-sheet unless the time is extended for further investigation into the offence upon the prayer made by the investigating officer for special reasons and in the interest of justice which prayer should be made during the continuance of the period specified in the sub-section. So sub-section (5) deals with the investigation of the case while sub-section (6) envisages further investigation and not investigation. That power to order further investigation is independent of the power of investigation as contained in sub-section (5) of Section 167 of the Code of Criminal Procedure. The only test that has been laid down for directing further investigation by the Sessions Judge under sub-section (6) of Section 167 of the Code of Criminal Procedure is the satisfaction of the learned Sessions Judge that further investigation into the offence ought to be made. In passing such an order the learned Sessions Judge is required to consider the attending circumstances, the materials on record, the case diary and other allied materials. The only test that has been laid down in sub-section (5) of Section 167 of the Code of Criminal Procedure is that the Magistrate shall satisfy himself "that for special reasons and in the interest of justice the continuation of the investigation beyond the period is necessary". But in sub-section (6) of Section 167 of the Code of Criminal Procedure it is a question of satisfaction of the learned Sessions Judge that further investigation into the offence ought to be made. Because of this difference a time frame has been specified in subsection (5) of Section 167 of the Code of Criminal Procedure but no time frame is contemplated of in sub-section (6) of Section 167 of the Code of Criminal Procedure. If the learned Sessions Judge is satisfied from the materials on record and other attending circumstances that further investigation is to be made into the offence he shall order for the same. Non-specification of the time to complete further investigation of the offence will not render the order illegal as there is no such time limit specified in subsection (6) of Section 167 of the Code of Criminal Procedure. The power under sub-section (6) of Section 167 of the Code of Criminal Procedure is an independent and original power quite independent of the power in revision and in appeal. In revision three parameters are to be satisfied, namely, correctness, legality and propriety of the order of the subordinate Court. No such parameter has been set out in subsection (6) of Section 167 of the Code of Criminal Procedure. This is also not an appellate power because no order either of conviction and sentence or of acquittal is the subject matter of consideration in an order under sub-section (6) of Section 167 of the Code of Criminal Procedure. The cases viz. Superintendent and Remembrancer of Legal Affairs 1978 CHN 255 (supra) and Binoy Kumar Ghosh 1979 (1) CHN 502 (supra) are the authorities on this point. I find no reason to take a different view in this matter from the principle laid down in those two cases on this point.
18. On scrutiny of the record and particularly the order impugned I find that the learned Sessions Judge has specified the reason for directing further investigation into the case. The reason that has been ascribed in that order is that the accused refuse to give his hand-writing before the investigating officer and the case being a case of criminal defalcation against the accused the investigating agency had to hunt for evidence for providing the hand-writing of the accused. That was the reason on which the learned Sessions Judge satisfied himself for directing further investigation into the offence. The reason that has been given by the learned Sessions Judge is for his satisfaction. This Court cannot go into the question of the satisfaction of the learned Sessions Judge because the satisfaction of the learned Sessions Judge is a subjective satisfaction derived from the materials on record before him, including the case diary.
19. From the record it appears that in this case the charge-sheet against the accused has been submitted before the learned S.D.J.M. Howrah on 10-3-1993 and the learned S.D.J.M. Howrah by his Order No. 27 dated 10-3-1993 has taken cognizance on the said charge-sheet.
20. Article 21 of the Constitution of India no doubt enshrines than an accused is entitled to a speedy disposal of the case. But the interest of justice and fair play demands that the offence should be further investigated into on satisfaction of the learned Sessions Judge from the materials on record and other allied materials that the offence should be further investigated into. A separate and independent provision has been made thereafter quite independent of the other provisions in the Criminal Procedure Code that further investigation should be ordered by vacating the order made under sub-section (5) of Section 167 of the Code of Criminal Procedure. The legislators in their wisdom have made this provision for the interest of justice and fair play. So this provision does not militate against or offend the provisions under Article 21 of the Constitution of India. I, accordingly, cannot agree with the submission of Mr. Dutta that where no time frame has been given for further investigation and for submission of the charge-sheet in sub-section (6) of Section 167 of the Code of Criminal Procedure it will violate the provision under Article 21 of the Constitution of India.
21. For the reasons aforesaid, I do not agree with the submissions of Mr. Dutta for interfering with and for setting aside the order passed by the learned Sessions Judge in Criminal Misc. Case No. 574 of 1992, being Order No. 6 dated 2-2-1993. I find no merit in this revision and I accordingly dismiss the revisional application.
22. This judgment shall govern the other case being Criminal Revision No. 716 of 1993.
23. Let the lower Court records be sent down forthwith to the Court below.