Calcutta High Court
Sashi Bhusan Mahapatra vs State Of West Bengal [Alongwith C.R.R. ... on 17 May, 2007
Equivalent citations: (2007)3CALLT36(HC), 2007(3)CHN411
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
JUDGMENT Debiprasad Sengupta, J.
1. A Division Bench has referred the present revisional applications, in which common question of law is involved, to reconsider the earlier Special Bench decision of this Court in the case of Saktisadhan Majhi and Ors. v. State of West Bengal, reported in 1994 Calcutta Criminal Law Reporter (Calcutta) 137, in the light of Supreme Court decision in State of West Bengal v. Falguni Dutta, reported in 1993 Calcutta Criminal Law Reporter (SC) 123. The question relates to the interpretation of Section 167(5) of the Code of Criminal Procedure as amended by the State of West Bengal (West Bengal Act XXIV of 1988), which came into force with effect from 2nd May, 1989.
2. The amended provision of Section 167(5) of the Amendment Act of 1988 reads as follows:
(5) If in respect of-
(i) any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months, or
(ii) any case exclusively triable by a Court of Sessions or a case under Chapter XVIII of the Indian Penal Code (45 of 1860) the investigation is not concluded within a period of three years, or
(iii) any case other than those mentioned in Clauses (i) and (ii) the investigation is not concluded within a period of two years from the date on which the accused arrested or made his appearance.
The Magistrate shall make an order stopping further investigation into the offence and shall discharge the accused unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the periods mentioned in this Sub-section is necessary.
3. In the case of Saktisadhan Majhi (supra) two points, which fell for consideration, were as follows:
(1) Whether Sub-section (5) of Section 167 of the Code had any retrospective operation and would govern all investigations initiated even before the commencement of the said amendment, and (2) Whether taking cognizance of an offence on the basis of an investigation, which continued beyond the statutory period or on the basis of the chargesheet beyond the statutory period and subsequent trial thereafter, would be bad in law. It was held in the case of Saktisadhan Majhi (supra) that the amended provision of Sub-section (5) of Section 167 would not have any retrospective operation and it would not apply to investigations already concluded before the amending provision came into force, but it would apply to the investigation initiated before but not concluded and thus pending on the date on which the amendment came into force. As regards cognizance of offence and trial thereafter on the basis of investigation carried out and chargesheet submitted beyond the statutory period, it was held by the Special Bench that if such investigation is continued beyond the period and chargesheet submitted thereafter, without any order of the Magistrate under Sub-section (5) or from the Sessions Judge under Sub-section (6) of Section 167, taking cognizance of offence on the basis of such chargesheet would be bad and void.
4. The Referee Bench was of the view that the Special Bench decision in the case of Saktisadhan Majhi (supra) should be reconsidered as the earlier Special Bench had no opportunity or occasion to deal with the judgment of the Hon'ble Apex Court reported in 1993 Calcutta Criminal Law Reporter (SC) 123 (State of West Bengal v. Falguni Dutta). In the said judgment of the Hon'ble Supreme Court it was held that the Special Court (under the Essential Commodities Act) can stop further investigation into the offence if the investigation is not concluded within a period of six months, since the case is triable as a summons case, from the date of arrest of the accused person unless for the special reasons and in the interest of justice, the continuation of such investigation beyond the statutory period is necessary. The case of Falguni Dutta was a case under the previous Code as it stood prior to West Bengal amendment and it was continued in summons cases where the time limit was confined to a period of six months.
5. In the case of Falguni Dutta (supra) it was held by the Hon'ble Apex Court that the investigation done within the statutory period of 6 months from the date of arrest of the accused persons is not rendered invalid merely because the investigation is not completed and further investigation is stopped. There is nothing in Sub-section (5) of Section 167 of the Code that if the investigation is not completed within the time limit, the Officer-in-Charge of the police station will be absolved from the responsibility of filing police report under Section 173(2) Cr. PC on the stoppage of investigation. The Special Court is competent to entertain the police report restricted to six months investigation and to take cognizance of the offence on the basis thereof.
6. It may be mentioned here that the judgment in the case of Saktisadhan Majhi (supra) was challenged in the Hon'ble Supreme Court and the same was set aside by the Apex Court keeping in view the judgment in the case of State v. Falguni Dutta (supra). The said judgment is reported in 1998 Cal. Cr. LR (SC) 283 (State of West Bengal v. Saktisadhan Majhi). So, the judgment in the case of Saktisadhan Majhi having been already set aside the legal position is no longer res integra to be considered by this Court.
7. The main question which is to be answered in the present reference is whether investigation continued beyond the statutory period as provided under Section 167(5) of the Code of Criminal Procedure, would be rendered invalid and whether cognizance of offence taken on the basis of the chargesheet submitted beyond the statutory period, would be bad in law.
8. The same question came up for consideration before the earlier Special Bench of this Court in the case of Kalyan Kumar Das v. State of West Bengal, reported in 1998(2) CHN 136. In paragraph 8 of the said judgment it was held as follows:
We do not see anything under Section 167(5) of the Code to suggest that if the investigation has not been completed within the period allowed in that section, the Officer-in-Charge of police station can be considered to be absolved of his responsibility and liability in filing the police report under Section 173(2) of the Code on the stoppage of such investigation. If therefore the responsibility of filing the report under Section 173(2) of the Code remains, it follows as a consequence that the cognizance has to be taken of such a report by the Magistrate, irrespective of the fact whether the investigation was stopped at the end of six months period. If therefore the Magistrate is bound to take cognizance of such a police report, the question which arises for consideration is as to whether the material collected in the course of such investigation till it was stopped by order of the Magistrate can be considered by the Court to decide whether the accused is to be tried or not.
9. It was further held in the said judgment that the materials gathered during investigation at least within the statutory period as provided in Section 167(5) of the Code, i.e. prior to the stoppage of investigation, shall be relevant for the purpose of deciding whether there is any basis or evidence to connect the accused with the commission of the offence and whether cognizance can be taken on the basis of such materials. The majority view of the Special Bench was that discharge of an accused on the expiry of the statutory period is not automatic.
10. In our considered view the law on this point is now settled by the Hon'ble Supreme Court in the case of Nirmal Kanti Roy v. State of West Bengal, reported in 1998 Calcutta Criminal Law Reporter (SC) 216. In paragraph 7 of the said judgment it was held by the Hon'ble Apex Court as follows:
The order stopping further investigation into the offence and the consequential order of discharge are not intended to be automatic sequel to the failure to complete investigation within the period fixed in the subsection. The succeeding words in the Sub-section confer power of the Court to refrain from stopping such investigation if the Investigating Officer satisfies the Magistrate of the fusion of two premises (1) that in the interest of justice it is necessary to proceed with the investigation beyond the period shown in the Sub-section and (2) that there are special reasons to do so.
11. It was further held by the Hon'ble Apex Court in paragraph 8 of the said judgment as follows:
Hence we take the view that the time schedule shown in Section 167(5) of the Code is not to be treated with rigidity and it is not mandatory that on the expiry of the period indicated therein the Magistrate should necessarily pass the order of discharge of the accused. Before ordering stoppage or investigation the Magistrate shall consider whether, on the facts of that case, further investigation would be necessary to foster interest of criminal justice. Magistrate at that stage must look into the record of investigation to ascertain the progress of investigation thus for registered. If substantial part of investigation was by then over, the Magistrate should seriously ponder over the question whether it would be conducive to the interest of justice to stop further investigation and discharge the accused.
12. After hearing the learned Advocates of the respective parties and after taking into consideration the judgments of the Hon'ble Apex Court referred to above, we dispose of the present reference keeping in view the judgment of the Hon'ble Apex Court reported in 1998 Calcutta Criminal Law Reporter (SC) 123 (Nirmal Kanti Roy v. State of West Bengal). We are of the view that before passing any order of stoppage of investigation for non-completion of investigation within the statutory period as envisged in the Sub-section (5) of Section 167 of the Code of Criminal Procedure as amended by the West Bengal Amendment Act of 1988, it is the duty of the Magistrate to look into the records of investigation done during the statutory period along with extended period to ascertain the progress of investigation and thereafter he will pass appropriate order. If after exarnining the records of investigation, the Magistrate is satisfied that there are sufficient materials for taking cognizance of the offence, he will pass appropriate order to that effect. Order for stoppage of investigation and discharge of accused by the Magistrate without applying his mind, would be improper.
13. Present reference is answered accordingly.
14. In conclusion, we express our gratitude to Mr. Bagchi and Mr. Safiullah for the assistance they have given to us.
15. All revisional applications shall, accordingly, be placed before the appropriate Bench for disposal in terms of the judgment of this Court.
Amit Talukdar, S.K. Gupta, Ashim Kumar Roy and Partha Sakha Datta, JJ.
16. We agree.