Indian Kanoon - Search engine for Indian Law

2. The facts in the Criminal Revision No. 2 of 1991 are more or less similar with certain distinguishing features. There also a truck bearing no. BPR 8911, loaded with coal, while moving towards Calcutta along G. T. Road was stopped near Ranisar More on suspicion by the CISF party and on being asked the driver produced loading advice, road challan-cum-coal bill no. 65586 dated 19-6-87 issued by Manager, Kapasara Colliery in favour of Advisor security HQ ECL, Sanctoria and as per those documents the coal (soft coke) was to be delivered to Advisor security HQ ECL, at Sanctoria for distribution amongst the ECL employees staying at Sanctoria. As per the loading challan the coal should have been unloaded at Sanctoria but the driver after making a criminal conspiracy with others took the truck towards Calcutta and on being intercepted the driver and the khalasi revealed that they were advised to take the coal upto Punjabi More where further challan would be given to take it further and it was learnt that this practice of smuggling of coal with the connivance of Advisor, security HQ ECL, Sanctoria was going on for long and that some ECL employees were also involved in this smuggling ring. On the basis of the written complaint containing the allegations noted above the O.C., Raniganj P.S. recorded the Raniganj P.S. FIR No. 17 dated 20-6-87 under Sections 7(1)(a)(ii) of the E.C. Act and Sections 479/411/120B IPC. Ultimately on completion of investigation police submitted two separate charge-sheets, in this case also, one being charge-sheet no. 93 dated 20-7-89 under Section 7(1)(a)(ii) read with Section 8 E.C. Act, 1955 and Section 120B IPC against 13 accused persons including the present petitioners and the other being charge-sheet no. 94 dated 20-7-89 against the same set of accused persons under Sections 407/408/477A/419 read with Section 120B IPC.

5. The charge-sheet No. 94 dated 20-7-89 submitted in respect of offences punishable under Sections 407/408/477A/419 read with Section 120B IPC has however a different aspect which requires consideration. As we have seen in that case the FIR was lodged under Section 7(1)(a)(ii) of the E.C. Act and Sections 379/411/120B IPC. Sub-section (5) of Section 167 of the Code of Criminal Procedure as substituted by the West Bengal Act 24 of 1988 requires investigation' to be concluded within the specified time limits in respect of different offences mentioned therein and it is provided that if the investigation is not concluded within such time as mentioned therein 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 for special reasons and in the interest of justice that the continuation of the investigation beyond the period mentioned therein is necessary. In the present case, admittedly no such permission was sought for or obtained for continuation of investigation. Since, as we have seen, the FIR in this case was lodged under Sections 379/411/120B IPC and Section 7(1)(a)(ii) of the E.C. Act and since the period prescribed under Section 167(5) Cr.P.C. for conclusion of investigation in respect of the offences under Sections 379/411/120B IPC is two years from the date of arrest of the accused, the period available to the investigating officer for conclusion of the investigation of the case without obtaining any permission of the Magistrate is two years notwithstanding the fact that the period available for investigation in respect of an offence under Section 7(1)(a)(ii) of the E.C. Act,, if considered alone, is only six months. There is no gainsaying that when a composite investigation is commenced and continued in respect of offences under different provisions of law the period available to the investigating officer under Section 167(5) Cr.P.C. for completion of the composite investigation will be the period which is the longest of the different periods available under the said Section 167(5) for the different offences under investigation. That being so, the investigation in this case should have completed within two years from the date of arrest of accused. But as we have seen in this case the charge-sheet was submitted on 20-7-89 being charge-sheet No. 94 i.e., one month after the expiry of the period of two years from the date of arrest of accused, but no permission was taken for continuation of the investigation beyond the prescribed period.

6. In this connection, the learned Advocate for the State submitted that in this case although the FIR was lodged under Sections 479/411/120B IPC yet the charge-sheet after completion of investigation was submitted under Sections 407/408/477A/419 IPC and that the period prescribed under Section 167(5) Cr.P.C. for completion of investigation in respect of those offences is three years and as such the charge-sheet was submitted in that case well within the prescribed period of investigation. The learned Advocate for the petitioner on the other hand submitted that in determining the period applicable for completion of investigation what has to be considered is the allegation made in the FIR and not the allegation made in the charge-sheet. In my opinion, the submission of the learned Advocate for the petitioner in this respect is correct. Section 167(5), so far as stopping of investigation is concerned, comes into play and has to be given effect at a stage when the investigation has not yet been concluded. Therefore at the stage when Section 167(5) has to come up for consideration in connection with the question of stopping of investigation, the investigation not yet having been concluded, the end product of the investigation will be unknown and rather a matter of speculation or guess at that stage. Therefore, there is no question of taking an unknown factor into consideration at the stage when Section 167(5) is required to be invoked for imposing stoppage of investigation. Consequently at that stage only the allegations made in the FIR are to be considered for determining the prescribed period applicable in the particular case for conclusion of investigation. There is no doubt that it may so happen that during the investigation in respect of an offence alleged in the FIR certain facts and materials may transpire to the investigating officer indicating or reasonably giving rise to a suspicion that some other graver offence not mentioned or indicated in the original FIR for which a longer period of investigation has been prescribed under Section 167(5) than the period prescribed for the offence originally mentioned in the FIR, has been committed. In that case the investigating officer has an option to apply to the Magistrate, as is at times done, to add certain new section or sections in the FIR for investigation and in that event if the Magistrate, on consideration, allows the prayer for addition of any new section in the FIR the investigating officer would get the benefit of the period prescribed for conclusion of investigation in respect of such newly mentioned offence if such period is longer than the prescribed period applicable to the investigation for the offence originally recorded in the FIR. But in the present case, no, such prayer for addition of any new section in the FIR was made before expiry of the prescribed period applicable to the investigation for the offences originally mentioned in the FIR. That being so, the investigation should have been concluded within two years on the basis of the allegations made in the FIR. Such a course not having been adopted it is not tenable now to argue that although the investigation could not be concluded within the longest period prescribed for offences mentioned in the FIR yet the charge-sheet ultimately submitted relates to certain offences for which a longer period is available for conclusion of investigation and the charge-sheet has been filed within that period. Now the question is whether the cognizance taken by the learned Magistrate upon the charge-sheet submitted after the expiry of the period applicable to the case for completion of investigation under Section 167(5) on the basis of the investigation which was continued, without the permission of the learned Magistrate, beyond the prescribed period applicable to the case is bad in law and the proceeding is liable to be quashed for that reason.

11. In the result for reasons elaborately discussed above, the proceedings which were started and which are continuing on the basis of the impugned charge-sheet Nos. 61 and 93, both dated 20-7-89 under the Essential Commodities Act are hereby quashed and the proceedings continuing on the basis of the charge-sheet No. 94 dated 20-7-89 under Sections 407/408/ 477A/419 read with Section 120B IPC is also hereby quashed. The proceedings continuing on the basis of the charge-sheet no. 62 dated 20-7-89 under Sections 407/408/468/471/477A/419 read with Section 120B IPC however do proceed in accordance with law. The revisional applications stand disposed of accordingly.