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Kalyan Kumar Das vs The State Of West Bengal on 13 July, 1998 cites

State Of West Bengal vs Falguni Dutta And Another on 5 May, 1993

45. In the case involved in the criminal revision 668/92 the accused surrendered before the Special Judge, B.C. Court and was granted bail by such court, but the investigation was not completed within six months thereafter nor was any charge-sheet submitted and the accused filed an application after a lapse of one year for discharge under section 167(5) Cr.PC when no charge-sheet had yet ben filed. The learned Special Judge heard that application in presence of the learned Advocate for the State as well as the learned Advocate for the accused both of whom also addressed him during the hearing. The objection to the application under section 167(5) that was taken before the learned Special Judge on behalf of the State was that section 167(5) would not apply in a proceeding under section 7(1)(a)(ii) of the E.C. Act before the Special Judge empowered under the said Act to try such case according to the summary procedure as a summons-case. The learned Special Judge however did not accept that contention raised on behalf of the Stale and held that section 167(5) Cr.PC would apply even to such a proceeding. In this rcvlslonal proceeding before the High Court against that order the dcfacto-complalnant raised two points, one in the original revlslonal application and the other in the supplementary affidavit filed in this revistonal proceeding. These two points are (1) that section 167(5) Cr.PC does not apply to the proceeding before a Special Judge, E.G. Act in respect of an offence punishable under section 7(1)(a)(ii) E.C. Act, and (2) since the accused surrendered before the Special Judge and was not arrested, section 167(5) would not apply in the case. As regards the first point of objection it has since been held in the decision in Falgun Dutta (supra) by the Supreme Court that section 167(5) Cr.PC applies also to a proceeding before the Special Court tinder E.C. Act in respect of an offence punishable under section 7(1)(a)(ii) of the Act. As regards the other point as to whether an accused who is not arrested, but who surrenders before the court during the continuance of the investigation would be entitled to the benefit of section 167(5), the language of the West Bengal Amendment is so clear that if leaves no scope for any confusion in the matter. In the West Bengal Amendment of section 167(5) the relevant expression is 'from the date on which the accused was arrested or made his appearance'. Therefore the sub-section itself envisages not only a case where the accused is arrested but also a case where an accused makes his appearance before the court by surrendering in the court. Consequently section 167(5) obviously applies to this case.
Supreme Court of India Cites 21 - Cited by 33 - A M Ahmadi - Full Document

Bhagwant Singh vs Commissioner Of Police, Delhi on 6 May, 1983

48. The question of giving any notice or opportunity of hearing to the first informant at that stage also does not arise in a case where the Magistrate is exercising his Jurisdiction under section 167(5). It is true that in view of the decisions of the Supreme Court in Bhagwant Singh v. Commissioner of Police, , Union Public Service Commissioner v. S. Papaloh, JT 1997 (8) SC 24. RupanDeolBazazv. KPSGIU, 1996 Cr.LJ 381 the Magistrate is required to give notice and hearing to the first informant where he decides not to proceed against an accused, but it has also to be noticed from a reading of those decisions that the question of giving notice and hearing to the first informant only arises when the Magistrate on receipt of police report under section 173(2) considers the question of taking cognizance thereon and decides to drop the proceeding as a whole or against some persons mentioned in the first information report. Those decisions of the Supreme Court have no application to a situation where no police report or charge-sheet has yet been submitted, in all those cases the Supreme Court was considering the question whether on receipt of police report the first informant should be given notice and hearing if the Magistrate decides not to proceed against the accused.
Supreme Court of India Cites 10 - Cited by 374 - R S Pathak - Full Document

Durgesh Chandra Saha vs Bimal Chandra Saha And Others on 23 November, 1995

47. It is also the inescapable conclusion emerging from the object and language of the section 167(5) and the relevant Supreme Court decisions that the order for stopping the investigation and discharging the accused is a composite one-stage or same-stage order. It is not that at one stage the Magistrate will Just pass an order stopping the investigation and will thereafter at a subsequent stage pass an order of discharge of accused under section 167(5). It is also not at all envisaged by section 167(5) that while the Magistrate may pass an order stopping investigation, he will yet have the liberty not to pass an order of discharge of accused under section 167(5) or to refuse discharge insplte of stopping the investigation. If an order stopping investigation is warranted under section 167(5) it cannot be consciously deferred as that will amount to a conscious act of frustrating the letter and spirit of the legislative mandate and the purpose behind it, nor can the Magistrate say that 'I will stop the investigation but, shall not discharge the accused at the same '. Stopping of investigation and discharge of accused cannot be split up and treated as two phases of a phenomenon, far less as two independent phenomena of section 167(5). "They must go hand in hand. 'Discharge' envisaged in sub-section (5) is not a discharge on merit but is a statutory discharge on the fulfilment of the conditions mentioned therein and is an inseparable projection of the statutory consequence of stopping of investigation. To say that even after stopping the investigation under sub-section (5) the Magistrate will have to yet consider subsequently and separately whether an order of discharge is warranted and may even refuse discharge under the said sub-section on consideration of merit insplte of stopping of investigation is a proposition which will not only be contrary to the letter and spirit of the sub-section but will also be inconsistent with the import of the observation of the Supreme Court in Paragraph 8 of the decision in Durgesh Chandra v. Bimal Chandra 1996 Cr LJ 1137 which I have quoted earlier where the Supreme Court has recorded that'......... section 167(5) Cr.PC as amended is intended to ensure speedy completion of investigation within the time frame specified therein, otherwise to face an order of discharge of the accused ......'
Supreme Court of India Cites 11 - Cited by 21 - Full Document

Abhinandan Jha & Ors vs Dinesh Mishra(With Connected Appeal) on 17 April, 1967

17. There is still another angle to the aforesaid view which we have taken. Even though under the scheme of the Code, a Magistrate has not power, expressly or impliedly conferred upon him by the Code, to call upon the police to submit a charged-sheet when the police has sent a report under section 169 of the Code that no case is made out against the accused for sending him up for a trial, yet the law does not certainly cast any obligation on the Magistrate to accept such a report, if he does not agree with the opinion formed by the police. In such a situation if the Magistrate suspects that an offence has been committed by the accused and that the police has not acted properly, not-withstanding the aforesaid referred opinion of the police, the Magistrate is entitled to take cognizance under section 190(1)(c) of the Code. Such a provision is intended to ensure that an offender is not allowed to go scot free and that justice is done. It therefore follows that a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commissioning the offence from a third party but also where he has knowledge or even suspicion that the offence has been committed. The following observations of the Supreme Court in the case of Abhinandan Jha & Ors. v. Dinesh Mishra are pertinent:--
Supreme Court of India Cites 44 - Cited by 586 - C A Vaidyialingam - Full Document
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