PRABHU NATH SINGH v. STATE OF WEST BENGAL — 1992 DIGILAW 222 (CAL)

MUKHERJI, J. ( 1 ) THIS revisional application seeks to quash a proceeding under section 302/34, Indian Penal Code pending against the petitioner arising out of South Port Police Station Case No. 24 dated 25/1/1987. The petitioner is facing a trial Sessions Case No. 15 (1) of 1991, before the learned Additional Sessions Judge, 11th Court, Alipore. The prosecution allegation is that on 25/1/1987 at about 5 a. m. , 4/5 persons including the present petitioner in furtherance of their common intention to murder Ram Singh, husband of Smt. Arati Singh, assaulted him by means of brick bats, cemented slabs and other hard substances on the Road between Line No. 10 and 14 New Basra Line, Calcutta-43, as a result of which the said Ram Singh sustained multiple injuries on his person and expired at about 9 a. m. on the same day. The petitioner was, however, identified in the Test Identification Parade by the said Smt. Arati Singh. The petitioner, however, takes a plea that subsequent to his surrendering before the learned Sub-Judicial Magistrate, Alipore, the Investigating Officer had shown him to the said Smt. Arati Singh and as such it was possible for her to identify the petitioner in the Test Identification Parade. It may be recalled, however, that since May 21, 1987, the petitioner was on bail, anticipatory bail have been earlier granted to him by the learned Sessions Judge. ( 2 ) THE point taken by the learned Advocate for the petitioner is that even though the petitioner was present before the learned Magistrate on 25/3/1988, 14/9/1988, 19/4/1989, 1/12/1989 and 28/6/1990, on each occasion the Investigating Officer prayed for time to submit the charge-sheet and time was granted by the learned Magistrate more or less as a routing affair. The learned Magistrate did not pass any order stopping further investigation. He also failed to discharge his due duty as enjoined in law by not discharging the accused under section 167 (5) of the Code of Criminal Procedure, 1973, taking in view the Code of Criminal Procedure (West Bengal Amendment) Act, 1988 i. e. West Bengal Act. XXIV of 1988 which was published in the Calcutta Gazette on 14/3/1990 and came into operation on and from 2/5/1989. XXIV of 1988 which was published in the Calcutta Gazette on 14/3/1990 and came into operation on and from 2/5/1989. The Investigating Officer did not do anything on 28/6/1990 to satisfy the learned Magistrate that for special reasons and in the interest of justice, continuation of the investigation beyond the period prescribed in the statute was necessary and the learned Magistrate also did not express in his order passed on that for special reasons and in the interest of justice the continuation of the investigation beyond the period mentioned in the statute was necessary. As per amended provision of section 167 (5) of the Code of Criminal Procedure as- it stood amended by the West Bengal Act XXIV of 1988, the investigation has to be concluded within a period of three years as otherwise the learned Magistrate shall make an order stopping further investigation into the offences and shall discharge the accused. The petitioner as such was entitled to be discharged from the case on the expiry of three years from the date of his first appearance. ( 3 ) IT appeared from the record that the report under section 173 of the Code of Criminal Procedure was submitted by Police on 7/9/1990 and the learned Magistrate took cognizance on that date and by an order dated 28/12/1990 committed the case to the Court of Sessions. ( 4 ) THE learned Advocate for the petitioner submitted before us a Division Bench judgment of our Court in Jay Sankar Jha v, The State1 which was a case of an investigation being continued beyond six months in a summons case. The petitioner in that case was arrested on September 3, 1976 and was granted bail on September 4, 1976. The Investigating Officer prayed for time on different dates for completing the investigation and ultimately challan was submitted against the petitioner on 27. 6. 1977. There was a routine prayer made by the Investigating Officer by way of filing application that the investigation of the case was in progress and the accused may be remanded to a certain date for further investigation. The learned Judges of the Division Bench held that it was wholly insufficient to meet the statutory requirement for continuation of the investigation beyond the period of six months. The learned Judges of the Division Bench held that it was wholly insufficient to meet the statutory requirement for continuation of the investigation beyond the period of six months. It was found in the facts of the said case by the Division Bench that as no attempt was made by the Officer making the investigation to satisfy the Magistrate as required by section 167 (5) of the Code of Criminal Procedure, the Magistrate was bound to make an order stopping further investigation into the offence. The continuation of the investigation thus, beyond the period of six months was in contravention of law and was illegal and the cognizance taken by the Magistrate was bad in law and the subsequent proceeding was without jurisdiction. It was observed by the Division Bench that it could not be said that by asking the Investigating Officer to expedite investigation and by taking cognizance after the expiry of the period of six months, the Magistrate has impliedly allowed the continuation of the investigation. In the view of the Division Bench, the Magistrate has no such competence the investigation beyond the period of six months, could only continue if the conditions laid down in section 167 (5), Cr. P. C. were fulfilled. ( 5 ) IN Utpalendu Mahato v. The State and Anr2, a similar question arose when in a case under section 304-A, I. P. C. the learned trial Judge overruled the contention of the accused that there was manifest illegality in the investigation being carried out beyond a period of six months and the charge-sheet being submitted on 19. 11. 1976 when the accused was initially produced before the learned Magistrate on 22. 3. 1976. There was nothing appearing from the record to disclose that the learned Magistrate made any order stopping further investigation into the offence on the expiry of six months from the date of the arrest of the accused and there was also, conspicuously enough, no prayer of the Investigation Officer before the learned Magistrate for extension of the said period. No prayer under section 167 (6), Cr. P. C. also appeared to have been made before the learned Sessions Judge and in that view, the Division Bench held that it was a case where the proceedings ought to be quashed. Reasons as given by the learned Sessions Judge that. No prayer under section 167 (6), Cr. P. C. also appeared to have been made before the learned Sessions Judge and in that view, the Division Bench held that it was a case where the proceedings ought to be quashed. Reasons as given by the learned Sessions Judge that. the accused submitted to the jurisdiction by not raising any objection on the very date the charge- sheet was submitted and hence, was not empowered to turn round and object to the continuance of the proceedings, was also rejected by the Division Bench holding inter alia, that since there was non-compliance with the mandatory provisions of section 167 (5), Cr. P. C. which would render the charge-sheet to be without jurisdiction and since cognizance could not be taken on such a chargesheet, the proceeding in furtherance of the chargesheet ought to be held to be bad. It was not a mere irregularity but it struck at the root question of jurisdiction which went to vitiate the enure proceeding so as to render it to be a nullity and without any foundation. The conviction and sentence were also set aside accordingly. ( 6 ) WE are conscious of the legislative intention in this regard of having speedy investigation. We are conscious of the constraints the Investigating Officer has to face specially in a case of murder where he has to wait for an inordinately-long period for the expert opinion and report of Forensic Science Laboratory and even the post-mortem report even though he has done the examination of the witnesses so as to find out the culpabality of the accused within the normal time stipulated. ( 7 ) IN the present case, however, there is some distinguishing featury of its own from the other two reported decisions cited herein before. There was no duty on the part of the Investigation Officer on 23/3/1988, 14/9/1988, 19-1989 and 15/12/1989 to conform to the amended provisions of section 167 (5),cr. P. C. to pray for extension of time for submission of the charge-sheet, even though we find from the order-sheet itself that the learned Magistrate granted such time as prayed for in a routine manner. On those dates, however amended provisions of section 167 (5), Cr. P. C. to pray for extension of time for submission of the charge-sheet, even though we find from the order-sheet itself that the learned Magistrate granted such time as prayed for in a routine manner. On those dates, however amended provisions of section 167 (5), Cr. P. C. by virtue of West Bengal Act XXIV of 1988 did not come into operation i. e. by virtue of expiry of a period of three years from the date of appearance of the accused. Thus 28/6/1990. was the first date beyond the period of three years and a date after the amended provisions of section 167 (5), Cr. P. C. came into operation. The learned Magistrate however, recorded in the background of the prayer for time being made before him by the Investigating Officer that the prayer stood allowed and ultimately we find that it was on 7/9/1990 that the charge-sheet was actually submitted. ( 8 ) AN argument was advanced before us by the learned Advocate for the State that what the learned Magistrate did was on a prima facie satisfaction in the background of the prayer made by the Investigating Officer for extension of time. We have examined the prayer that was made before the learned Magistrate by perusing the petition. Nowhere any special reason was mentioned by the Investigating Officer. The language of the Statute is that after the expiry of the stipulated period and in the present case after the expiry of a period of three years from the date of arrest or of appearance of the accused if the investigation is not concluded within this period of three years the learned Magistrate shan make an order stopping further investigation into the offence and shall discharge the accused unless the Officer making investigation satisfies the learned Magistrate that for special reasonst and in the interest bf justice, the continuation of the investigation beyond the period is necessary. Nowhere did we find any special reasons mentioned by the Investigating Officer in the four comers of the petition. Even before the period of expiry of three years no such specific prayer was made on an earlier date. There was also no due application of mind by the learned Magistrate in passing a speaking order. Nowhere did we find any special reasons mentioned by the Investigating Officer in the four comers of the petition. Even before the period of expiry of three years no such specific prayer was made on an earlier date. There was also no due application of mind by the learned Magistrate in passing a speaking order. In the present circumstances, we cannot read into the order passed by the learned Magistrate any satisfaction so recorded by him for special reasons and we cannot also spell out that for the ends of justice he was so satisfied by way of granting any time, We are quite conscious of the fact that the learned Magistrate prior to taking of cognizance is passing some-what an administrative order but in view of the specific language of the Statute, we cannot presume that the order passed on 28/6/1990 is a valid one. In that view of the matter, we have no other alternative but to quash the proceedings even though we are conscious of the fact that it is a case of murder. We do hope that the. Investigating Officers should be made conscious of their duties by virtue of the incorporation in the Statute of the legislative intent in having a speedy investigation. In case the investigation is not concluded in time within the stipulated period as prescribed by the statute, the mandate of the Statute has to be complied with by the Investigating Officer in giving out special reasons to the Satisfaction of the learned Magistrate concerned, before the expiry of the statutory period and the learned Magistrate, regard being had to the interests of justice in altering a continuation of the investigation has to apply his mind on the special reasons which are to be recorded in a speaking order and only on adhering to this mandate can he exercise his discretion in appropriate cases. Unfortunately, that not having been done in the present case, we arc constrained to hold that the intention of legislature has grossly been violated culminating in quashing of the proceedings. This revisional application stands allowed. ( 9 ) IN the result, the proceedings stand quashed and the present petitioner is discharged. Let the accused be discharged from the bail bond. Revision allowed.