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1994 DIGILAW 163 (CAL)

Hari Lal Show v. State

1994-05-06

ARUN KUMAR DUTTA

body1994
JUDGMENT 1. Both the parties are represented by their respective learned Counsels, who have been heard at length. 2. The instant Revisional Application by the Petitioners-accused (hereinafter referred to as accused) is directed against the order dated 27th May, 1993 passed by the learned Additional Sessions Judge, 4th Court, Howrah in Sessions Trial No.7 of January, 1992 before him, arising out of Malipanchghora Police Station Case No. 25 dated 28.2.1988, rejecting their application for their discharge under section 167 (5) of the Code of Criminal Procedure (hereinafter referred to as Code) for the reasons recorded therein. 3. The aforesaid case arose out of an FIR lodged by one Tarak Nath Kaley on 28th February, 1988 against the accused for alleged offences punishable under Ss. 147, 148, 338, 341, 326, IPC, read with s. 9(b) of the Indian Explosives Act, on the allegations made therein. The accused-Petitioners Nos. 1 and 3 had been produced under arrest before the Court on the following day on 29th February, 1988 in connection therewith. The Investigating Officer of the case had drawn up chargesheet on 4th April, 1991 after completion of investigation, which was received by the office of the Sub-Divisional Judicial Magistrate (for short SDJM) at Howrah on 2nd May, 1991, and put up before him on 11th May, 1991. The learned SDJM had thereupon committed the case to the Court of Sessions at Howrah as the offence alleged was exclusively triable by the Court of Sessions. The learned Additional Sessions Judge had thereupon framed charge against the accused on 1st June, 1992 for offences punishable under s. 304, read with s. 34, IPC, finding the case for trial thereafter. The accused had thereafter filed an application before the learned Sessions Judge on 15th March, 1993 for discharging them from the case under amended provisions of s. 167(5) of the Code, which was rejected by him by his impugned order dated 27th May, 1993 for the reasons recorded therein. Hence the instant Revisional Application. 4. As already indicated above, the relevant case was started on 28th February, 1988 on the FIR lodged by one Tarak Nath Koley, whereupon the accused-Petitioners Nos. 1 and 3 had been produced under arrest before the Court on the following day on 29th February, 1988. Hence the instant Revisional Application. 4. As already indicated above, the relevant case was started on 28th February, 1988 on the FIR lodged by one Tarak Nath Koley, whereupon the accused-Petitioners Nos. 1 and 3 had been produced under arrest before the Court on the following day on 29th February, 1988. Undeniably, the investigation of the relevant case had not been concluded within the period specified (three years) by the amended provisions of s. 167 (5) of the Code which had come into force with effect from 2nd May, 1989. The learned Judge in his impugned order has himself recorded that the I.O. could not complete the investigation within the specified period and there was a delay for about two months in submission of chargesheet by him in the relevant case. As held by the Special Bench of this Court in Saktisadhan Majhi & Ors. vs. The State, 1994 C.Cr.LR. (Cal) 137: (1993)2 Cal HN 154, the new sub-so (5) inserted by the West Bengal Amendment Act, 1988 shall apply to all investigations initiated before but not concluded and thus pending on the date of such commencement (i.e. 2.5.89). The Special Bench had clearly held that cognizance of offence and trial thereof on the basis of investigation carried on and chargesheet submitted beyond the period fixed under s. 167 (5) without any order from the Magistrate under that sub-section or from the Sessions Judge under sub-s. (6) are bad and void. As already indicated above, the investigation of the relevant case had been carried on and chargesheet had been submitted therein beyond the period fixed under the aforesaid S. 167 (5) of the Code, and no step appears to have been taken by the Investigating Officer to satisfy the Magistrate within the, aforesaid specified period that for special reasons and in the interest of justice the continuation of the investigation beyond the period specified therein was necessary. In view of the aforesaid decision of the Special Bench there could be no mistaking that the cognizance of the offence and trial thereof are bad and void. 5. Realising the difficulty, the learned Advocate for the Opposite-Party-State had sadly sought to refer to the decision of the Supreme Court in the State of West Bengal vs. Falguni Dutta & Anr., 1993 C.Cr.L.R. (SC) 123, in support of his contention that the cognizance of the offence and trial thereof would not be vitiated. 5. Realising the difficulty, the learned Advocate for the Opposite-Party-State had sadly sought to refer to the decision of the Supreme Court in the State of West Bengal vs. Falguni Dutta & Anr., 1993 C.Cr.L.R. (SC) 123, in support of his contention that the cognizance of the offence and trial thereof would not be vitiated. But to that I would at once note with a minute of dissent that the Supreme Court in the aforesaid decision had dealt with the provisions of S. 167 (5) of the Code of Criminal Procedure, 1973 as it stood prior to the West Bengal Amendment Act of 1988. The said decision, on the face of it, would not clearly be applicable to the instant case where the amended provisions of S. 167 (5) of the Code would be applicable. It would be pertinent to note, in this context, that while S. 167(5) of the Central Code had only provided for "an order stopping further investigation into the offence s. 167(5), as substituted by the West Bengal Amendment Act, 1988 has gone a step further by providing in express words that on such stoppage of investigation, the Magistrate shall discharge the accused." Under the West Bengal Law, therefore, discharge of the accused must follow as a matter of course once an order is made stopping the investigation. After the West Bengal Amendment Act, there would be no scope thereunder to follow the course suggested in Hussinara Khatoon's case of filing a chargesheet after the stoppage of the investigation. Even most charitably assuming for the sake of argument that the aforesaid decision of the Supreme Court in Falguni Dutta's case would be applicable to the instant proceedings before us, there is nothing either on record to indicate that the chargesheet in the relevant case had been submitted by the Investigating Officer on the basis of the evidence and materials collected by him within the period specified in the amended provisions of s. 167 (5) of the Code. 6. 6. Upon the premises above, the learned Additional Sessions Judge appears to have gone grievously wrong in rejecting the application by the accused for the discharge under the amended provisions of s. 167 (5) of the Code, by passing the impugned order for the reasons recorded by him, the way he did, the cognizance of the alleged offence and the trial thereof being clearly bad and void in view of the aforesaid decision of the Special Bench of this Court. 7. In the result, the Revisional Application should clearly succeed, as it must. The same is allowed as such. The impugned order passed by the Learned Addl. Sessions Judge be hereby set aside, and the relevant proceedings be quashed. The Petitioners-accused be discharged from their Bail Bonds, if on Bail. Revisional application allowed. Proceedings quashed.