Omraomal Goyal v. State of West Bengal — 1996 DIGILAW 445 (CAL)

Judgment A. B. Mukherjee, J. 1. An Application under s. 482 Cr. P.C. has been made with a view to quash Special Court Case No. 15 of 1994 arising out of Bhaktinagar Police Station Case No. 165 of 1994 dated 2.3.94 under s. 7(1)(a)(ii) of the Essential Commodities Act of 1955 as also under s. 8 of the Anti Profiteering Act. 2. The petitioner figures as an accused in the aforesaid criminal case. The facts leading to the institution of criminal case in short is that on 1.4.94 the Enforcement Officers, Jalpaiguri made a search of a godown in the premises of Nababharat Flour Mill and accordingly they instituted the aforesaid criminal case. Simultaneously, police also arrested two persons, namely, Basudev Agarwal and Suresh Sharma being employees of the said Mill on 1.8.94. An F.I.R. was made on 2.8.94 giving rise to the criminal proceeding. 3. On 12.8.94 the present petitioner got an order of anticipatory bail, it is alleged that there are no ingredients of the offences alleged. The further allegations is that the investigation ought to have been completed within six months from the date of arrest of two of the accused, namely, 1.8.94 but the investigation continued beyond the period of six months without any extension having been granted by the concerned Court and as such in accordance with s. 167 (5) Cr. P.C. as amended by West Bengal Amendment Act 24 of 1988 which came into force on and from 2.5.89 continuance of investigation beyond the statutory period is bad in law and as such cognizance taken on the basis of a belated charge sheet is also bad. Accordingly, the petitioner has prayed for quashing of the said proceeding pending before the Judge, Special Court. 4. I have heard the submissions made by the Ld. Advocates representing the petitioner and also opposite party being the State of West Bengal. The Ld. Advocate representing the petitioner apart from drawing my attention to the West Bengal Amendment of s. 167(5) Cr.P.C. has also taken me through several decisions in support of his contention that investigation cannot continue beyond the statutory period without specific order by the concerned Magistrate or Court following an application to that effect by the investigating officer. The Ld. Advocate representing the petitioner apart from drawing my attention to the West Bengal Amendment of s. 167(5) Cr.P.C. has also taken me through several decisions in support of his contention that investigation cannot continue beyond the statutory period without specific order by the concerned Magistrate or Court following an application to that effect by the investigating officer. It has been argued that it is incumbent for the investigating officer to satisfy the Magistrate or the Court as the case may be that for special reasons and in the interest of justice continuation of the investigation beyond the period mentioned in the amended section is necessary. He has also argued on the strength of several decisions that such a prayer is to be made by the investigating officer and permission if any by granting extension of time is to be given by the concerned Court by means of speaking order before the statutory period is over. 5. On the other hand, the Ld. Advocate representing the O.P. contended that one of the accused in the said criminal proceeding earlier invoked the revisional jurisdiction of this Court and raised similar defence in support of his prayer for quashing the instant criminal proceeding being Criminal Revision No. 392 of 1995 which was dismissed on merit by one of the Ld. Judges of this Court, namely, Shri S.K. Tewari-J. Accordingly, he has argued that the same question cannot be re-agitated before this Bench. 6. In order to repudiate this contention the Ld. Advocate for the petitioner while admitting the factual aspect has raised legal objections and asserted that the said judgement being a decision "Per Incuriam", this Bench cannot place any reliance on the same. He has relied on a number of decisions on this point. The decision reported in AIR 1987 SC 1073 lays down that the ratio of any decision must be understood in the background of the facts of that case. It further says that a case is only an authority for what it actually decides and not what logically follows from it. The decision reported in AIR 1988 SC 1531 at page 1548 deals with the decisions which are "Per Incuriam". A decision gets that nomenclature which is given either in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the said Court. The decision reported in AIR 1988 SC 1531 at page 1548 deals with the decisions which are "Per Incuriam". A decision gets that nomenclature which is given either in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the said Court. Decision reported in 1991(4) SCC 139 at Para-40 also lays down the same principle. 7. The Ld. Advocate has taken me through the certified copy of the order sheet of the Lower Court and also the xerox copy of the decision of the earlier revisional case in support of his contention that the factual aspects as revealed from the certified copy of the charge sheet is at variance with the facts as placed before the Ld. Judge, dealing with the said revisional case. My attention has been drawn to that aspect of the decision where in order dated 30.1.95, the Ld. Special Judge, while dealing with the application made by the investigating officer praying for time for further investigation did not pass any order. It was submitted before the Ld. Judge of this Court dealing with the revisional application that the Presiding Officer was on leave on 30.1.95, a fact which weighed with the Ld. Judge. The Ld. Advocate for the petitioner has taken me through the certified copy of the order sheet of the Special Court Case No. 15 of 1994, the Court of the Judge, Special Court, Jalpaiguri to show that on 30.1.95 the Ld. Judge was very much present. It appears from the certified copy of the orders starting from the order dated 2.8.94 that one R.D. Kundu was the Judge in question and it is he, who appears to have signed the order dated 30.1.95 which reads as follows, I.O. files a petition praying for time to submit the report or charge sheet. Let it be kept with the record". The subsequent order dated 15.2.95 however, says that on the said date the Presiding Judge was on leave and one RS. Das was in charge. The Presiding Judge was found to be presented on 8.3.95 when a prayer was made by the I.O. for time for submitting the report in final from and time was granted till 20.4.95 for appearance of the accused and order awaiting receipt of report of the I.O. On 30.3.95 charge sheet was received and cognizance was taken. The Presiding Judge was found to be presented on 8.3.95 when a prayer was made by the I.O. for time for submitting the report in final from and time was granted till 20.4.95 for appearance of the accused and order awaiting receipt of report of the I.O. On 30.3.95 charge sheet was received and cognizance was taken. But prior to that on 28.3.95 there was a petition from the defence accompanied by a letter of an Advocate of this Court communicating the information that further proceeding of the criminal case has been stayed by this Court. The I.O. Special Judge, however, ignored this fact and two days thereafter took cognizance of the offence. He however, realised the mistake and by subsequent order dated 21.4.95 vacated the earlier order of taking cognizance. Such cognizance was however taken at a much later date, namely, on 7.6.95. 8. The aforesaid narration clearly shows that the Presiding Judge was very much present on 30.1.95 when a simple prayer for further time to complete investigation was made before him. He did not pass any order but directed the petition to be kept with the record. The admitted position is that on 1.8.94 two of the accused were arrested in connection of this case and they were produced on 2.8.94 before the Ld. Judge. Therefore, the investigation in accordance with the West Bengal Amendment cannot continue beyond 30.1.95 unless time is extended on the prayer of the I.O. for special reason and in the interest of the case. The wording of the West Bengal Amendment is clear enough to conclude that this extension is not as a matter of course but the extension is to be allowed only for special reason and in the interest of the case in question. Therefore, such an extension must be by a speaking order and must be based on a petition from the investigating officer making out a case specifying the reasons necessitating such extension. In the present case the prayer made by the I.O. was stereotyped and there being no order passed by the Presiding Judge even though he was very much presented and the application for time was before him indirectly shows that such prayer was not allowed. In any case mere filing of an application for extension is not enough for taking away the right of the accused given by the West Bengal Amendment. In any case mere filing of an application for extension is not enough for taking away the right of the accused given by the West Bengal Amendment. Even though the legal position being absolutely clear, there is no need to refer to any decision on this point still the Ld. Advocate for the petitioner relied on a number of decisions. In 97 CWN 822 being decision of a Special Bench of this Court, it was specifically held that investigation is to be completed within time under s. 167(5) Cr.P.C. as amended in West Bengal. It has been held that continuance of investigation beyond the statutory period without an order allowing extension and the submission of charge sheet beyond the period is bad and void. In 94 CWN 981 which is also a Division Bench decision of this Court the fact was even more remarkable in as much as following submission of charge sheet beyond the statutory period without there being any extension allowed by the concerned Court, there was conviction following full trial. The objection was taken at the appellate stage and the objection was allowed and the conviction was set aside on that ground alone. In the decision reported in CLT 1992(1) HC 226, it has been held that prayer for extension as also consideration of the prayer by the Magistrate of the Court concerned assigning special reasons must be passed before the expiry of the statutory period fixed for investigation. 9. Therefore, in the present case there was neither any prayer for extension in accordance with spirit of the West Bengal Amendment nor an order allowing extension was passed at any point of time by the concerned Court. Therefore, the continuance of investigation beyond the statutory period of six months, submission of charge sheet at a much later date as also taking of cognizance of such charge sheet cannot stand in the eye of law. In the circumstance, the earlier decision, concerning two of the co-accused in the Criminal Revision No 392 of 1995 cannot make the present revisional not maintainable. The said decision with all respect to the Ld. Judge, must be treated as a decision "Per Incuriam" in view of the apparent mistake in the factual position as also the legal aspect as enunciated by a number of decisions of this Court both by Division Bench as well as by Special Bench. The said decision with all respect to the Ld. Judge, must be treated as a decision "Per Incuriam" in view of the apparent mistake in the factual position as also the legal aspect as enunciated by a number of decisions of this Court both by Division Bench as well as by Special Bench. In the result, the Special Court case cannot but be quashed. 10. Accordingly the revisional application stands allowed on contest and the Special Court Case No. 15 of 1994 pending before the Ld. Judge, Special Court, Jalpaiguri stands quashed. Revisional application allowed. Proceedings before Special Court quashed.